H. B. 2647


(By Delegate Pulliam)
[Introduced March 19, 1993; referred to the
Select Committee on Health Care Policies then
Finance.]




A BILL to amend article two-a, chapter twenty-three of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section three; to amend chapter thirty-three of said code by adding thereto a new article, designated article sixteen-e; to amend article seven, chapter fifty-five of said code by adding thereto four new sections, designated sections eighteen, nineteen, twenty and twenty-one; and to amend and reenact section four, article seven-b of said chapter fifty- five, all relating to exhaustion of employee health benefits before workers' compensation payments are made; the basic health care for employees act; listing findings and purpose; defining certain terms; requiring all employers to provide certain basic health care coverages for employees and dependents by the first day of January, one thousand nine hundred ninety-four; requiring employers to pay not less
than seventy-five percent of the premiums; continuation of premiums during certain illnesses; phase-in of employers with twenty-five or fewer employees; delaying requirements for new employers; waiver of coverage by certain employees; requiring health insurers to provide community rated pool coverage; providing for discontinuance of coverage; providing for renewal of coverage; nonrenewal for cause; penalty for violations; enforcement by the insurance commissioner; listing basic benefits covered; listing certain exclusions; providing for optional coverages; providing that health care maintenance organizations are qualified as insurers; providing for cost sharing; deductions; establishing an employers health care commission; cost containment dialogue; tort reform generally; allowing periodic payments of awards for personal injuries; admissibility of collateral source payments; meritorious claim filing requirement; limiting attorney fees in civil actions; and reducing time for filing suit alleging medical malpractice from ten to six years.
 Be it enacted by the Legislature of West Virginia:
That article two-a, chapter twenty-three of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new section, designated section three; that chapter thirty-three of said code be amended by adding thereto a new article, designated article sixteen-e; that article seven, chapter fifty-five of said code be amended byadding thereto four new sections, designated sections eighteen, nineteen, twenty and twenty-one; and that section four, article seven-b of said chapter fifty-five be amended and reenacted, all to read as follows:
CHAPTER 23. WORKERS' COMPENSATION.

ARTICLE 2A. SUBROGATION.

§23-2A-3. Effect of employee's health insurance on disbursements by the workers' compensation fund or self-insured employers.

The commissioner shall not disburse any moneys from the workers' compensation fund to the employees of employers subject to this chapter as defined in section one, article two of this chapter which employees have applicable health insurance that pays for, reimburses or otherwise compensates the employee for the treatment of the employees's injuries that would otherwise be covered by the workers' compensation fund. Further, employers who have elected to provide their own system of compensation pursuant to section nine, article two of this chapter shall not disburse any moneys from their system of compensation, which employees have applicable health insurance that pays for, reimburses or otherwise compensates the employee for the treatment of the employee's injuries that would otherwise be covered by that employer's system of compensation. This limitation on workers' compensation benefits and employer's system of compensation applies only up to the limits of the employee's applicable health insurance. Therefore, thecommissioner and self-insured employers shall be responsible for paying the cost of any treatment incurred by the employers which is not covered by the employer's health insurance including any co-pay and deductible payments for which the employer would otherwise pay. This section is designed to prevent the workers' compensation fund and self-insured employers from providing the primary benefits when the covered employee maintains applicable health insurance, regardless of whether the health insurance is provided by his or her employer, by the employee or by any other means. This section in no way affects the exemption of contributing employers from liability pursuant to section six, article two of this chapter.
CHAPTER 33. INSURANCE.

ARTICLE 16E. BASIC HEALTH CARE FOR EMPLOYEES ACT.

§33-16E-1. Title.

This article shall be known and may be cited as the basic health care for employees act.
§33-16E-2. Findings and purpose.

It is the intent of this measure to ensure that all employed West Virginians have access to affordable medically necessary health care.
(a) The Legislature finds and declares as follows:
(1) Over two hundred fifty thousand people in West Virginia have no health care coverage. Many of these people are employed or are dependents of employed persons. Most of these people are working at jobs where health care coverage is not provided and atwages which make it impracticable for them to purchase private health care coverage.
(2) Basic health care as defined herein can be provided at a cost not to exceed an average of two thousand one hundred dollars per employee except as annually adjusted for inflation. Should the cost of basic health care exceed an average of two thousand one hundred dollars per employee, for any reason other than annual inflation adjustment, then the commission shall change the benefits offered to reduce the cost of the basic health care coverage to an average of two thousand one hundred dollars per employee.
§33-16E-3. Definitions.

Unless the context requires otherwise, the definitions set forth in this article shall govern the construction and meaning of the terms and phrases used in this chapter.
(a) "Basic health care coverage" means a health plan that provides basic health care services meeting the standards set forth in this chapter.
(b) "Carrier" means any insurer, health care service plan, self-funded employer-sponsored plan, multiple employer trust, multiple employer welfare arrangement as defined by federal law (29 U.S.C. Section 1002 (40) (A) ). Taft-Hartley Trust as defined by federal law (42 U.S.C. Section 186), or other entity which writes, issues, administers, provides or pays for health care services in this state.
(c) "Commission" means the employer's health care commissionwhich shall be comprised of the following five members who shall serve for three years and who may be reappointed:
(1) One physician appointed by the West Virginia State Medical Association;
(2) One hospital representative appointed by the West Virginia Hospital Association;
(3) One insurance industry representative appointed by the insurance commissioner;
(4) One employer representative appointed by the state chamber of commerce; and
(5) One employee representative appointed by the governor.
(d) "Community rate" means the premium determined for basic health care coverage in each geographic region on a per person or per family basis and may vary with the number of persons in a family, but the premium must be equivalent for all individuals and for all families of similar composition, regardless of the sex, occupation or other factor which has or might affect the cost experience of an enrollee, other than age.
(e) "Cost-sharing" means any deductible, copayment, coinsurance or any other mechanism other than a premium payment whereby an employee pays for a portion of the cost of health services provided to the employee or the employee's dependent.
(f) "Dependent" means the spouse, child or adopted child up to age twenty-two, and permanently disabled child of the covered employee.
(g) "Employee" means any person who works at least seventeenand one half-hours per week or seventy hours per month for any single employer in a bona fide employer-employee relationship, more than sixty days in any calendar year. "Employee" shall not include an independent contractor, or any registered student in a postsecondary educational institution working for that institution and who is covered under institutionally sponsored student health services.
(h) "Employer" on the day of enactment of this article means any person, partnership, corporation, association, joint venture or public or private entity employing for wages or salary twenty- five or more employees at any one time to work in this state. Effective the first day of January, one thousand nine hundred ninety-five, "employer" means any person, partnership, corporation, association, joint venture or public or private entity employing for wages or salary ten or more employees at any one time to work in this state. Effective the first day of January, one thousand nine hundred ninety-six, "employer" means any person, partnership, corporation, association, joint venture or public or private entity employing for wages or salary five or more employees at any one time to work in this state. Effective the first day of January, one thousand nine hundred ninety seven, "employer" means any person, partnership, corporation, association, joint venture or public or private entity employing for wages or salary one or more employees at any one time to work in this state.
(i) "Enrollee" means each individual with at least basichealth care coverage.
(j) "Geographic region" means a section of West Virginia or the state as defined and approved by the insurance commissioner.
(k) "Health care provider" means a person, partnership, corporation, facility or institution licensed, certified or authorized by law to provide professional health care service in this state to an individual during this individual's medical care, treatment or confinement.
(l) "Health insurer" means any insurer or health care service plan authorized to provide or pay for health care services in this state and regulated by the insurance commissioner.
(m) "Health plan" means a program providing health care services directly or through insurance, reimbursement or otherwise.
(n) "Pool" means a small employer health benefits purchasing pool for a geographic region based on community rating.
(o) "Practice parameter" means a strategy for patient management developed to assist physicians in clinical decision making, and includes standards, guidelines and other patient management strategies. Only practice parameters which have been developed in conformance with the "Attributes to Guide the Development of Practice Parameters" published by the American Medical Association and Specialty Society Practice Parameters Partnership or similar professional association may be approved.
(p) "Premium" means the monthly per enrollee amount whichthe carrier charges for providing basic health care coverage, or, for self-insured plans, the monthly per enrollee amount which the commission determines to be the actuarially sound cost of the basic health care coverage, or for carriers providing partial insurance to self-insured plans, the total of the monthly per enrollee amount which the carrier charges for providing basic health care coverage and the monthly per enrollee amount which the commission determines to be the actuarially sound cost of the self-insured portion of the basic health care coverage.
(q) "Supplemental policy" means health care coverage for services not included in the basic health care coverage as provided by section five of this article.
(r) "Wages" means all remuneration for services from whatever source, including commissions, bonuses, tips and gratuities paid directly to any individual by his or her employer or a customer.
§33-16E-4. Employee health care coverage.

Effective the first day of January, one thousand nine hundred and ninety-four, every employer as defined in section three of this article, shall provide basic health care coverage to each of that employer's employees and their dependents, including all of the following:
(a) (1) Payment of at least seventy-five percent of the lowest premium for basic health care coverage the employer offers for each covered employee and dependent of a covered employee. Employer may pay the entire premium. Employer must pay theentire premium if employee's total family income for a calendar year is projected to be at or below the federal poverty level for a family of comparable size.
(2) Basic health care coverage to every employee and that employee's dependents effective no later than the first day of the calendar month following the employees's sixty-day anniversary.
(3) Continuation of payments for health care coverage for any employee who is hospitalized or otherwise prevented by sickness or injury from working and earning wages, and for whom sick leave benefits are exhausted, and for that employee's dependents. This obligation shall continue for three calendar months following the month during which the employee became hospitalized or disabled from working, or until the month the employee becomes eligible for other public or private coverage, whichever occurs first.
(b) The commission may delay the phase-in of employer coverage by no more than two years for employers with fewer than twenty-five employees if the state's economic condition would place an undue hardship on the state's small employers.
(c) (1) No new employer shall be required to provide basic health care coverage until twenty-seven months after the date the new employer first received an employer tax identification number from the tax commissioner. The commission shall adopt regulations designed to ensure that this exemption applies only to bona fide start-up enterprises and not to businesses resultingfrom the sale, reorganization or other alteration of an existing enterprise.
(2) A new employer may waive the exemption set forth in subsection (c) (1) by submitting a written waiver on a form prescribed by the commission.
(d) Nothing in this article shall be construed to limit the right of employees to bargain collectively for different health care coverage, if the protection provided by the negotiated plan is at least actuarially equivalent to the protection afforded by this article. This article shall be applicable with respect to any employees who do not receive at least this level of protection or who are not covered by the health care provisions of the applicable collective bargaining agreements to which their employer is a party.
(e) An employer shall not be required to provide health care coverage pursuant to this article with respect to any employee or dependent if the employee waives enrollment of the employee or the employee's dependent in writing pursuant to subsection (h) which follows.
(f) Employers shall deduct from the wages owed to any employee the amount sufficient to cover the employee's contribution, if any, to the premium required by this section.
(g) An employee shall pay for any portion of the premium not covered by the employee's employer.
(h) (1) An employee may not waive basic health care coverage for the employee or the employee's dependents except as providedin this section, which requires an employee to waive basic health care coverage as necessary to avoid duplicate coverage. The employee shall have the right to elect which coverage to waive should a waiver be required by this section unless the choice is between two actuarially comparable plans in which case the plan whose primary enrollee has the first birthday in a calendar year shall be the plan to provide coverage.
(2) An employee that has basic health care coverage for the employee or the employee's dependent or both must waive any duplicate coverage, but only for the period that the employee or the dependent, or both, has at least basic health care coverage.
(3) A dependent minor who is employed, or a parent or guardian on the behalf of a dependent minor under twelve years of age, must waive basic health care coverage provided by the dependent minor's employer, but only if and for the period that the dependent minor, or parent or guardian on behalf of the dependent minor, has at least basic health care coverage.
(4) In the case of an individual who is an employee with respect to more than one employer, the employee must waive basic health care coverage from all but one employer, such that the employee and each dependent has only one basic health care coverage.
(5) An employee who waives health care coverage pursuant to this section shall notify his or her employer immediately if the duplicate coverage is terminated, and shall enroll in the employer's health care plan effective not later than the firstday of a calendar month following thirty days from the date of the termination of coverage.
(i) All health insurers shall offer to all employers with one hundred employees or less within the service area of the health insurer an option to participate in a basic health care coverage community rated pool. All health insurers in a service area must offer a community rated pool for employers with under twenty-five employees. Health insurers shall charge a single community rate in the same geographic region for the basic health care coverage pool, except that the premium rate offered to any employer with one hundred employees or less shall not exceed that insurer's community rate for basic health care coverage for employers with one hundred employees or more in the geographic region by more than thirty percent.
(j) Notwithstanding the provisions of subsection (i) of this section, where it maintains a network, a health insurer may cease to offer coverage to employers not already contracting with it where the health insurer reasonably anticipates that it will not have the capacity within its network of associated health providers to deliver services adequately to additional enrollees because of its obligations to existing group contract holders and enrollees. A health insurer which ceases to offer coverage pursuant to this section, may not enroll new groups of employers unless it resumes offering coverage pursuant to subsection (i) of this section. Any health insurer which is offering health care coverage in a geographic region must accept every employer withone hundred employees or less that requests a rate quote and accepts the rate quote received, provided the employer complies with the requirements of the group contract or policy.
(k) Carriers shall not exclude or otherwise limit any individual from group coverage under any plan of basic health care coverage on the basis that the individual has, or at any time has had, any disease, disorder or condition.
(l) Coverage accepted by employers shall be renewable with respect to all eligible employees or dependents at the option of the policy-holder or contract holder except:
(1) For nonpayment of the required premiums by the policy- holder or contract holder;
(2) For fraud or misrepresentation of the policy-holder or contract holder;
(3) For material noncompliance with plan provisions.
(m) A carrier may offer and provide health care coverage which exceeds the requirements established for basic health care coverage through a supplemental policy. Subsection (i) to (l) of this section inclusive, shall apply to the basic health care coverage portion of that coverage, but shall not apply to the supplemental policy providing coverage which exceeds that required for basic health care coverage.
(n) Any carrier that violates any provisions of this article shall be deemed to have committed a violation of its enabling or licensing statutes, subjecting it to all enforcement actions available to the insurance commissioner and any other enforcementarm of the state.
(o) An employer shall not fail or refuse to hire, and shall not discharge or otherwise discriminate against, any individual because the individual has a spouse or child or other dependent and the employer would be required by this article to provide basic health care coverage for the spouse or child or other dependent. A violation of this section constitutes unlawful discrimination within the meaning of the "West Virginia Human Rights Act."
(p) Any employer who fails to provide at least basic health care coverage as required by this article shall be liable for twice the health care costs incurred by an employee or that employee's dependent during the period in which the employer failed to provide coverage, and the employee's reasonable attorney's fees.
§33-16E-5. Basic health care benefits.

Basic health care coverage provided in accordance with this article shall include the provision of or payment for all of the following in each calendar year which are medically necessary for the diagnosis, treatment or prevention of injury or illness, or to improve the functioning of a malformed body member of enrollee, except as otherwise provided in this article:
(a) Hospital inpatient care for a period not to exceed forty-five days in a hospital licensed pursuant to section one, article five-b, chapter sixteen of the code, including all of the following:
(1) Room and board, in a semi-private room and special diets when prescribed as medically necessary, and general nursing services.
(2) Hospital services, including use of operating, delivery and recovery room and related facilities; intensive, coronary, and other medically necessary care unit and services; diagnostic services; drugs; oxygen; blood; biological; supplies; appliances and equipment; dialysis, detoxification services; rehabilitation unit charges; care for pregnancy and complications; and other medically necessary ancillary services.
(b) Medical and surgical services, which shall be provided on an outpatient basis when medically appropriate, including all of the following:
(1) Surgical services and supplies;
(2) Radiology, nuclear medicine, ultrasound, laboratory and other diagnostic services;
(3) Emergency room use and treatment and supplies;
(4) Dialysis care;
(5) Detoxification services.
(c) Maternal and child care as medically necessary and appropriate, including all of the following:
(1) Prenatal and postnatal care;
(2) Pregnancy care including complications;
(3) Delivery;
(4) Immunizations and well-child care up to age eight, using American academy of pediatrics guidelines.
(d) Physician services as medically necessary and appropriate, including all of the following:
(1) All inpatient care;
(2) Up to twenty office visits per year;
(3) Diagnostic and therapeutic services;
(4) Medical or surgical treatment of illness or injury;
(5) Diagnostic imaging;
(6) Laboratory services;
(7) Detoxification services;
(8) Psychiatric services to same extent as other physician services.
(e) Dental services limited to repair necessitated by injury to sound teeth or jaw.
(f) Home health services as medically necessary and appropriate and prescribed by a physician, including all of the following:
(1) Up to two hundred forty visits per year;
(2) Physician services;
(3) Services of nurses, aids and medical social workers under physician supervision;
(4) Medical supplies, appliances;
(5) Oxygen, blood, biologicals;
(6) Ancillary services.
(g) Other covered services to include all of the following:
(1) Ambulance;
(2) Skilled nursing facility, up to one hundred eighty daysper year;
(3) Morbid obesity and medical condition reasonably responsive to weight loss treatment.
§33-16E-6. health care coverage exclusions.

Basic health care coverage provided in accordance with this article is not required to include any of the following:
(a) Anything which is either:
(1) Not recognized in accord with generally accepted medical standards as being medically necessary or effective for use in the treatment in question; or
(2) Determined by the commission to be outmoded, not efficacious, outside a practice parameter or not sufficiently cost-effective;
(b) Routine physicals, routine screening tests and exams;
(c) Eyeglasses, contact lenses (except lenses for keratoconus, or following cataract surgery, or corneal transplantation), radial or hexagonal keratotomy, routine eye examinations, including eye refractions, hearing aids, orthopedic shoes;
(d) Outpatient prescription and nonprescription drugs;
(e) Sterilization and sterilization reversal, artificial insemination and family planning;
(f) Cosmetic surgery;
(g) Custodial or domiciliary care;
(h) Hospice;
(i) Outpatient speech, occupational and physical therapy;
(j) Personal comfort items;
(k) Weight loss programs unrelated to medical conditions;
(l) Health care services received from or paid for by the veterans' administration, benefits paid under any workers' compensation or any employers' liability law or federal law for the injury or illness, or any accident insurance;
(m) Conditions resulting from acts of war whether declared or not;
(n) Any service or supply not specifically listed as a covered service or supply.
§33-16E-7. Optional coverage.
Nothing in this article shall prohibit employers from offering employees additional coverages as may be available with premiums for such additional coverage to be paid by the employer or the employee or to be shared; however, this section does not alter the requirement that the employer must pay at least seventy-five percent of the lowest premium for basic health care coverage for the employee and his or her family.
§33-16E-8. Health maintenance organizations.
Health plans providing the minimum requirements for benefits mandated for federally qualified health maintenance organizations established by Title XIII of the United States Public Health Service Act (Subchapter 11 (commencing with Section 300e) of Chapter 6A of the United States Code) or for health care service plans by the health Maintenance Organization Act of 1977 which provide at least the basic health care coverage specified insection five of this article shall be deemed to constitute basic health care coverage so long as they otherwise comply with the requirements of this article.
§33-16E-9. Cost sharing.
Basic health care coverage shall include provisions for cost sharing per year which is the same as or actuarially equivalent to the following:
(a) The basic deductible is three hundred fifty dollars per individual employee and seven hundred fifty dollars for employee and his family. The deductible does not apply to prenatal and postnatal care of mother and infant, nor for well-child and immunizations up to age eight.
(b) Copayments for health care shall be as follows:
(1) The insured enrollee pays twenty percent of charges except as otherwise set forth in this article and up to the maximums set forth in this section;
(2) The insured enrollee pays thirty percent of all charges for the first one thousand dollars of services, after the deductible;
(3) The insured enrollee pays thirty percent of all inpatient room and board charges;
(4) The insured enrollee pays thirty percent of all outpatient facility services;
(5) The enrollee pays twenty-five dollars towards all emergency room visits, after the deductible.
(c) The employee's total annual out-of-pocket expenses forcopayments and deductibles may not exceed one thousand five hundred dollars per individual employee and three thousand dollars per family. Deductible and copayment amounts, but not premium payments, go toward meeting the out-of-pocket maximum amounts as set forth in this section.
(d) the lifetime benefit limit is one million dollars per enrollee.
§33-16E-10. Employers health care commission.
The commission members as appointed under the provisions of subsection (c) of section two of this article shall serve without pay but be reimbursed for their expenses in attending meetings. The commission shall meet at least twice yearly and more as may be required. Members of the commission shall be appointed for a three-year period and may be reappointed.
The commission shall adopt regulations as may be necessary to implement its obligations under this article.
§33-16E-11. Cost containment.
Basic health care insurance coverage which is affordable to employers and employees of this state requires all participants to work together to contain costs. The commission shall undertake dialogue with all constituencies for the purposes of recommending future cost containment legislation in addition to the following:
(a) All health care providers will publish price information to patients regarding fees, costs, hospital beds and services before treatment;
(b) Carriers will provide on a prospective basis information on the amounts they will pay for medical services provided in the basic health care coverage;
(c) Carriers will identify for enrollees those procedures needing preauthorization and reduce the use of postprocedure review;
(d) All state laws mandating health benefits not included in the definition of basic health coverage herein are superseded by this article and are amended and reenacted to require only basic health coverage as set forth in this article;
(e) The commission will assist the insurance commissioner, to the extent requested, with the implementation of section three, article fifteen-b, chapter thirty-three, specifically the development of uniform health care claim forms;
(f) To limit the cost of basic health care coverage to an average of two thousand one hundred dollars per employee per year, reductions in insurance, health care administration and legal costs must be realized or basic coverage will be reduced by the commission. When requested by the commission, the insurance commissioner will gather data and report to the commission regarding cost-saving measures undertaken or proposed to meet the objective of affordable basic health care; and
(g) The insurance commissioner annually shall report to the commission the average premium being charged for a single employee and for employees with families in the state of West Virginia.
CHAPTER 55. ACTIONS, SUITS AND ARBITRATION;

JUDICIAL SALE.

ARTICLE 7. ACTIONS FOR INJURIES.

§55-7-18. Periodic payments of awards for personal injury.
(a) Where a plaintiff recovers a judgment from a defendant in an action for personal injuries, and such judgment is in excess of one hundred thousand dollars, the court in which such action is brought shall, at the request of either party, order that:
(1) There shall be deducted from the award, and paid to the plaintiff, an amount sufficient to cover plaintiff's expenses directly related to the litigation as well as attorney's fees;
(2) The remainder of the award shall be paid to the plaintiff in a periodic payment as specified by the court in which the judgment was rendered.
(b) The judgment ordering the payment of future damages by periodic payments shall specify the recipient or recipients of the payments, the dollar amount of the payments, the interval between payments, and the number of payments or the period of time over which the payments shall be made. Such payments shall be subject to modification only upon a showing of a change in the economic condition of the parties since the judgment date sufficient to justify such modification: Provided, That money damages awarded for loss of future earnings shall not be reduced or payments terminated by reason of death of the judgment creditor, but shall be paid to persons to whom the judgmentcreditor owed a duty of support, as provided by law, immediately prior to his death. In such cases, the court which rendered the original judgment, may, upon petition of any party in interest, modify the judgment to award and apportion the unpaid future damages in accordance with this article.
(c) In the event that the court finds that the judgment debtor has exhibited a continuing pattern of failing to make the payments, as specified in subsection (b) of this section, the court shall find the judgment debtor in contempt of court and, in addition to the required periodic payments, shall order the judgment debtor to pay the judgment creditor all damages caused by failure to make such periodic payments, including court costs and attorney's fees.
(d) Periodic payments means the payment of money or delivery of other property to the judgment creditor at regular intervals.
§55-7-19. Collateral source evidence; elimination of double recoveries act.

(a) In any action for personal injury, the defendant may introduce evidence of any amount or other benefit which is or will be payable as a benefit to the plaintiff as a result of the injury or death pursuant to the United States Social Security Act, any state or federal worker's compensation act, any disability, health, sickness, life, income-disability or accident insurance that provides health benefits or income-disability coverage and any other contract or agreement of any group, organization, partnership, or corporation to provide, pay for, orreimburse the cost of income-disability or medical, hospital, dental or other health care services in order to establish that any cost, expense or loss claimed by the plaintiff as a result of the injury or death is subject to reimbursement or indemnification from such collateral source. Where the defendant elects to introduce such evidence, the plaintiff may introduce evidence of any amount which the plaintiff has paid or contributed to secure the plaintiff's right to any such benefits, that recovery from the defendant is subject to a lien, that a provider of such collateral benefits has a statutory right of recovery against the plaintiff as reimbursement for such benefits or that the provider of such benefits has a right of subrogation to the rights of the plaintiff in the action for personal injury.
(b) Evidence introduced pursuant to this section is admissible for the purpose of considering the damages claimed by the plaintiff and shall be accorded such weight as the trier of the facts chooses to give it.
(c) Unless otherwise expressly permitted to do so by statute, no provider of collateral benefits, as described in subsection (a), may recover any amount against the plaintiff as reimbursement for such benefits nor shall such provider be subrogated to the rights of the plaintiff.
§55-7-20. Filing requirement; certification of merit.

Upon filing of a professional liability or a product liability action wherein expert testimony is necessary to prove a prima facie case, the attorney bringing the action on behalf ofthe plaintiff or his or her representative shall attach to the complaint an affidavit stating the following:
(a) A qualified professional expert practicing in the same or similar field as each defendant has prepared a written report which reflects his or her belief that there is a "reasonable and meritorious cause for filing such action" and a copy of such report shall be attached thereto; or
(b) That there is in his or her belief a meritorious claim but expert testimony is not necessary to establish a prima facie case against the defendant and no expert will testify at the trial.
In the event the affidavit states no expert is necessary, the plaintiff or his or her representative will be precluded from presenting expert testimony at the trial of such action on the question of liability.
§55-7-21. Limitation on attorney fees in civil actions wherein a party maintains insurance coverage.

In any civil action wherein a party maintains insurance coverage for the act complained of either, in whole or in part:
(a) An attorney may not contract for or collect a contingency fee for representing any person seeking damages in connection with an action for injury or damage based upon such person's alleged negligence in excess of the following limits:
(1) Forty percent of the first fifty thousand dollars recovered;
(2) Thirty-three and one third percent of the next fiftythousand dollars recovered;
(3) Twenty-five percent of the next five hundred thousand dollars recovered;
(4) Fifteen percent of any amount on which the recovery exceeds six hundred thousand dollars.
The limitations apply regardless of whether the recovery is by settlement, arbitration or judgment, or whether the person for whom the recovery is made is a responsible adult, an infant or a person of unsound mind.
(b) For purposes of this section:
"Recovered" means the net sum recovered after deducting any disbursements or costs incurred in connection with prosecution or settlement of the claim. Costs of medical care incurred by the plaintiff and the attorney's office-overhead costs or charges are not deductible disbursements or costs for such purpose.
ARTICLE 7B. MEDICAL PROFESSIONAL LIABILITY.

§55-7B-4. Health care injuries; limitations of actions; exceptions.

(a) A cause of action for injury to a person alleging medical professional liability against a health care provider arises as of the date of injury, except as provided in subsection (b) of this section, and must be commenced within two years of the date of such injury, or within two year of the date when such person discovers, or with the exercise of reasonable diligence, should have discovered such injury, whichever last occurs: Provided, That in no event shall any such action be commencedmore than ten six years after the date of injury.
(b) A cause of action for injury to a minor, brought by or on behalf of a minor who was under the age of ten years at the time of such injury, shall be commenced within two years of the date of such injury, or prior to the minor's twelfth birthday, whichever provides the longer period.
(c) The periods of limitation set forth in this section shall be tolled for any period during which the health care provider or its representative has committed fraud or collusion by concealing or misrepresenting material facts about the injury.



NOTE: The purpose of this bill is to establish an employer based system of universal health care insurance in this state. The bill requires all employers to provide basic health care insurance to employees and their dependents. The bill requires that health benefits be exhausted before workers' compensation payments are made. Employers are required to pay seventy-five percent of premiums. Small employers and new employers are phased into the program. The bill gives insurance commissioner certain enforcement provisions. The bill provides that certain basic benefits will be covered and it also allows for optional coverage of additional benefits; an employees health care commission is established to pursue reductions in health care costs. The bill includes tort reforms including: Periodic payments of awards for personal injuries; admissibility of collateral source payments; meritorious claim filing requirements; limits on attorney fees; and reducing time allowed for filing suit alleging medical malpractice from ten to six years.

§23-2A-3, §33-16E and §55-7-18,19,20 and 21 are new; therefore, strike-throughs and underscoring have been omitted.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.