Senate Bill No. 338

(By Senators Chafin and Manchin)

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[Introduced February 14, 1994; referred to the Committee
on the Judiciary.]

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A BILL to amend article seven-b, chapter fifty-five of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section eight-a, relating to the reduction of damages by the amount of money a plaintiff receives from collateral sources in a medical professional liability action.

Be it enacted by the Legislature of West Virginia:
That article seven-b, chapter fifty-five of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new section, designated section eight-a, to read as follows:
ARTICLE 7B. MEDICAL PROFESSIONAL LIABILITY.

§55-7B-8a. Definition; disclosure of collateral benefits; effect on amount of damages.

(a) As used in this section:
(1) "Collateral benefits" means any benefit that a plaintiff has received, is entitled to receive or may be entitled toreceive in the future as a result of an injury, death or loss to person or property that is the subject of a medical professional liability action, as defined in subsection (d), section two, article seven-b, chapter fifty-five of the code of West Virginia, from any of the following:
(A) The government of the United States, or any state or any political subdivision of any state, under a program that provides medical, hospital, sickness, dental or other health benefits including, but not limited to, social security, medicare and medicaid;
(B) A federal, state or political subdivision of a state disability income or workers' compensation program or a wage continuation program of an employer;
(C) A medical, hospital, sickness, dental or other health insurance program;
(D) An accident insurance program that provides medical, hospital, sickness, dental or other health benefits;
(E) A contract or agreement under which medical, hospital, sickness, dental or other health service are provided or under which the cost of those services are paid for or reimbursed.
(2) "Right of recoupment" means right of recoupment through subrogation, trust agreement, contract, lien, operation of law or otherwise.
(3) "Plaintiff" means any named plaintiff in a medical professional liability action and any person who is a beneficiary of a medical professional liability action.
(b) Any complaint or other pleading that sets forth a medical professional liability action shall be accompanied by an affidavit signed by the plaintiff listing all collateral benefits that the plaintiff has received, is entitled to receive or may be entitled to receive in the future as a result of an injury, death or loss to person or property that is the subject of that medical professional liability action.
(c) To the extent that any past or future loss or damages have been or will be paid or offset by any collateral benefit, such losses or damages may not be recovered in any medical professional liability action, as defined in subsection (d), section two, article seven-b, chapter fifty-five of the code of West Virginia.
(1) Not less than sixty days prior to the commencement of trial, the court shall hold a hearing to determine all past and future collateral benefits that the plaintiff has received, is entitled to receive or may receive in the future that are not subject to a valid right of recoupment. Not less than thirty days prior to the commencement of trial the court shall enter an order setting forth all such collateral benefits. For the purpose of determining future collateral benefits it shall be presumed that benefits currently available under any program contract or agreement described in subparagraphs (A) through (E) of subdivision (1), subsection (a) of this section will continue in the future unless such program, contract or agreement expressly provides for its termination.
(2) To the extent that any past and future damages or loss has been or will be paid or offset by any collateral benefit, evidence of such damages or loss shall not be admitted.
(d) Unless otherwise expressly provided by statute, collateral source of indemnity shall not have a right of recoupment in a medical professional liability action. If such right is found to exist pursuant to statute, unless otherwise expressly provided by such statute, the party seeking recoupment is the sole real party in interest to such recoupment and must bring any claim in its own name by intervening in the medical professional liability action.



NOTE: The purpose of this bill is to reduce the amount of damages a plaintiff can receive in a medical professional liability action by the amount received from collateral sources.

§55-7B-8a is new; therefore, strike-throughs and underscoring have been omitted.