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.