H. B. 2555
(By Delegates Haskins, Yeager and Henderson)
[Introduced February 17, 1995; referred to the
Committee on the Judiciary then Finance.]
A BILL to amend chapter fifty-five of the code of West Virginia,
one thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article seven-d, relating
to medical malpractice review panels; arbitration of
Be it enacted by the Legislature of West Virginia:
That chapter fifty-five of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, be amended by
adding thereto a new article, designated article seven-d, to read
ARTICLE 7D. MEDICAL MALPRACTICE REVIEW PANELS; ARBITRATION OF
As used in this article:
"Health care" means any act, or treatment performed or
furnished, or which should have been performed or furnished, by
any health care provider for, to, or on behalf of a patient
during the patient's medical diagnosis, care, treatment or
"Health care provider" means a person, corporation, facility
or institution licensed by this state to provide health care or
professional services as a physician or hospital, dentist,
pharmacist, registered or licensed practical nurse, optometrist,
podiatrist, chiropractor, physical therapist, physical therapy
assistant, clinical psychologist, health maintenance organization
or a nursing home as defined in this code, except those nursing
institutions conducted by and for those who rely upon treatment
by spiritual means alone through prayer in accordance with a
recognized church or religious denomination, or an officer,
employee or agent thereof acting in the course and scope of his
or her employment.
"Health maintenance organization" means any person licensed
pursuant to this code who undertakes to provide or arrange for
one or more health care plans.
"Hospital" means a public or private institution licensed
pursuant to this code.
"Impartial attorney" means an attorney who has not
represented: (a) The claimant, his or her family, partners,
coproprietors or other business interests; or (b) the health care
provider, his or her family, partners, coproprietors or other
"Impartial health care provider" means a health care provider
who: (a) Has not examined, treated or been consulted regarding
the claimant or his or her family; (b) does not anticipate
examining, treating, or being consulted regarding the claimant or
his or her family; or (c) has not been an employee, partner or
coproprietor of the health care provider against whom the claim
"Malpractice" means any tort based on health care or
professional services rendered, or which should have been
rendered, by a health care provider, to a patient.
"Patient" means any natural person who receives or should
have received health care from a licensed health care provider
except those persons who are given health care in an emergency
situation which exempts the health care provider from liability
for his or her emergency services in accordance with the laws of
"Physician" means a person licensed to practice medicine or
osteopathy in this state pursuant to this code.
§55-7D-2. Notice of claim for medical malpractice required;
request for review by medical malpractice review
panel; rescission of request; determination on
(a) No action may be brought for malpractice against a health
care provider unless the claimant notifies the health care
provider in writing by registered or certified mail prior to
commencing the action. The written notification shall include
the time of the alleged malpractice and a reasonable description
of the act or acts of malpractice. The claimant or health care
provider may within sixty days of the notification file a written
request for a review by a medical malpractice review panel
established as provided in section four of this article. The request for review shall be mailed to the chief justice of the
supreme court of appeals of West Virginia. Upon receipt of the
request, the chief justice shall designate one sitting or one
retired circuit court judge to act as chairman of the panel. No
actions based on alleged malpractice may be brought within ninety
days of the notification by the claimant to the health care
provider. If a panel is requested no actions based on alleged
malpractice may be brought within the period of review by the
medical review panel.
(b) Whenever the requesting party rescinds a request for
review by a medical malpractice review panel, notice of the
rescission shall be given to counsel for the opposing party at
the time notice is given to the chief justice.
(c) Notice of the determination of the chief justice on a
request for review shall be given to counsel for both parties.
§55-7D-3. Amendment of notice of claim.
After the notice of claim has been delivered or mailed to a
health care provider, the chairman or, if a request for a review
panel has not been filed, the court in which a complaint based on
the claim has been or would be filed, may grant leave to amend the notice to add additional parties or causes of action in
furtherance of the ends of justice except where: (a) The request
for leave to amend is made less than ten days before the date set
for the review panel to convene or for the hearing; or (b) the
chairman or court finds that the request for leave to amend is
without merit. If leave to amend is granted, the chairman or
court may, upon motion of either party, stay the review panel
proceedings or continue the trial, extend the time for completion
of discovery, filing of pleadings and other procedural limitation
periods, or enter other orders as are appropriate to avoid
prejudice to the parties and to avoid unnecessary delay and
duplication in the proceedings.
Leave to amend the notice pursuant to this section may not be
granted if the chairman or court finds that the applicable
statute of limitations has expired with respect to the new or
additional parties or causes of action.
7D-4. Certificate of parties; composition, selection, etc.,
Upon certification by the parties that discovery has been
completed, the chief justice of the supreme court of appeals of West Virginia shall appoint a medical review panel. The
certification may not of itself preclude the taking of additional
discovery in the event an action is subsequently filed. The
medical review panel shall consist of: (a) Three impartial
attorneys and three impartial health care providers, licensed and
actively practicing their professions in the state; and (b) one
sitting or one retired judge of a circuit court who shall serve
as chairman of the panel. The chairman may not vote except in
the case of a tie vote. The medical review panel shall be
selected by the chief justice from a list of health care
providers submitted to him or her by the state board of medicine
and a list of attorneys submitted by the West Virginia state bar.
In the selection of the health care provider members, the chief
justice shall give due regard to the nature of the claim and the
nature of the practice of the health care provider. The members
of the medical review panel shall be sworn by the chairman to
render an opinion faithfully and fairly.
§55-7D-5. Completion of discovery; hearing date; notification to
parties and panel members; oath of panel members.
At the time that the panel chairman is designated, the chief
justice of the supreme court of appeals of West Virginia shall
advise the chairman of the names of the panel members. Within
ten days of receipt of his or her designation the chairman shall
advise the parties of the date set for the completion of
discovery. Nothing in this section may preclude the taking of
additional discovery if an action is subsequently filed.
Except for good cause shown, the date for completion of
discovery may not be set beyond ninety days from the date on
which the chairman was designated. Within the period set for the
taking of discovery and upon consultation with the panel members,
the chairman shall notify the parties of the date set for a
hearing by the review panel, if any, or the date on which the
panel will convene. The date may not be set sooner than ten days
after the date for completion of discovery. Upon completion of
discovery, the chief justice shall notify the parties of the
name, address and professional practice of each panel member and
shall also notify the panel members, in writing, of their
The written notification to the panel members of selection by
the chief justice shall include the definitions of "impartial attorney" and "impartial health care provider" as contained in
section one of this article and a copy of the oath to which the
panel members will be required to subscribe when the panel
convenes. The oath shall be as follows:
"I do solemnly swear (or affirm) that I have no past or
present relationship with the parties nor am I aware of anything
that would prevent me from being impartial in my deliberations.
I further swear (or affirm) that I will render an opinion
faithfully and fairly on the basis of the evidence presented,
applying any professional expertise I may have, giving due regard
to the nature of the claim and the nature of the practice of the
health care provider." A panel member who, for any reason, could
not take the oath of impartiality shall promptly notify the chief
justice, in writing, of such inability. The chief justice shall
then select and notify another panel member in place of and
practicing the same profession as the disqualified member.
§55-7D-6. Submission of evidence to panel; depositions and
discovery; duties of chairman; access to material.
The evidence to be considered by the medical review panel
shall be promptly submitted by the respective parties, upon appointment of the panel, to each member of the panel in written
form. Either party, upon request, shall be granted a hearing
before the panel. The evidence may consist of medical charts,
X-rays, laboratory tests, excerpts of treatises, and depositions
of witnesses, including parties, and, when a hearing is held,
oral testimony before the panel. At the discretion of the
chairman, additional depositions of parties and witnesses may be
taken, or other additional discovery may be had, at any time
prior to hearing by any party. The West Virginia rules of civil
procedure shall govern the taking of depositions: Provided, That
the chairman shall rule on the admissibility of all or any part
of a deposition offered as evidence at the hearing. Either party
may have discovery pursuant to procedures set out in the West
Virginia rules of civil procedure prior to appointment of the
panel or thereafter in the discretion of the chairman. In the
event that any party objects to all or any part of the discovery
proceedings prior to the appointment of the panel or object to
all or part of any additional discovery allowed after the panel
is appointed, the dispute shall be presented to and resolved by
the chairman pursuant to the West Virginia rules of civil procedure.
Within ten days after his or her appointment, the chairman
shall designate the office of a clerk of the circuit court within
the circuit wherein the chairman resides to which office process
shall be returnable. The chairman shall also designate the style
of the case under which process shall issue. Process for
discovery shall issue upon application to the clerk. Any
discovery and any depositions taken for purposes of discovery or
otherwise, under this section, may be used in any subsequent
civil proceeding based upon the same claim for any purpose
otherwise proper under the West Virginia rules of civil
procedure. The chairman of the panel shall advise the panel
relative to any legal question involved in the review proceeding
and shall prepare the opinion of the panel as provided in section
ten of this article. A copy of the evidence shall be sent to
each member upon appointment to the panel. All parties shall
have full access to any material submitted to the panel.
§55-7D-7. Assembly of record; transfer to trial court.
Upon conclusion of deliberations and rendering of an opinion
by the panel, all documentary evidence submitted to the panel, a transcript of the hearing, if any, and a copy of the written
opinion of the panel shall be filed in the office of the clerk
designated pursuant to section six of this article. The record
shall be maintained for one hundred twenty days from the date the
statute of limitations on the claim would run or sixty days
following the issuance of the panel opinion, whichever is later.
However, upon notice and request from the clerk of the court in
which an action is filed within that time period, the record
shall be transferred to the office of the clerk in which the
action is pending. Upon completion of the action, the clerk of
the trial court shall transfer a copy of the panel record to the
executive secretary of the supreme court of appeals of West
Virginia. If no request for transfer is made within the time
period specified, the record shall be transferred to and filed
with the executive secretary of the supreme court of appeals of
West Virginia. The record shall be maintained by the executive
secretary of the supreme court of appeals of West Virginia.
The party filing an action based upon the claim submitted to
the review panel, shall advise the clerk of the trial court at
the time the motion for judgment is filed in which clerk's office the panel record is being held.
§55-7D-8. Removal of record for inspection and copying; notice.
Any party may, upon notice to all other parties or their
counsel, remove any book, record or document which has been filed
with the clerk of the trial court or has become a part of the
permanent record filed with the executive secretary of the
supreme court of appeals of West Virginia for purposes of
inspection and copying. The party removing the documents shall
give an appropriate receipt to the clerk or executive secretary
and shall be responsible for the return of the materials within
§55-7D-9. Conduct of proceedings.
In the conduct of its proceedings:
(a) The testimony of the witnesses shall be given under oath.
Members of the medical review panel, once sworn, shall have the
power to administer oaths.
(b) In the event a hearing is held, the parties are entitled
to be heard, to present relevant evidence, and to cross-examine
witnesses to the extent necessary to enable the panel to render
an opinion as specified in section ten of this article. The rules of evidence need not be observed. The medical review panel
may proceed with the hearing and render an opinion upon the
evidence produced, notwithstanding the failure of a party duly
notified to appear.
(c) The medical review panel may issue or cause to be issued,
on its own motion or on application of any party, subpoenas for
the attendance of witnesses and for the production of books,
records, documents and other evidence. Subpoenas so issued
shall be served and, upon application by a party or the panel to
a court of proper venue having jurisdiction over a motion for
judgment based on the claim, shall be enforced in the manner
provided for the service and enforcement of subpoenas in a civil
action. All provisions of law compelling a person under subpoena
to testify are applicable.
(d) The hearing shall be conducted by all members of the
medical review panel unless the parties otherwise agree. A
majority of the members present may determine any question and
may render an opinion.
§55-7D-10. Opinion of panel.
(a) Within thirty days after receiving all the evidence, the panel shall have the duty, after joint deliberation, to render
one or more of the following opinions:
(1) The evidence does not support a conclusion that the
health care provider failed to comply with the appropriate
standard of care;
(2) The evidence supports a conclusion that the health care
provider failed to comply with the appropriate standard of care
and that the failure is a proximate cause in the alleged damages;
(3) The evidence supports a conclusion that the health care
provider failed to comply with the appropriate standard of care
and that the failure is not a proximate cause in the alleged
(4) The evidence indicates that there is a material issue of
fact, not requiring an expert opinion, bearing on liability for
consideration by a court or jury.
(b) If the review panel's finding is that set forth in
subdivision (2), subsection (a) of this section, the panel may
determine whether the claimant suffered any disability or
impairment and the degree and extent thereof.
(c) The opinion shall be in writing and shall be signed by all panelists who agree therewith. Any member of the panel may
note his or her dissent. All opinions shall be mailed to the
claimant and the health care provider within five days of the
date of their rendering.
§55-7D-11. Limitation on panel opinion.
Unless the parties otherwise agree, any opinion of the panel
shall be rendered no later than six months from the designation
of the panel unless the chairman extends the period one time, not
to exceed ninety days, upon a showing of extraordinary
circumstances. If the opinion of the panel is not rendered
within the time provided, the claimant shall be free to pursue
his or her common-law remedies and any panel opinion rendered
subsequently shall be inadmissible as evidence unless the failure
of the panel to render a decision within the time provided was
caused by delay on the claimant's part.
§55-7D-12. Admissibility of opinion as evidence; appearance of
panel members as witnesses; immunity from civil
An opinion of the medical review panel shall be admissible as
evidence in any action subsequently brought by the claimant in a
court of law, but the opinion may not be conclusive and either party shall have the right to call, at his or her cost, any
member of the panel, except the chairman, as a witness. If
called, each witness shall be required to appear and testify.
The panelist shall have absolute immunity from civil liability
for all communications, findings, opinions and conclusions made
in the course and scope of duties prescribed by this chapter.
§55-7D-13. Notice of claim to toll statute of limitations; when
notice of claim or request for review deemed
The giving of notice of a claim pursuant to section two of
this article shall toll the applicable statute of limitations for
and including a period of one hundred twenty days from the date
the statute of limitations would otherwise run, or sixty days
following issuance of any opinion by the medical review panel,
whichever is later. A notice of rescission of a request for a
medical malpractice review panel or notice of a determination by
the chief justice of the supreme court of appeals of West
Virginia granting or denying a request shall toll the applicable
statute of limitations for and including a period of sixty days
following the giving of the notice.
The notice of a claim pursuant to section two of this article or the request for review of the claim by a medical review panel
shall be deemed to be given when delivered or mailed by
registered or certified mail to the appropriate claimant or
health care provider at his office, residence or last known
The provisions of this section shall apply to all causes of
action arising without regard to the date the cause of action
arose, except to the extent that any cause of action was barred
by the applicable statute of limitations.
§55-7D-14. Per diem and expenses of panel.
Each member of the medical review panel shall be reimbursed
for his or her actual and necessary expenses and shall be paid at
a rate of fifty dollars per diem for work performed as a member
of the panel exclusive of time involved if called as a witness to
testify in court. Per diem and expenses of the panel shall be
borne by the parties in such proportions as may be determined by
the chairman in his discretion.
The chief justice of the supreme court of appeals of West
Virginia shall promulgate all necessary rules to carry out the provisions of this chapter.
§55-7D-16. Arbitration of medical malpractice claims.
(a) Persons desiring to enter into an agreement to arbitrate
medical malpractice claims which have arisen or may arise may
submit matters to arbitration.
(1) An agreement to submit matters to arbitration shall be
binding upon the parties, within a period of at least sixty days
after the termination of health care, if the terms of the
agreement allow the patient or claimant, or his or her guardian,
committee or personal representative to: (A) Withdraw from the
agreement; and (B) decline to submit any matter to arbitration
then or thereafter in controversy.
(2) An agreement to submit matters shall be binding upon the
parties, within a period of at least sixty days after the
appointment and qualification of the guardian, committee or
personal representative, if: (A) The patient or claimant is under
disability by reason of age and is at the time of termination of
health care without a guardian who could take action for him or
her; (B) the patient or claimant is insane and without a
committee who could take action for him or her; (C) if termination of health care is due to death of the patient or
claimant; or (D) if death of the patient or claimant occurs
within sixty days after termination of health care.
(b) Proof of agreement to arbitrate and submission of a
medical malpractice claim pursuant thereto shall be in accordance
with this code, and a medical malpractice panel appointed under
this article may be designated to arbitrate the matter, either by
the arbitration agreement or by the parties to the agreement.
(c) An insurer of a health care provider shall be bound by
the award of an arbitration panel or arbitrators acting pursuant
to a good faith submission hereunder to the extent to which it
would have been obligated by a judgment entered in an action at
law with respect to the matter submitted: Provided, That the
insurer has agreed prior to the submission to be bound by the
award of the arbitration panel or arbitrators.
§55-7D-17. Effective date of article.
This article shall be effective and apply to all actions as
set forth herein, which causes arise on or after the first day of
July, one thousand nine hundred ninety-five.
NOTE: The purpose of this bill is to create medical
malpractice review panels and also provide for arbitration of
such claims in the state of West Virginia.
This article is new; therefore, strike-throughs and
underscoring have been omitted.