H. B. 2489
(By Delegate Pulliam)
[Introduced March 11, 1997; referred to the
Committee on the Judiciary.]
A BILL to amend article seven, chapter fifty-five of the code of
West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto three new sections, designated
sections nineteen, twenty and twenty-one; to amend and
reenact sections four and eight, article seven-b of said
chapter; and to further amend said article by adding thereto
a new section, designated section four-b, all relating to
the tort reform act of 1997; establishing periodic payment
schedules for personal injury awards; introduction of
collateral source evidence; limitation of attorneys' fees in
certain civil actions; shortening the statute of limitations
on the commencement of health care injuries lawsuits;
requiring affadavits of medical merit for filing of medical
professional liability actions; and reducing allowable compensation for noneconomic losses.
Be it enacted by the Legislature of West Virginia:
That article seven, chapter fifty-five of the code of West
Virginia, one thousand nine hundred thirty-one, as amended, be
amended by adding thereto three new sections, designated sections
nineteen, twenty and twenty-one; that sections four and eight,
article seven-b of said chapter be amended and reenacted; and
that said article be further amended by adding thereto a new
section, designated section four-b, all to read as follows:
ARTICLE 7. ACTIONS FOR INJURIES.
§55-7-19. Periodic payments of awards for personal injury.
(a) When a judgment is recovered in excess of one hundred
thousand dollars from a defendant in an action for personal
injuries, the court in which the 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 the plaintiff's expenses
directly related to the litigation as well as attorney's fees;
and
(2) The remainder of the award shall be paid to the plaintiff
in periodic payment as specified by the court.
(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. The 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 a modification: Provided, That money
damages awarded for loss of future earnings may not be reduced or
payments terminated by reason of death of the judgment creditor,
but shall be paid to persons to whom the judgment creditor owed
a duty of support, as provided by law, immediately prior to his
or her death. In such cases, the court may, upon petition of any
party in interest, modify the judgment to award and apportion the
unpaid future damages in accordance with this section.
(c) In the event that the court finds that the judgment debtor
has exhibited a continuing pattern of failure to make the
payments, as specified in subsection (b), 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
periodic payments, including court costs and attorney's fees.
(d) For purposes of this section, "periodic payments" means
the payment of money or delivery of other property to the
judgment creditor at regular intervals.
§55-7-20. Collateral source evidence.
(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 federal Social Security Act (42
U.S.C.A. §301 et seq.), any federal or state workers compensation
laws, any disability, health, sickness, life, income-disability
or accident insurance that provides health benefits or
income-disability coverage and any other contract or agreement to
provide, pay for or reimburse 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 these collateral sources.
If the defendant elects to introduce this evidence, the plaintiff
may introduce evidence of any amount which the plaintiff has paid
or contributed to secure the plaintiff's right to any benefits;
evidence that recovery from the defendant is subject to a lien;
evidence that a provider of collateral benefits has a statutory
right of recovery against the plaintiff as reimbursement for
benefits; or evidence that the provider of 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 admissable
for the purpose of considering the damages claimed by the
plaintiff and shall be accorded the weight which the trier of
fact may choose to give it.
(c) Unless otherwise expressly permitted to do so by statute,
no provider of collateral benefits, as described in subsection
(a) of this section, may recover any amount against the plaintiff
as reimbursement for benefits nor shall the provider be
subrogated to the rights of the plaintiff.
§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 the 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 fifty
thousand dollars recovered;
(3) Twenty-five percent of the next five hundred thousand
dollars recovered;
(4) Fifteen percent of any amount exceeding 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 an adult, an infant or a person adjudged to be incompetent.
(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 this 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 years 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 commenced more 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 comes first.
(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.
§55-7B-4b. Filing requirements for medical professional
liability actions; affadavits of merit and attached reports.
When filing a medical professional liability action against a
health care provider, the following shall be attached to the
complaint:
(a) An affadavit or affadavits by a licensed health care
professional, or professionals, practicing in the same or similar
field of medicine as each defendant health care provider stating
that the health care professional has prepared a written report
which reflects his or her belief that there is a reasonable and
meritorious cause of action for filing the action; and
(b) A copy of the report or reports by the licensed health
care professional or professionals; or
(c) An affadavit by a licensed health care professional or
professionals stating that there exists a meritorious cause of
action but expert testimony is not necessary to establish the
prima facie case against the health care provider and no expert
will testify at the trial.
In the event the affadavit states that no expert is necessary, the plaintiff will be precluded from presenting expert testimony
on the question of liability at the trial.
§55-7B-8. Limit on liability for noneconomic loss.
In any medical professional liability action brought against
a health care provider, the maximum amount recoverable as damages
for noneconomic loss shall not exceed one million dollars two
hundred fifty thousand dollars and the jury may be so instructed.
NOTE: This bill establishes several tort reform measures,
including: Establishing periodic payment schedules for personal
injury awards; establishing procedures for the introduction of
collateral source evidence; providing for the limitation of
attorneys' fees in certain civil actions; shortening the statute
of limitations on the commencement of health care injuries
lawsuits; requiring affadavits of medical merit when filing
medical professional liability actions; and reducing allowable
compensation for noneconomic losses from one million dollars to
two hundred fifty thousand dollars.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
§§55-7-19,20,21 and §55-7B-4b are new; therefore,
strike-throughs and underscoring have been omitted.