H. B. 4151


(By Delegates Martin, Amores and Michael)
[Introduced January 25, 2000; referred to the
Committee on Government Organization then the Judiciary.]




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 affirmative defenses to actions for medical malpractice; providing limited protection to medical practitioners declining to order diagnostic procedures of marginal utility and ordering conservative therapy; legislative findings; statutory construction; limitations of section; applicability of section; specific acts and omissions protected; exclusions from protection; authorizing the director of the division of health to propose rules; and requiring the director of the division of health and the deans of the medical schools to meet and confer for the purpose of developing research proposals.

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. Affirmative defenses to actions for malpractice.

(a) Legislative findings. -- The Legislature finds that clinical decisions with respect to the diagnosis and treatment of illness or infirmity are best made according to the informed clinical judgment of the treating medical practitioner in consultation with the patient, other persons legally empowered to consent to medical treatment on behalf of the patient and, when appropriate, other family members or consulting medical practitioners. The Legislature further finds that medical practitioners called upon to diagnose a patient's condition or prescribe therapies may practice defensive medicine, ordering all possible diagnostic procedures, including diagnostic procedures of marginal utility, and prescribing a more aggressive therapy in lieu of a more conservative therapy even when there is little likelihood that the more aggressive therapy will yield a better result; that the practice of defensive medicine often operates to the detriment of the public interest, resulting in a misdirection of resources to high-cost procedures of marginal utility and away from treatment options more highly beneficial to the public interest, and in some cases increasing or prolonging suffering for the patient; and that, in some cases, ordering large numbers of tests or procedures unlikely to result in a positive diagnosis of disease may contribute to higher error rates in evaluating test results. Therefore, the Legislature finds that it is in the public interest to minimize the practice of defensive medicine by offering limited protection from liability for malpractice to those physicians who, in an exercise of professional clinical judgment, order medically necessary procedures and decline to order procedures of marginal utility, and consider conservative treatment options in addition to more aggressive and invasive options which may not yield a better result.
(b) Legislative intent. -- It is not the intention of the Legislature in enacting this section to imply that public policy requires that the actions specifically protected in this section are appropriate or medically indicated for all patients, or to imply that the procedures specifically excluded from the protections of this section are inappropriate or medically excludable for all patients. It is not the intention of the Legislature in enacting this section to imply that the procedures, diagnostic tests or treatment choices, omission of which are protected, are not appropriate or medically necessary for some patients. That an act or omission is protected only with respect to some patient groups does not imply that public policy either favors or disfavors that act or omission for other patient groups.
(c) Statutory construction. -- This section may not be construed to effect any change in the law of this state with respect to the responsibility of health care providers to obtain informed consent to medical treatment, or with respect to persons from whom informed consent may lawfully be obtained. This section may not be construed to effect any change in the applicable standard of care for medical professional liability except to the limited extent that specific acts or omissions are protected in this section, and may not be construed to create new actions for malpractice or new theories upon which an action for malpractice may be based. This section may not be construed to effect any change in the applicable standard of care for medical professional liability for a health care provider who renders emergency care, who is consulted for an acute illness or other limited purpose or whose scope of practice is limited to a specialty, with respect to conditions outside the scope of the emergency, the limited purpose, or the scope of the provider's practice. This section may not be construed to provide a basis for denial of payment by third-party payors for any therapeutic or diagnostic procedure. When reference is made in this section to consultation with family members of a patient, the reference may not be construed as imposing an affirmative duty on health care providers to consult with all persons, other than the patient or other person from whom consent must lawfully be obtained, who may have an interest in the welfare of a patient.
(d) Limitations. -- Notwithstanding any other provision of this section to the contrary, liability of a health care provider for failure to obtain informed consent to medical treatment is specifically excluded from the protections of this section. In order to claim any protection under this section, the health care provider claiming the protection shall demonstrate that the action, omission or treatment choice claimed to be protected occurred through the conscious exercise of professional judgment, and did not occur due to the unavailability, absence or inattention of the health care provider owing a duty of care to the patient and claiming the protection. A health care provider claiming applicable protection under this section with respect to a patient who is unconscious or otherwise incapable of communication at the time the treatment or diagnostic choice is made, or with respect to a patient under a legal disability preventing that patient from giving informed consent to medical treatment at the time the treatment or diagnostic choice is made, shall demonstrate that the provider consulted with available family members before making the diagnostic or treatment choice.
(e) Applicability of section. -- The protections of this section may be claimed only by a duly licensed physician, osteopathic physician, nurse-midwife or advanced practice nurse acting within the scope of that provider's practice; or by a health care facility with respect to the acts or omissions of a physician, osteopathic physician, nurse-midwife or advanced practice nurse acting within the scope of the individual provider's practice.
(f) Protections with respect to certain patients. -- For a patient who is not an inpatient in a hospital; has not been diagnosed with a life-threatening condition or immunodeficiency disease; is not afflicted with a mental disease or impairment affecting the patient's ability to communicate reliable information at the time a diagnostic or treatment choice is made; and who is conscious, over the age of seven years, and capable of communication at the time a diagnostic or treatment choice is made; no cause of action against a health care provider owing a duty of care to a patient shall lie for the following acts or omissions:
(1) Failure to recommend or order an X ray, other than a chest X ray; an X ray required by the applicable standard of care for a patient scheduled for outpatient surgery; or an X ray for injuries or symptoms originating with recent traumatic injury, or symptoms reported by the patient or disclosed by routine physical examination or laboratory or other medical reports received by the practitioner suggesting a diagnosis discloseable by X ray of a life-threatening illness or condition;
(2) Failure to diagnose any condition not ascertainable by routine physical examination, including, when appropriate, pelvic or rectal examination, for which the patient is aware of no symptoms, or for which a diagnosis is not reasonably suggested by laboratory or other medical reports received by the physician, other than a diagnosis of hypertensive illness, diabetes, breast cancer, prostate cancer, cervical cancer, colon or rectal cancer, sexually transmitted diseases, tuberculosis, a disease for which a specific patient is at high risk based on family history or known risk factors, or, in the case of an ophthalmologist, glaucoma.
(3) Failure to recommend or order diagnostic sonography as an adjunct to mammography for the diagnosis of possible breast cancer;
(4) When a patient's condition suggests more than one possible diagnosis, but the possible diagnoses are likely to respond to the same therapeutic approach, ordering a trial therapy in the absence of tests or procedures necessary for a specific diagnosis;
(5) When a patient's condition suggests more than one possible diagnosis, one less serious and likely to respond to conservative therapy, and the other more serious and not likely to respond to conservative therapy, but, based on the patient's condition, history and statistical probabilities, the less serious diagnosis is the more probable, ordering a trial therapy for a specific, limited period to evaluate the effectiveness of the conservative therapy, deferring for that time diagnostic tests or procedures to eliminate the more serious condition as a diagnosis; and
(6) When a patient's condition suggests a specific diagnosis and diagnostic testing for that condition is subject to a high incidence of false-negative results, so that the applicable standard of care would generally call for initiating therapy if diagnostic testing failed to confirm the diagnosis, and when the specific therapy is not contraindicated by the patient's history or general medical condition, initiating the therapy in the absence of diagnostic testing to confirm the diagnosis.
(g) Protections with respect to patients over the age of fifty-five. -- For a patient over the age of fifty-five years, no cause of action against a health care provider owing a duty of care to a patient shall lie for the following acts or omissions:
(1) Failure to recommend surgical intervention for a diagnosed illness or condition, when surgery is to a reasonable degree of medical probability unlikely to effect a cure, to mitigate suffering, to relieve or defer the onset of pain, or to increase the patient's ability to function in activities of daily living;
(2) Failure to recommend a more invasive or more aggressive surgical intervention rather than a less invasive or less aggressive surgical intervention for a diagnosed illness or condition, when the more invasive or more aggressive surgery is to a reasonable degree of medical probability unlikely to effect a cure and not more likely than the less invasive or aggressive surgery to mitigate suffering, to relieve or defer the onset of pain or to increase the patient's ability to function in activities of daily living;
(3) When a patient's condition, based on symptoms reported by a patient and observed by the medical practitioner, suggests a probable diagnosis of rheumatoid arthritis, ordering conservative treatment for symptoms, which unless otherwise contraindicated may include prescription of salycylates or nonsteroidal anti-inflammatory drugs, and deferring X ray or laboratory tests which may confirm a definite diagnosis and deferring more aggressive treatments for a period of time consistent with good medical practice in order to evaluate the effectiveness of the conservative treatment;
(4) Failure to recommend or perform invasive diagnostic procedures or recommend or perform surgical treatment when a patient's condition, based on information reported by the patient, physical examination, and noninvasive diagnostic procedures including electrocardiogram suggests a diagnosis of a generalized cardiovascular disorder, a disease of the heart or pericardium, or myocardial ischemic disorder; or for a patient who survives a first incident of acute myocardial infarction; when in the best clinical judgment of a physician specializing in cardiovascular diseases the patient is a candidate for conservative management of the cardiovascular disorder, to include management of underlying or contributing conditions such as hypertension or diabetes and appropriate lifestyle changes. The protections of this subdivision do not extend to a medical practitioner failing to recommend or order hospitalization for a patient with symptoms consistent with acute myocardial infarction; and
(5) Failure to recommend surgical or other therapies which are significantly mutilating or significantly decrease the patient's ability to function in activities of daily living, even if the mutilating therapy, or therapy adversely affecting function, may prolong life. A therapy is significantly mutilating if the patient considers the therapy significantly mutilating; if it deprives a patient of a limb or essential body part; or if a reasonable man or woman who is not a medical practitioner would consider the therapy significantly disfiguring.
(h) Protections with respect to terminally ill patients. -- For patients over the age of eighteen years diagnosed with a terminal illness, no cause of action against a health care provider owing a duty of care to a patient shall lie for the following acts or omissions:
(1) Failure to order or recommend diagnostic procedures for the purpose of monitoring the course of the disease process, when the diagnostic testing would be to a reasonable degree of medical probability unlikely to affect treatment choices;
(2) Failure to recommend surgical intervention for the terminal illness or condition, when the surgery would be to a reasonable degree of medical probability unlikely to mitigate suffering, to relieve or defer the onset of pain, or to increase the patient's ability to function in activities of daily living;
(3) Failure to recommend a more invasive or more aggressive surgical intervention rather than a less invasive or less aggressive surgical intervention for the terminal illness or condition, when the more invasive or more aggressive surgery is not to a reasonable degree of medical probability more likely than the less invasive or aggressive surgery to mitigate suffering, to relieve or defer the onset of pain or to increase the patient's ability to function in activities of daily living;
(4) Failure to recommend surgery for conditions secondary or unrelated to the terminal illness or condition, when the surgery is to a reasonable degree of medical probability unlikely to mitigate suffering, to relieve or defer the onset of pain, or to increase the patient's ability to function in activities of daily living;
(5) Failure to treat conditions secondary or unrelated to the terminal illness or condition, when the treatment is to a reasonable degree of medical probability likely to cause significant suffering or the secondary or unrelated condition is not contributing significantly to the suffering of the patient;
(6) For cancers treatable by chemotherapy or radiation, failure to recommend maximum or aggressive chemotherapy or radiation, as opposed to palliative chemotherapy or radiation, when the specific diagnosis is to a reasonable degree of medical certainty not a condition for which a complete cure or remission of symptoms is likely to occur;
(7) Failure to prolong life by artificial means, including failure to place the patient on a ventilator; and
(8) Failure to resuscitate a patient whose terminal illness or condition has caused and, in the event the patient regains consciousness, will continue to cause significant suffering.
(i) Protections with respect to pregnancy and delivery. -- For patients who are pregnant and the developing fetus or child, no cause of action against a health care provider owing a duty of care to a patient, fetus or child shall lie for the following acts or omissions:
(1) Failure to order or recommend diagnostic sonography in the first trimester of pregnancy, except in the case of medical indications of ectopic or interstitial pregnancy, or indications that a specific patient is at high risk, based on medical history and known risk factors, for ectopic or interstitial pregnancy;
(2) Failure to order or recommend diagnostic sonography in the second trimester of pregnancy, except in the case of medical indications of interstitial pregnancy, indications of premature labor, indications that continuing the pregnancy may endanger the life or health of the mother, or indications that the pregnancy is not progressing normally; or in the case of a fetus at high risk based on family history or known risk factors for developing with a congenital abnormality discloseable by sonogram;
(3) Failure to order or recommend electronic fetal monitoring for a patient whose onset of labor is at term, whose cervix is fewer than five centimeters dilated and who has been in labor less than twelve hours, when the fetus and the progress of labor is monitored by other than electronic means consistent with good medical practice; and
(4) Failure to recommend or perform a caesarean section on a patient whose onset of labor is at term, except in the case of medical indications of fetal distress including, but not limited to, abnormal fetal heart rate or the presence of meconium; indications of preeclampsia, eclampsia, abruptio placenta, placenta previa, or prolapsed cord; abnormal vaginal bleeding in the first stages of labor; the passage of twenty-four hours subsequent to the rupture of membranes; abnormal fetal presentation or position; or pregnancy complicated by herpes genitalis, or disease of the mother or disease or diagnosed congenital abnormalities of the fetus which contraindicate prolonging labor.
(j) Procedures excluded from protection. -- Notwithstanding any other provision of this section to the contrary, except in the case of conditions outside the scope of emergency care, a limited purpose contact, or the scope of practice, failure to recommend, order or perform the following procedures for patients for whom the applicable standard of care suggests that the procedure be performed or repeated is specifically excluded from the protection of this section:
(1) Mammography for the diagnosis of breast cancer;
(2) Papanicolaou smear (Pap test) for the diagnosis of cervical cancer and sexually transmitted diseases;
(3) Examination with a tonometer for patients at risk for glaucoma;
(4) Complete blood count (CBC);
(5) Urine screening and fasting blood sugar for the diagnosis of diabetes;
(6) Serum cholesterol testing for persons at risk for heart disease;
(7) Tuberculin testing;
(8) Cervical gram stain and, if negative, culture of exudate specimen for the diagnosis of gonorrhea;
(9) Darkfield examinations of fluid from lesions for the diagnosis of syphilis;
(10) Serologic screening tests for the diagnosis of syphilis and, if positive, CSF examination;
(11) Specific or treponemal serological test for the diagnosis of syphilis if a false-positive result on a screening test is suspected;
(12) Microscopic examination of secretions for the diagnosis of trichomoniasis, (unless diagnosed by Papanicolaou smear);
(13) Electrocardiogram for undiagnosed acute chest pain;
(14) Screening for occult blood in stool and, if positive, sigmoidoscopy;
(15) Any diagnostic X ray or sonogram required by the applicable standard of care prior to scheduling hospital admission, outpatient surgery, higher cost diagnostic procedures including, but not limited to, computerized tomography or magnetic resonance imaging, or invasive diagnostic procedures, when the higher cost or more invasive procedure will to a reasonable degree of medical probability be avoided if results of X ray or sonogram are favorable;
(16) Any other procedure specifically required by law; and
(17) Routine physical examination, including, when appropriate, pelvic and rectal examination.
(k) If the director of the division of health finds that additional inclusions or exclusions from protection are necessary to the public health or welfare, the director may, by legislative rule proposed pursuant to the provisions of article three, chapter twenty-nine-a of this code, provide for additional acts or omissions to be specifically protected, and additional acts or procedures to be specifically excluded from protection. In addition to the notice and filing requirements of sections five, six and seven, article three, chapter twenty-nine-a of this code, copies of the proposed rule, notices, and findings and determinations shall be mailed by regular United States mail, postage prepaid, to all medical practitioner members of the West Virginia board of medicine created in section five, article three, chapter thirty of this code; all medical practitioner members of the board of osteopathy created in section three, article fourteen of this code; and all medical practitioner members of the state advisory board created in section one, article four, chapter nine of this code. In the case of acts and procedures to be excluded from protection, emergency rules are specifically authorized.
(l) On or before the first day of September, two thousand, the director of the division of health and the deans of the medical schools of West Virginia University and Marshall University, and any other persons as the director and deans determine may be of assistance, shall meet and confer for the purpose of developing proposals for measuring the impact of this legislation on treatment and diagnostic choices made by medical practitioners and on the health and welfare of citizens of the state; and for the further purpose of developing proposals for research, including grant proposals, for specific research or studies designed to measure that impact.


NOTE: The purpose of this bill is to minimize the practice of defensive medicine by health care providers by providing limited protection against actions for malpractice to health care providers declining to order diagnostic procedures of marginal utility and considering conservative treatment options.

This section is new; therefore, strike-throughs and underscoring have been omitted.