H. B. 603


(By Mr. Speaker, Mr. Kiss, and Delegate Trump)

[By Request of the Executive]

[Introduced October 21, 2001; referred to the

Committee on the Judiciary.]




A BILL to amend and reenact section six, article seven-b, chapter fifty-five of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to redesignate said section six as section six-a; and further amend said article by adding thereto a new section, designated section six, all relating generally to submission of a notice of claim to health-care professionals prior to the commencement of medical professional liability civil actions; requiring screening certificates of merit from a qualified medical expert; describing standards for screening certificates of merit; providing for exceptions to requirement of screening certificates of merit; providing for premining optional mediation and process; tolling of statute of limitations; requiring filing of screening certificates of merit with complaint; providing for pretrial mandatory mediation and process; and permitting judicial imposition of mediator's costs as litigation expenses in certain instances.

Be it enacted by the Legislature of West Virginia:
That section six, article seven-b, chapter fifty-five of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted, and redesignated as section six-a; and that said article be further amended by adding thereto a new section, designated section six-a, all to read as follows:
ARTICLE 7B. MEDICAL PROFESSIONAL LIABILITY.
§55-7B-6. Premining procedures generally; notice of claim; requirement of screening certificate of merit and exceptions; tolling of statute of limitations; optional mediation and process.

(a) No person is permitted to file a medical professional liability action against any health-care provider in any court earlier than thirty days following service of a prelitigation notice of claim on the health-care provider by U.S. Postal Service, certified, return receipt requested. The statute of limitations applicable to injury claims and the limitation of action applicable to wrongful death claims are tolled upon the sending of the notice of claim as to all parties and potential parties. The notice of claim shall generally set forth the facts which the claimant alleges to constitute a deviation from the standard of care and a proximate cause of injury or death and shall attach a screening certificate of merit signed by a person who qualifies as an expert witness as provided by the West Virginia Rules of Evidence.
(b) The screening certificate of merit shall be notarized and shall include a recitation of the expert's qualifications and an acknowledgment that the expert (1) is familiar with the applicable standard of care; (2) has reviewed the facts of the case, including the medical record or other materials necessary to form opinions regarding the applicable standard of care, its breach and proximate causation; and (3) has concluded on the basis of such review that there exists a reasonable basis to conclude that the health-care provider named in the notice of claim breached the applicable standard of care causing injury or death. A separate screening certificate of merit shall be submitted for each health-care provider. The person signing the screening certificate of merit shall have no financial interest in the outcome, but this prohibition shall not exclude any person from being an expert witness.
(c) The provisions of subsection (b) do not apply where (1) the attorney for the claimant has insufficient time before the expiration of the applicable statute of limitations to obtain the screening certificate of merit. In such instances, the attorney shall file with the notice of claim an affidavit which describes the circumstances that prevented compliance with this subsection: Provided, That in all such cases, the certificate shall be filed within ninety days following the service of the notice of claim; or (2) if a request has been made by the claimant or the claimant's representative for medical records in the possession of the named health-care provider and these records have not been produced, the claimant must file with the notice of claim an affidavit which describes the request made and the records not produced. Upon filing of the notice of claim and affidavit, the claimant is not required to serve the screening certificate of merit required by this section until ninety days after such records have been produced. If additional time is extended to the claimant as herein provided, the response deadline for the health-care provider shall be extended to thirty days following receipt of the required certificate.
(d) If the claimant asserts that, under the alleged facts of the claim, expert testimony is not required, no screening certificate of merit is necessary. In such instance, the notice of claim shall be accompanied by an affidavit that affirms that the claim is asserted exclusively on a basis that does not require supportive expert testimony.
(e) Within thirty days after receipt of the notice of claim and screening certificate of merit, where required, the health-care provider has the option to request mediation before a qualified mediator. To exercise this prelitigation mediation option, any health-care provider named in the notice shall prepare a request for mediation and response to the notice of claim and serve them upon the claimant or, if represented, upon the claimant's attorney. If there are multiple health-care providers named in the notice of claim, there may only be one mediation for all the health-care providers who request it pursuant to this provision.
(f) The parties shall promptly agree upon a mediator, bearing the costs and expenses equally: Provided, That in the event that a mediator cannot be agreed upon, the following procedures apply: The West Virginia state bar shall maintain a panel of duly qualified mediators who have experience in the handling of medical malpractice claims. The state bar shall provide a list of three such mediators, and from such list, the claimant shall strike one, the health-care provider or providers shall strike one, and the remaining mediator shall conduct the mediation.
(g) Within ten days after service of the request for prelitigation mediation, the health-care provider shall make available for inspection and copying the complete and unaltered copies of the claimant's medical records. The claimant has the right to depose such health-care provider before the mediation convenes or take his testimony during the mediation. In the event that mediation does not conclusively resolve the claim, the claimant may commence a medical professional liability action. The plaintiff shall file the screening certificate of merit provided in subsection (a) of this section with the complaint.
(h) When a medical professional liability action is commenced in compliance with the requirements of this section, and the court determines prior to trial, or at a hearing conducted after trial, that either party is presenting or relying upon a frivolous or dilatory claim or defense, for which there is no reasonable basis in fact or at law, the court may assess costs as provided in subsection (b) of section six-a of this article.
(i) If the health-care provider elects to waive his or her right to convene a mediation, the provider shall serve a notice of waiver of prelitigation mediation waiver upon the claimant or, if the claimant is represented by an attorney, upon claimant's attorney. If the health-care provider fails to respond to the notice of claim within the time period permitted, then it is presumed that he or she has waived his or her right to prelitigation mediation. When a health-care provider has waived the right to prelitigation mediation, the claimant may commence a medical professional liability action against that health-care provider. The plaintiff shall also file the screening certificate of merit provided in subsection (a) of this section with the complaint.
(j) Notwithstanding any provision of this code to the contrary the statute of limitations is extended to thirty days after the date of transmission of notice of the waiver of prelitigation mediation, expiration of the thirty days following service of the notice of claim, or the conclusion of the pre-litigation mediation, whichever occurs last.
(k) The general purpose of the mediation is the speedy resolution of meritorious claims by settlement, but also includes the opportunity for the health-care provider to challenge the factual and legal basis for the claim: Provided, That the prelitigation mediation provided in this section must be concluded within sixty days after the date of the selection of the mediator.
(l) The provisions of this section are not applicable to a plaintiff not represented by an attorney: Provided, That if a complaint is filed by a plaintiff not represented by an attorney, then the court shall convene the mandatory status conference required by subsection (a) of section six-a of this article not later than thirty days after the defendant health-care provider has filed a responsive pleading. At the status conference, the court shall enter a scheduling order addressing whether expert testimony regarding standard of care and proximate causation is required and, if required, the date by which plaintiff must disclose the name of the expert witness or witnesses.
§55-7B-6a. Pretrial procedures; mandatory mediation.
(a) In each medical professional liability action against a health-care provider, not less than nine nor more than twelve months following the filing of an answer by all defendants, a mandatory status conference shall be held at which, in addition to any matters otherwise required, the parties shall:
(1) Inform the court as to the status of the action, particularly as to the identification of contested facts and issues, the progress of discovery and the period of time for, and nature of, anticipated discovery; and
(2) On behalf of the plaintiff, certify to the court that either an expert witness has or will be retained to testify on behalf of the plaintiff as to the applicable standard of care or that under the alleged facts of the action, no expert witness will be required. If the court determines that expert testimony will be required, the court shall provide a reasonable period of time for obtaining an expert witness and the action shall not be scheduled for trial, unless the defendant agrees otherwise, until such period has concluded. It shall be the duty of the defendant to schedule such conference with the court upon proper notice to the plaintiff the expert who signed the screening certificate of merit is the sole expert to be offered by the plaintiff or, if not, establish a date for disclosure of all additional experts to be offered by plaintiff on the issues of standard of care, breach, proximate causation and damages. The court shall also establish a date for disclosure of expert witnesses to be offered by defendants on the same issues.
(3) If plaintiff intends to proceed without an expert, the court shall issue an order that resolves whether an expert is necessary. If the court determines that expert testimony will be required, the court shall provide a reasonable period of time for obtaining an expert witness and the action shall not be scheduled for trial unless the defendant agrees otherwise, until such period has concluded. The defendant shall schedule the conference with the court upon proper notice to the plaintiff.
(b) In the event that the court determines prior to trial, or at a hearing conducted after trial, that either party is presenting or relying upon a frivolous or dilatory claim or defense, for which there is no reasonable basis in fact or at law, the court may direct in any final judgment the payment to the prevailing party of reasonable litigation expenses, including the costs of all mediation conducted under the provisions of this article, excluding attorney fees and expenses, deposition and subpoena expenses, travel expenses incurred by the party and such other expenses necessary to the maintenance of the action, excluding attorney fees and expenses.
(c) At any time after the mandatory status conference established by this section, and upon motion by either party, or by the court sua sponte, the dispute between the parties shall be submitted to mediation.
(d) The mediation shall be conducted before a qualified mediator selected in accordance with the procedures provided by Rule 25 of the West Virginia Trial Court Rules. Unless otherwise agreed, or ordered by the court consistent with the provisions of this section, the cost of the mediation shall be borne equally by all parties participation in the mediation. All parties shall negotiate in good faith in an attempt to resolve the dispute.
(e) At the conclusion of the mediation, the mediator shall report promptly to the court the status and outcome of the mediation pursuant to Rule 25 of the West Virginia Trial Court Rules.

NOTE: The purpose of this bill is to require a person with a medical professional liability claim to provide a potential defendant health-care provider with the opportunity to engage in optional mediation prior to the commencement of such an action. The claimant must first submit a notice of claim to the health-care professional along with a screening certificate of merit from a medical expert supporting the allegations in the notice of claim. In the event this optional mediation is unsuccessful, the claimant may commence a civil action, attaching the screening certificate of merit to the complaint. The parties to the lawsuit are required to engage in mediation after the pretrial status conference. The court is allowed to award the costs of the mediation to the prevailing party in the event the non-prevailing party is pursuing a frivolous claim or relying upon a dilatory defense without reasonable basis in law or fact.

 §55-7B-6 is new; therefore, strike-throughs and underscoring have been omitted.
Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added to present law.