H. B. 617
(By Delegates Trump, Hall, Ellem, Canterbury,
Azinger, L. Smith and Smirl)
[Introduced October 26, 2001; referred to the
Committee on the Judiciary.]
A BILL to amend and reenact sections one, two, seven and eight,
article seven-b, chapter fifty-five of the code of West
Virginia, one thousand nine hundred thirty-one, as amended;
and to further amend said article by adding thereto eleven new
sections, designated sections nine-a, nine-b, nine-c, nine-d,
nine-e, nine-f, nine-g, nine-h, nine-i, nine-j and nine-k, all
relating to medical professional liability; providing for
nonbinding arbitration of certain medical professional
liability claims against a health care provider; legislative
findings and declaration of purpose; defining the term
"medical injury"; modifying the requirements for testimony of
expert witnesses on standard of care; providing for exclusiveness of arbitration procedures applicable to claims
for damages of seventy-five thousand dollars or more;
applicability of state court rules; creating the health claims
arbitration office; appointment, duties, powers and
compensation of director; lists of qualified persons willing
to serve as arbitrators; designating categories and
qualifications thereof; creating the health care arbitration
fund as a special revenue fund; purpose, administration and
use of fund; providing fees for filing claims and responses to
claims; procedures for the filing of claims; appointment of
arbitrators; arbitrators immunity from suit; requirements and
procedures for filing a certificate of a qualified expert by
parties; powers of the arbitration panel and chairperson;
power of the panel chairperson to administer oaths to
witnesses and to issue subpoenas; enforcement of subpoenas;
venue; notice of hearing; procedure for arbitration of claim;
issues of law to be determined by panel chairperson and issues
of fact to be determined by panel; determination of liability;
determination, itemization and apportionment of damages;
application to correct or modify award; procedure for
confirmation of award; confirmation of award final and binding upon the parties; judicial review; procedure for judicial
review; providing a procedure for waiver of arbitration before
claim heard; waiver of arbitration after filing of certificate
of qualified expert; procedure.
Be it enacted by the Legislature of West Virginia:
That sections one, two, seven and eight, 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 that
the said article be further amended by adding thereto eleven new
sections, designated sections nine-a, nine-b, nine-c, nine-d,
nine-e, nine-f, nine-g, nine-h, nine-i, nine-j and nine-k, all to
read as follows:
ARTICLE 7B. MEDICAL PROFESSIONAL LIABILITY.
§55-7B-1. Legislative findings and declaration of purpose.
The Legislature hereby finds and declares that the citizens of
this state are entitled to the best medical care and facilities
available and that health care providers offer an essential and
basic service which requires that the public policy of this state
encourage and facilitate the provision of such service to our
citizens;
That as in every human endeavor the possibility of injury or death from negligent conduct commands that protection of the public
served by health care providers be recognized as an important state
interest;
That our system of litigation is an essential component of
this state interest in providing adequate and reasonable
compensation to those persons who suffer from injury or death as a
result of professional negligence;
That liability insurance is a key part of our system of
litigation, affording compensation to the injured while fulfilling
the need and fairness of spreading the cost of the risks of injury;
That a further important component of these protections is the
capacity and willingness of health care providers to monitor and
effectively control their professional competency, so as to protect
the public and insure to the extent possible the highest quality of
care;
That it is the duty and responsibility of the Legislature to
balance the rights of our individual citizens to adequate and
reasonable compensation with the broad public interest in the
provision of services by qualified health care providers who can
themselves obtain the protection of reasonably priced and extensive
liability coverage;
That in recent years, the cost of insurance coverage has risen
dramatically while the nature and extent of coverage has
diminished, leaving the health care providers and the injured
without the full benefit of professional liability insurance
coverage;
That many of the factors and reasons contributing to the
increased cost and diminished availability of professional
liability insurance arise from the historic inability of this state
to effectively and fairly regulate the insurance industry so as to
guarantee our citizens that rates are appropriate, that purchasers
of insurance coverage are not treated arbitrarily, and that rates
reflect the competency and experience of the insured health care
providers.
That in the year two thousand one, the cost of such liability
insurance coverage has again risen dramatically, particularly so
when compared to the cost of similar insurance coverage in
neighboring states, which, together with other costs and taxation
incurred by healthcare providers in this state, has created a
competitive disadvantage in this state compared with neighboring
states. As a result of these occurrences, West Virginia is placed
at a competitive disadvantage with neighboring states in attracting and retaining quality health care providers to practice in West
Virginia.
That nonbinding arbitration of medical professional liability
claims has been utilized in other states and should be utilized in
this state as an effective procedure to reduce the cost of
resolving such claims;
Therefore, the purpose of this enactment is to provide for a
comprehensive resolution of the matters and factors which the
Legislature finds must be addressed to accomplish the goals set
forth above. In so doing, the Legislature has determined that
reforms in the common law and statutory rights of our citizens to
compensation for injury and death, in the regulation of ratemaking
and other practices by the liability insurance industry, and in the
authority of medical licensing boards to effectively regulate and
discipline the health care providers under such board must be
enacted together as necessary and mutual ingredients of the
appropriate legislative response.
§55-7B-2. Definitions.
(a) "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 care, treatment or confinement.
(b) "Health care facility" means any clinic, hospital, nursing
home, or extended care facility in and licensed by the state of
West Virginia and any state operated institution of clinic
providing health care.
(c) "Health care provider" means a person, partnership,
corporation, facility or institution licensed by, or certified in,
this state or another state, to provide health care or professional
health care services, including but not limited to a physician,
osteopathic physician, hospital, dentist, registered or licensed
practical nurse, optometrist, podiatrist, chiropractor, physical
therapist, or psychologist, or an officer, employee or agent
thereof acting in the course and scope of such officer's,
employee's or agent's employment.
(d) "Medical injury" means injury or death arising or
resulting from the rendering or failure to render health care.
(d) (e) "Medical professional liability" means any liability
for damages resulting from the death or injury of a person for any
tort or breach of contract based on health care services rendered,
or which should have been rendered, by a health care provider or
health care facility to a patient.
(e) (f) "Patient" means a natural person who receives or
should have received health care from a licensed health care
provider under a contract, expressed or implied.
(f) (g) "Representative" means the spouse, parent, guardian,
trustee, attorney or other legal agent of another.
(g) (h) "Noneconomic loss" means losses including but not
limited to pain, suffering, mental anguish and grief.
§55-7B-7. Testimony of expert witness on standard of care.
(a) The applicable standard of care and a defendant's failure
to meet said the standard, if at issue, shall be established in
medical professional liability cases by the plaintiff by testimony
of one or more knowledgeable, competent expert witnesses if
required by the court. Such The expert testimony may only be
admitted in evidence if the foundation, therefor, is first laid
establishing that: (a) (1) The opinion is actually held by the
expert witness; (b) (2) the opinion can be testified to with
reasonable medical probability; (c) (3) such the expert witness
possesses professional knowledge and expertise coupled with
knowledge of the applicable standard of care to which his or her
expert opinion testimony is addressed; (d) (4) such the expert
maintains a current license to practice medicine or medicine and surgery, osteopathic medicine or osteopathic medicine and surgery,
or podiatric medicine or podiatric medicine and surgery with the
state medical board or other licensing authority in one of the
states of the United States of any state; and (e) (5) such the
expert is engaged or qualified in the same or substantially similar
medical field as the defendant health care provider; and (6) the
expert devotes three fourths of his or her professional time to the
active clinical practice of medicine or surgery, whether as a
medical, osteopathic or podiatric physician or is a licensed
medical, osteopathic or podiatric physician who teaches in his or
her field in an accredited university.
(b) Nothing contained in this section may be construed to
limit a trial court's discretion in determining the competency or
lack of competency on a ground not specifically enumerated herein.
§55-7B-9a. Arbitration; exclusiveness of procedures.
All medical professional liability claims, suits, and actions,
including cross claims, counterclaims and third party claims
brought against a health care provider in which damages of
seventy-five thousand dollars or more are sought are subject to the
arbitration provisions in the following sections of this article, and such claims, suits and actions may not be brought or pursued in
any court of this state except in accordance therewith.
Except as otherwise provided in this article, the West
Virginia State Court Rules shall apply to all practice and
procedure issues in arbitration proceedings in this article.
§55-7B-9b. Health claims arbitration office.
(a) There is hereby created an executive agency known as the
health claims arbitration office. The agency shall administer,
coordinate and implement the arbitration of medical professional
liability claims pursuant to the provisions of this article.
(b) The governor shall appoint, by and with the advice and
consent of the Senate, an executive director, to be known as the
"director", who shall serve at the will and pleasure of the
governor. The director shall be a qualified administrator as
determined by the governor, shall be a member of the bar of the
supreme court of appeals for a period of five years, and shall have
three years of litigation or arbitration experience in medical
professional liability actions in this state. In addition to the
director, there shall be such other employees as the director
determines to be necessary. The director has the authority to
promulgate rules, and such other authority to perform such duties as may be required or necessary to effectuate the arbitration
provided in this article.
(c) The annual salary of the director shall be as determined
by the Legislature.
§55-7B-9c. List of qualified persons to serve as arbitrators.
(a) Except as otherwise provided in this article, the director
shall prepare a list of qualified persons willing to serve as
arbitrators of medical professional liability claims. The list
shall be divided into three categories, one containing the names of
attorneys, one containing the names of individuals who are health
care providers, and one containing the names of persons from the
general public who are neither attorneys, health care providers, or
agents or employees of an insurance company or society. The list
of health care providers shall, if practicable, include at least
one health care provider from each recognized specialty, as
requested by any party. The persons from the general public shall
be chosen at random from existing lists or current jury panel
lists, which shall be made available from the circuit clerks to the
director.
(b) An attorney is qualified to serve if the attorney has been
a member of the bar of the supreme court of appeals and has been in the practice of law in the state for three years. A health care
provider is qualified to serve if the health care provider has been
licenced to practice and has been in practice in this state for
three years. The list of health care providers shall include the
names of all physicians licenced to practice in this state and who
are residents of this state. Every physician who is licenced to
practice in this state and is a resident of this state shall be
available to serve as an arbitrator of medical professional
liability claims.
(c) The director shall by rule determine the fees that may be
charged by arbitrators for services rendered by them in proceedings
pursuant to this article.
§55-7B-9d. Health claims arbitration fund.
(a) There is hereby created a special revenue fund in the
state treasury which is designated and known as the "health claims
arbitration fund". The fund shall consist of filing fees
hereinafter provided, appropriations to the fund, gifts, grants or
contributions to the fund, and all interest earned upon investment
of the fund. The revenue shall be disbursed by the director in the
manner and for the purposes of effecting the provisions of this
article providing for arbitration and payment of arbitrator fees and expenses and shall not be treated by the auditor and treasurer
as part of the general revenue of the state except as expressly
provided in this section.
(b) The following fees shall be paid to the director at the
time of filing a medical professional liability claim or response
with the director:
(1) a fee of forty dollars for the filing of a claim,
including any third-party claim; and
(2) a fee of twenty-five dollars for a filing of a response to
a claim.
The filing fees shall be deposited by the director into the
health claims arbitration fund.
(c) Unspent portions of the fund that exceed one hundred
thousand dollars at the end of a fiscal year may be appropriated to
the general revenue fund.
§55-7B-9e. Filing of claim; tolling of applicable statute of
limitations; appointment of arbitrators;
arbitrators' immunity from suit.
(a) Filing of claim and response:
(1) A person having a claim against a health care provider for
damage due to a medical injury shall file his claim with the director, and, if the claim is against a physician, the director
shall forward copies of the claim to the state licensing board by
which the physician is licensed. The director shall cause a copy
of the claim to be served upon the health care provider in
accordance with the West Virginia Rules of civil procedure. The
health care provider shall file a response with the director and
serve a copy on the claimant and all other health care providers
named therein within the time provided in the West Virginia Rules
of civil procedure for filing a responsive pleading to a complaint.
The claim and the response may include a statement that the matter
in controversy falls within one or more particular recognized
specialties.
(2) A third-party claim shall be filed within thirty days of
the response of the third-party claimant to the original claim
unless the parties consent to a later filing or a later filing is
allowed by the panel chairman for good cause shown.
(3) A claimant may not add a new defendant after the
arbitration panel has been selected, or ten days after the
prehearing conference has been held, whichever is later, except for
good cause shown, including, but not limited to, determining the
existence or identity of a defendant as a result of responses to discovery requests or determination of the identity or existence of
a defendant which could not have been earlier discovered after the
exercise of due diligence by the claimant.
(4) Until all costs attributable to the first filing have been
satisfied, a claimant may not file a second claim on the same or
substantially the same grounds against any of the same parties.
(b) The filing of a claim pursuant to this section tolls the
applicable statute of limitation upon the bringing of the action
until such time as the claimant is required to file a complaint as
otherwise provided in this article.
(c) Filing and service of certificate of qualified expert. --
Unless the sole issue in the claim is lack of informed consent:
(1) Except as provided in subdivision (ii) of this subsection,
a claim filed after the first day of July, two thousand two, shall
be dismissed, without prejudice, if the claimant fails to file with
the claim a certificate of a qualified expert with the director
attesting to departure from standards of care, and that the
departure from standards of care is the proximate cause of the
alleged medical injury. The claimant shall serve a copy of the
certificate on all other parties to the claim or their attorneys of
record in accordance with the West Virginia Rules of civil procedure.
(2) A claim filed after the first day of July, two thousand
two may be adjudicated in favor of the claimant on the issue of
liability, if the defendant disputes liability and fails to file a
certificate of a qualified expert attesting to compliance with
standards of care, or that the departure from standards of care is
not the proximate cause of the alleged injury, within one hundred
twenty days from the date the claimant served the certificate of a
qualified expert set forth in subdivision (1) of this subsection on
the defendant. If the defendant does not dispute liability, a
certificate of a qualified expert is not required under this
subsection. The defendant shall serve a copy of the certificate on
all other parties to the claim of their attorneys of record in
accordance with the West Virginia Rules of civil procedure.
(3) The attorney representing each party or the party
proceeding pro se, shall file the appropriate certificate with a
report of the attesting expert attached. Discovery is available as
to the basis of the certificate.
(4) The attesting expert may not devote annually more than
twenty percent of the expert's professional activities to
activities that directly involve testimony in personal injury claims.
(5) An extension of the time allowed for filing a certificate
of a qualified expert under this subsection shall be granted for
good cause shown.
(6) In the case of a claim against a physician, the director
shall forward copies of the certificates filed under subdivisions
(1) and (2) of this subsection to the state licensing board of the
physician.
(7) For purposes of the certification requirements of this
subsection for any claim filed on or after the first day of July,
two thousand two:
(i) A party may not serve as a party's expert; and
(ii) The certificate may not be signed by:
1. A party;
2. An employee or partner of a party; or
3. An employee or stockholder of any professional corporation
of which the party is a stockholder.
(d) Lists of names to be given parties; updating biographical
statements. --
(1) Within twenty days after the filing of the claimant's
certificate of a qualified expert, or, in a case in which lack of informed consent is the sole issue, within twenty days after the
filing of the defendant's response, the director shall deliver to
each party the names of six persons chosen at random from the
attorney categorical list prepared by the director pursuant to
subsection (c) of section nine-c of this article, together with a
brief biographical statement as to each of these persons.
(2) No later than twenty days after receiving notice of the
scheduled hearing, the director shall deliver to each party the
names of six persons chosen at random from each of the remaining
categorical lists prepared by the director pursuant to subsection
(c), section nine-c of this article together with a brief
biographical statement as to each of these persons. If the claim
or the response states that the matter falls within one or more
recognized specialties, the director, if practicable, shall include
persons in the specialty on the list from the health care provider
category. Before delivering each list, the director shall inquire
of the persons selected to assure the director that they do not
have a personal or economic relationship with any of the parties or
their counsel, or any cases in which they are a party before the
arbitration office, that can form the basis of any partiality on
their part. If, in the judgment of the director, a person selected has such a relationship with a party, his name shall be replaced by
another chosen at random.
(3) The biographical statements sent to the parties under this
subsection shall have been updated within two years.
(e) Objection to arbitrator on list; striking names. --
(1) Within fifteen days after delivery of the list, a party
may object in writing stating the reasons therefor to the inclusion
of any arbitrator on the list. If the director finds a reasonable
basis for the objection, the director shall replace the name of the
arbitrator with the name of another arbitrator. Within thirty days
after delivery of the initial list or, if an arbitrator is
replaced, within thirty days after delivery of the replacement
list, each party shall strike from the list in each category any
name or names that are unacceptable and return a copy of the list
with his or her strikes to the director. Upon motion of either
party, the panel chairman, for good cause shown and in conjunction
with the director, shall require that subsequent strikes be made in
a lesser period of time. A party may not strike more than two
names in any category.
(2) If:
(i) The claim is against more than one health care provider, whether directly by a claimant or as a result of a third-party
claim, the health care providers claimed against shall be treated
as a single party and shall exercise their strikes jointly;
(ii) There is more than one claimant, the claimants shall be
treated as a single party and shall exercise their strikes jointly;
(iii) Within the time period specified in subdivision (1) of
this subsection, multiple claimants or multiple health care
providers fail to agree on their strikes in any category, they
shall notify the director of their disagreement, and the director
may make the strikes on their behalf with respect to that category;
and
(iv) Any party fails to return a copy of the list with his or
her strikes within the time period specified in subdivision (1) of
this subsection, the director may make the strikes for that party.
(e) Selection of arbitrators; attendance of alternates at
proceedings. --
(1) The director shall compare the lists returned to the
director and the lists from which the director has stricken names
pursuant to subsection (d) of this section, and shall select the
first mutually agreeable person in each category as the
arbitrators.
(2) The director shall establish by rule procedures for
selection of alternates to serve in place of arbitrators unable to
serve after appointment. Procedures for the selection of alternate
arbitrators shall provide that alternate arbitrators are chosen at
random from the categorical lists prepared by the director under
subsection (c), section nine-c of this article, and may not be
confined to time limitations in subsection (d) (1) of this section.
The director may require the attendance of an appropriate alternate
at any proceeding under this article.
(f) Agreement for single arbitrator. --
(1) The parties may, within the time for returning their lists
to the director, agree in writing upon a single arbitrator. In
that event, they shall advise the director in writing of their
choice, and the one arbitrator shall constitute the arbitration
panel.
(2) The director shall prepare a separate list of qualified
attorneys willing to serve as single arbitrators.
(g) Arbitrator's immunity from suit. -- An arbitrator shall
have the immunity from suit for any act or omission constituting
negligence while acting or performing duties in his or her capacity
as an arbitrator.
§55-7B-9f. Powers of arbitrators.
(a) The powers of the arbitration panel shall be exercised by
a majority of the arbitrators unless otherwise provided by
agreement of the parties or unless otherwise provided in this
article. Except as otherwise provided in this article, the
arbitration panel may determine any question and render a final
award by a majority of the arbitrators on the panel. If an
arbitrator for any reason ceases to act during the course of the
arbitration hearing, the remaining arbitrators, together with any
other arbitrator appointed to act as an alternate arbitrator, may
continue with the hearing and the determination of the claim.
(b) The arbitration panel chairperson shall have the power to
administer sworn oaths of witnesses testifying at a hearing at the
request of a party or of the majority of the arbitrators.
(c) The arbitration panel chairperson has the power to issue
subpoenas for the attendance of witnesses and for the production of
books, records, documents, and other evidence. A subpoena shall be
enforced in the manner provided by law or rule for the enforcement
of subpoenas in a civil action. All provisions of law which compel
a witness to testify under oath apply to proceedings in this
article.
§55-7B-9g. Venue of arbitration hearings; notice of hearing.
(a) Venue of arbitration hearings shall be the same as venue
in civil actions provided in section one, article one, chapter
fifty-six of this code. The claimant shall specify in his or her
claim filed pursuant to section nine-e of this article the county
in which the arbitration shall be held.
(b) Unless otherwise provided by agreement of the parties, the
arbitration panel chairperson shall designate a time and place for
hearing and shall notify the parties by personal service or by
certified mail of the time and place of hearing, not less than
thirty days before hearing. Each party shall have the right to one
continuance of the hearing, and thereafter a party may be granted
a continuance of a hearing for good cause shown.
§55-7B-9h. Arbitration of claim.
(a) Issues to be referred by director to panel chairperson and
panel. --
(1) Except as provided under subdivision (2) of this
subsection, all issues of law shall be referred by the director to
the panel chairperson. All issues of fact shall be referred by the
director to the arbitration panel.
(2) Where a panel chairperson has not been appointed or is temporarily unable to serve, the director may rule on all issues of
law arising prior to hearing that are not dispositive of the case
and shall include the assessment of costs.
(b) Application of other sections and West Virginia rules. -
(1) Except for the provisions of the West Virginia Rules of
civil procedure relating to time for the completion of discovery,
the provisions of the West Virginia rules of civil procedure
relating to discovery are applicable to proceedings under this
article. All discovery in any action under this article shall be
completed within two hundred and seventy days from the date on
which all defendants have been served, unless extended by the panel
chairperson for good cause shown.
(2) Properly authenticated hospital records and the records of
treating health care providers are admissible without the necessity
of calling the physician, subject to reasonable notice and the
right of the opposing party to depose.
(c) Chairperson of panel. -- The attorney member of the panel
shall be chairperson and shall decide all prehearing procedures
including issues relating to discovery and motions in limine. The
chairperson shall rule in camera on any motion in limine.
(d) Testimony by additional experts. -- A party may not present testimony from more than two experts in a designated
specialty before an arbitration panel unless the panel chairperson,
for good cause shown, permits additional experts.
(e) Determinations. -- The arbitration panel shall first
determine the issue of liability with respect to a claim referred
to it. If the arbitration panel determines that the health care
provider is not liable to the claimant or claimants the award shall
be in favor of the health care provider. If the arbitration panel
determines that a health care provider is liable to the claimant or
claimants, it shall then consider, itemize, assess, and apportion
appropriate damages against one or more of the health care
providers that it has found to be liable. The award shall itemize
by category and amount any damages assessed for incurred medical
expenses, rehabilitation costs, and loss of earnings. Damages
assessed for any future expenses, costs, and losses shall be
itemized separately.
(f) Assessment of costs; credit for filing fee. --
(1) The award shall include an assessment of costs, including
the arbitrators' fees.
(2) If there is no panel determination, the panel chairperson
shall assess costs.
(3) The party who pays the costs shall receive a credit for
the filing fee the party pays under section nine-c of this article.
(g) Delivery of award to director; service of copies. -- The
arbitration panel shall make its award in writing and deliver it to
the director within one year from the date on which all defendants
have been served and within ten days after the close of the
hearing. The director shall cause a copy of the award to be served
on each party within fifteen days of having received it from the
arbitration panel.
(h) Modification or correction of award. --
(1) A party may apply to the panel to modify or correct an
award within twenty days after delivery of the award to the
applicant.
(2) A written notice of an application to modify or correct
the award stating the grounds therefor shall be served upon the
opposing party and upon the panel chairperson. The opposing party
shall serve any objection to the application upon the applicant and
the panel chairperson within ten days after being served with the
application.
(3) The panel may modify or correct an award upon any of the
following grounds:
(A) There was an evident miscalculation of figures or an
evident mistake in the description of any person, thing, or
property referred to in the award;
(B) The panel has awarded upon a matter not submitted to them
and the award may be corrected without affecting the merits of the
decision upon the issues submitted;
(C) The award is imperfect in a matter of form, not affecting
the merits of the controversy;
(D) For the purposes of clarity.
(4) The panel shall conduct a hearing upon the application
within thirty days upon receipt of the application and shall give
the parties ten days notice of the hearing. If the correction or
modification of the award prayed for in the application is granted,
the panel shall confirm the award as modified or corrected.
Otherwise, the panel shall confirm the award as made.
(i) Confirmation of award- Subject to the provisions of
subsection (h) of this section and section nine-i of this article,
the award of the arbitration panel shall be final and binding on
the parties. After the time for either correcting, modifying or
rejecting the award has expired the director may, or, when
requested by any party, shall file a copy of the award with the circuit court having proper venue as designated upon the filing of
the complaint and the court shall confirm the award. Upon
confirmation the award shall constitute a final judgment of the
court.
§55-7B-9i. Judicial review.
(a) Rejection of award or assessment of costs. -- A party may
reject an award for any reason. A notice of rejection must be
filed with the director and the arbitration panel and served on the
other parties or their counsel within thirty days after the award
is served upon the rejecting party, or, if a timely application for
modification or correction has been filed, within ten days after a
disposition of the application by the panel, whichever is greater.
(b) Upon expiration of the time to file a notice of rejection
of the award provided in subsection (a) of this section and no
notice has been filed, the arbitration award shall be final and
binding upon all parties and upon confirmation pursuant to
subdivision (i) of section nine-h of this article is an award
enforceable and subject to the provisions of article ten of this
chapter.
(c) Commencement of action after rejection of award. --
(1) Within ninety days after a rejection of the award has been filed by a party pursuant to subdivision (a) of this section, or
prior to the running of the applicable statute of limitation,
whichever is greater, the claimant may file an action upon the
claim as if the arbitration had not occurred.
(2) The trial date for an action commenced pursuant to this
subsection shall have precedence over all cases except criminal
matters and any other matters given priority by statute or by state
court rules.
(3) The clerk of the court in which an action is filed under
this subsection shall forward a copy of the action to the state
licensing board of any physician named as a party defendant
therein.
(d) Nonadmissibility of award. -- The arbitration award is not
admissible as evidence in the judicial proceeding for any purpose.
(e) Admissibility of depositions from arbitration proceedings.
--
(1) Depositions taken in the arbitration proceedings shall be
as fully admissible as if noticed in court proceedings.
Interrogatories and requests for admissions and production of
documents in the arbitration proceedings remain binding in the
court proceedings, subject to a duty of supplementation.
(2) The provisions of subdivision (1) of this subsection do
not affect any rights to discovery on appeal.
(f) Itemization of certain damages; remittitur. -- Upon timely
request, the trier of fact shall by special verdict or specific
findings itemize by category and amount any damages assessed for
incurred medical expenses, rehabilitation costs, and loss of
earnings. Damages assessed for any future expenses, costs, and
losses shall be itemized separately. If the verdict or findings
include any amount for such expenses, costs, and losses, a party
may filing a motion within the time limits for filing a motion for
a new trial may object to the damages as excessive on the ground
that the award for noneconomic damages exceeds the amount allowable
pursuant to section eight of this article. The court shall hold a
hearing on the objection. If the court finds that the damages are
excessive on such grounds , it shall grant a remittitur of the
excess. Nothing in this subsection shall be construed to otherwise
limit any other grounds for a motion for a new trial by any party.
(g) Assessment of costs. -- If the verdict of the trier of
fact is not more favorable to the party that rejected the
arbitration panel's award, than was the award, the costs of the
judicial proceedings shall be assessed against the rejecting party. Otherwise, the court shall determine the assessment of such costs
in accordance with the law and the West Virginia rules of civil
procedure. If the court vacates an assessment of arbitration
costs, it shall reassess those costs as justice requires.
(h) Venue. -- Venue shall be determined in the same manner as
is determined in all other civil actions.
(i) Filing copy of verdict or other final disposition with
director. -- The clerk of the court shall file a copy of the
verdict or any other final disposition with the director.
§55-7B-9j. Waiver of arbitration before claim heard.
(a) In general. -- At any time before the hearing of a claim
with the health claims arbitration office, the parties may agree
mutually to waive arbitration of the claim, and the provisions of
this section then shall govern all further proceedings on the
claim.
(b) Written election. --
(1) The claimant shall file with the director a written
election to waive arbitration which must be signed by all parties
or their attorneys of record in the arbitration proceeding.
(2) After filing, the written election shall be mutually binding upon all parties.
(c) Filing of election complaint. --
(1) Within sixty days after filing the election to waive
arbitration, the plaintiff shall file a complaint and a copy of the
election to waive arbitration with the circuit court or United
States District Court.
(2) After filing the complaint, the plaintiff shall serve a
summons and a copy of the complaint upon the attorney of record for
all parties in the health claims arbitration proceeding.
(3) Failure to file a complaint within sixty days of filing
the election to waive arbitration may constitute grounds for
dismissal of the complaint upon motion by an adverse party and upon
a finding of prejudice to that party due to the delay in the filing
of the complaint.
(d) Additional defendants must join in waiver. -- After filing
the election to waive arbitration, the plaintiff may not join an
additional health care provider as a defendant in any action
brought under subsection (c) of this section unless a written
election to waive arbitration has been filed by that health care
provider under subsection (b) of this section.
(e) Procedure. -- In any case subject to this section, the procedures of subsection (f), section nine-i of this article shall
apply.
(f) Neutral case evaluation. --
(1) If the parties mutually agree to a neutral case
evaluation, the circuit court or United States District Court, to
which the case has been transferred after the waiver of
arbitration, may refer the case to the health claims arbitration
office not later than six months after a complaint is filed under
subsection (c) of this section.
(2) On receipt of the case, the director shall send to the
parties a list of six attorneys who meet the qualifications listed
in subsection (b), section nine-c of this article and have tried at
least three health care malpractice cases.
Each party may strike two names from the list. If the claim
is against more than one health care provider, whether directly by
a claimant or as a result of a third-party claim, the health care
providers claimed against shall be treated as a single party and
shall exercise their strikes jointly. If there is more than one
claimant, the claimants shall be treated as a single party and
shall exercise their strikes jointly. If multiple claimants or
multiple health care providers fail to agree on their strikes or fail to return their strike list to the director within the time
specified in this subdivision, the director shall make the strikes
on their behalf. The strikes shall be submitted to the director
within ten days after delivery of the list. The director shall
appoint an evaluator from the unstricken names on the list.
(3) Upon appointment, the evaluator shall schedule a neutral
case evaluation session to be held within forty-five days after the
appointment to pursue the neutral case evaluation of the claim or
to resolve any issues to which the parties agree to stipulate
before trial.
(4) Within ten days after the neutral case evaluation session,
the evaluator shall notify, in writing, the director and the
circuit court or United States District Court of the results of the
neutral case evaluation.
(5) During the neutral case evaluation period, the circuit
court or United States District Court shall continue to have
jurisdiction to rule on any motions or discovery matters. The
neutral case evaluation may not interfere with the scheduled trial.
(6) The evaluator shall be paid in accordance with fees set by
the director in subsection (c), section nine-c of this article.
Unless otherwise agreed by the parties, the cost of neutral case evaluation, which may not exceed three hundred dollars per case,
shall be divided equally between the parties.
(g) Applicability. -- The provisions of this section apply
only if no party waives arbitration of the claim under the
provisions of section nine-k of this article.
§55-7B-9k. Waiver of arbitration after filing certificate of
qualified expert.
(a) In general. -- Arbitration of a claim with the health
claims arbitration office may be waived by the claimant or any
defendant in accordance with this section, and the provisions of
this section shall govern all further proceedings on any claim for
which arbitration has been waived under this section.
(b) Waiver by claimant. --
(1) Subject to the time limitation under subsection (d) of
this section, any claimant may waive arbitration at any time after
filing the certificate of qualified expert required by subsection
(c), section nine-e of this article by filing with the director a
written election to waive arbitration signed by the claimant or the
claimant's attorney of record in the arbitration proceeding.
(2) The claimant shall serve the written election on all other
parties to the claim in accordance with the West Virginia rules of civil procedure.
(3) If the claimant waives arbitration under this subsection,
all defendants shall comply with the requirements of subsection
(c), section nine-e of this article by filing their certificates at
the health claims arbitration office, after the election, in the
appropriate circuit court or United States District Court.
(c) Waiver by defendant. --
(1) Subject to the time limitation under subsection (d) of
this section, any defendant may waive arbitration at any time after
the claimant has filed the certificate of qualified expert required
by subsection (c), section nine-e of this article by filing with
the director a written election to waive arbitration signed by the
defendant or the defendant's attorney of record in the arbitration
proceeding.
(2) The defendant shall serve the written election on all
other parties to the claim in accordance with the West Virginia
rules of civil procedure.
(3) If a defendant waives arbitration under this subsection,
the defendant shall comply with the requirements of subsection (c),
section nine-e of this article by filing the certificate at the
health claims arbitration office, or, after the election, in the appropriate circuit court or United States District Court.
(d) Time for filing. --
(1) A waiver of arbitration by any party under this section
may be filed not later than sixty days after all defendants have
filed a certificate of qualified expert under subsection (c),
section nine-e of this article.
(2) Any waiver of arbitration after the date specified in
subdivision (1) of this subsection shall be in accordance with the
provisions of section nine-j of this article.
(e) Effect of election. -- After filing, the written election
shall be binding upon all parties.
(f) Filing of complaint; service; dismissal. --
(1) Within sixty days after the filing of an election to waive
arbitration by any party, the plaintiff shall file a complaint and
a copy of the election to waive arbitration in the appropriate
circuit court or the United States District Court.
(2) After filing the complaint, the plaintiff shall serve a
summons and a copy of the complaint upon all defendants or the
attorney of record for all parties in the health claims arbitration
proceeding.
(3) Failure to file a complaint within sixty days of filing the election to waive arbitration may constitute grounds for
dismissal of the complaint upon a motion by an adverse party and
upon a finding of prejudice to the adverse party due to the delay
in the filing of the complaint.
(g) Joinder of additional health care providers. -- After the
filing of an election to waive arbitration under this section, if
a party joins an additional health care provider as a defendant in
an action, the party shall file a certificate of qualified expert
required by subsection (c), section nine-e of this article with
respect to the additional health care provider.
(h) Procedure. -- In any case subject to this section, the
procedures of subsection (f), section nine-i of this article shall
apply.
(i) Neutral case evaluation. --
(1) If the parties mutually agree to a neutral case
evaluation, the circuit court or United States District Court, to
which the case has been transferred after the waiver of
arbitration, may refer the case to the health claims arbitration
office not later than six months after a complaint is filed under
subsection (c) of this section. On receipt of the case, the
director shall send to the parties a list of six attorneys who
meet the qualifications listed in subsection (b), section nine-c of
this article and have tried at least three health care malpractice
cases.
(2) Each party may strike two names from the list. The
strikes shall be submitted to the director within ten days after
delivery of the list. If the claim is against more than one health
care provider, whether directly by a claimant or as a result of a
third-party claim, the health care providers claimed against shall
be treated as a single party and shall exercise their strikes
jointly. If there is more than one claimant, the claimants shall
be treated as a single party and shall exercise their strikes
jointly. If multiple claimants or multiple health care providers
fail to agree on their strikes or fail to return their strike list
to the director within the time specified in this subdivision, the
director shall make the strikes on their behalf. Upon receipt of
the lists from the parties after the parties have made their
strikes, the director shall appoint an evaluator from the
unstricken names on the list.
(3) Upon appointment, the evaluator shall schedule a neutral
case evaluation session to be held within forty-five days after the
appointment to pursue the neutral case evaluation of the claim or to resolve any issues to which the parties agree to stipulate
before trial.
(4) Within ten days after the neutral case evaluation session,
the evaluator shall notify, in writing, the director and the
circuit court or United States District Court of the results of the
neutral case evaluation.
(5) During the neutral case evaluation period, the circuit
court or the United States District Court shall continue to have
jurisdiction to rule on any motions or discovery matters. The
neutral case evaluation may not interfere with the scheduled trial.
(6) The evaluator shall be paid in accordance with fees for
arbitrators determined pursuant to subsection (c), section nine-c
of this article. Unless otherwise agreed by the parties, the cost
of neutral case evaluation, which may not exceed $300 per case,
shall be divided equally between the parties.
NOTE: The purpose of this bill is to provide incentives for
the retention of certain health care providers in this state. The
bill: (1)Adds an additional requirement for admissibility of
testimony of an expert witness on the standard of care by requiring
that such testimony may only be by an expert who either devotes
three fourths of his or her professional time to the clinical
practice of medicine or teaches in his or her field in an accredited university; and (2) Provides a comprehensive procedure
for nonbinding arbitration of medical professional liability claims
prior to the filing of an action on the claim, for all claims in
which damages sought exceed $75,000.
Strike-throughs indicate language that would be stricken from
the present law, and underscoring indicates new language that would
be added.
Section nine-a through nine-k, article seven-b, chapter fifty-
five are new; therefore, strike-throughs and underscoring are
omitted.