hb619 intr

H. B. 619

(By Delegates Trump, Armstead, Ellem, Carmichael,
Azinger, Overington and L. Smith)

[Introduced November 13, 2001; referred to the

Committee on the Judiciary]

A BILL to amend chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article thirteen-p; to amend and reenact sections one, two, seven and eight, article seven- b, chapter fifty-five of the said code; 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 a limited tax credit to personal income tax and health care provider taxes for payment of medical professional liability insurance premiums; legislative findings; definitions; eligibility for tax credits; creation of the credit; amount of credit allowed; excess credit forfeited; application of credit; schedules; estimated taxes; computation and application of credit; legislative rules; construction of article; burden of proof; effective date; termination of tax credit; modifying certain statutory and common law procedures and common law procedures and causes of action relating to medical professional liability actions; 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"; limitation of actions for certain "bad faith settlement practices; modifying the requirements for testimony of expert witnesses on standard of care; reduction in compensatory damages for certain collateral source payments to claimants; postverdict determination of reduction in compensatory damages; eliminating joint, but not several, liability among multiple defendants in medical professional liability actions; 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; limiting venue of actions by nonresidents of the state in actions for a claim of medical professional liability.

Be it enacted by the Legislature of West Virginia:

"That chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto a new article, designated article thirteen-p; that sections one, two, seven, eight and nine, article seven-b, chapter fifty- five of said code be amended and reenacted; that the said article be further amended by adding thereto fourteen new sections, designated sections six-a, eight-a, eight-b, nine-a, nine-b, nine- c, nine-d, nine-e, nine-f, nine-g, nine-h, nine-i, nine-j and nine- k, and that section one, article one, chapter fifty-six of said code be amended and reenacted, all to read as follows:
CHAPTER 11. TAXATION.
ARTICLE 13P.
TAX CREDIT FOR MEDICAL LIABILITY INSURANCE PREMIUMS.

§11-13P-1. Legislative finding and purpose.

The Legislature finds that the retention of physicians practicing in this state is in the public interest and promotes the general welfare of the people of this state. The Legislature further finds that the promotion of stable and affordable medical malpractice liability insurance premium rates will induce retention of physicians practicing in this state.

In order to effectively decrease the cost of medical liability insurance premiums paid in this state on physicians' services, there is hereby provided a tax credit for certain medical liability insurance premiums paid.
§11-13P-2. Definitions.

(a) General. - When used in this article, or in the administration of this article, terms defined in subsection (b) of this section have the meanings ascribed to them by this section, unless a different meaning is clearly required by the context in which the term is used.

(b) Terms defined. -

(1)"Adjusted annual medical liability premium" means statewide average of medical liability insurance premiums by specialty and sub-specialty groups directly paid by the eligible taxpayer during the taxable year to cover physicians' services performed during the year reduced by the sum of ten thousand dollars per physician covered by the medical liability insurance policy or policies for which the premiums are paid.

(2) "Eligible taxpayer" means any person subject to tax under section sixteen, article twenty-seven of this chapter or a physician who is a partner, member, shareholder or employee of an eligible taxpayer.

(3) "Person" means and includes any natural person, corporation, limited liability company, trust or partnership.

(4) "Physicians' services" means health care providers services taxable under section sixteen, article twenty-seven of this chapter performed in this state by physicians licensed by the state board of medicine or the state board of osteopathic medicine.

(5) "Statewide average medical liability insurance premiums" are the average of premiums for each specialty and sub-specialty group as determined by the state insurance commission.
§11-13P-3. Eligibility for tax credits; creation of the credit.

There shall be allowed to every eligible taxpayer a credit against the taxes imposed by article twenty-one of this chapter and against the taxes payable under section sixteen, article twenty- seven of this chapter. The amount of this credit shall be determined and applied as provided in this article.
§11-13P-4. Amount of credit allowed.

The amount of annual credit allowable under this article to an eligible taxpayer shall be equal to ten percent of the adjusted annual medical liability insurance.
§11-13P-5. Excess credit forfeited.

If after application of the credit against tax under this article, any credit remains for the taxable year, the amount remaining and not used is forfeited. Unused credit may not be carried back to any prior taxable year and shall not carry forward to any subsequent taxable year.
§11-13P-6. Application of credit; schedules; estimated taxes.

(a) The credit allowed under this article shall be applied against the taxes imposed by article twenty-one of this chapter and against the tax payable under section sixteen, article twenty-seven of this chapter.

(b) To assert this credit against tax, the eligible taxpayer shall prepare and file with its annual tax return filed under article twenty-seven of this chapter, a schedule showing the amount paid for medical liability coverage for the taxable year, the amount of credit allowed under this article, the taxes against which the credit is being applied and other information that the tax commissioner may require. This annual schedule shall set forth the information and be in the form prescribed by the tax commissioner.

(c) An eligible taxpayer may consider the amount of credit allowed under this article when determining the eligible taxpayer's liability under article twenty-one and article twenty-seven of this chapter for periodic payments of estimated tax for the taxable year, in accordance with the procedures and requirements prescribed by the tax commissioner. The annual total tax liability and total tax credit allowed under this article are subject to adjustment and reconciliation pursuant to the filing of the annual schedule required by subsection (b) of this section.
§ 11-13P-7. Computation and application of credit.
(a) Computation of credit resulting from premiums directly paid by individual physicians or by small business corporations, partnerships, and limited liability companies; application of credit.

(1) Application of annual credit allowable. - The annual credit allowable under this article for eligible taxpayers other than payors described in subsection (b) of this section, shall be applied as a credit against the eligible taxpayer's income tax liability imposed by article twenty-one of this chapter and against the eligible taxpayer's state tax liability determined under section sixteen, article twenty-seven of this chapter, and shall be allowed as provided in subdivisions (2) and (3) of this subsection, and in that order.

(2) The annual credit allowable shall first be applied to reduce the eligible taxpayer's annual income tax liability imposed by article twenty-one of this chapter, determined after application of allowable credits and exemptions.

(A) If the eligible taxpayer is an electing small business corporation (as defined in Section 1361 of the United States Internal Revenue Code of 1986, as amended), a partnership, or a limited liability company treated as a partnership for federal income tax purposes, then the credit allowed by this article shall be applied as a credit against the taxes imposed by article twenty- one of this chapter on the income flowing through the eligible taxpayer to shareholders, partners or members of the eligible taxpayer and shall be allocated under this subsection among the eligible taxpayer's shareholders, partners or members in the same manner as profits and losses are allocated for the taxable year. In the case of shareholders, owners, partners or members of the eligible taxpayer that are not subject to the taxes imposed by article twenty-one of this chapter, no credit shall be allowed against tax on income flowing through those shareholders, owners, partners or members to any other person.

(B) No credit shall be allowed under this section against any employer withholding taxes imposed by article twenty-one of this chapter.

(3) After application of this credit as provided in subdivision (2) of this subsection, remaining annual credit allowable shall then be applied to reduce the eligible taxpayer's tax liability as determined under section sixteen, article twenty- seven of this chapter, determined after application of all other allowable credits and exemptions.

(b) Computation of credit for premiums directly paid by partners, members or shareholders of partnerships, limited liability companies, or corporations for or on behalf of such organizations; application of credit.
(1) Qualification for credit.
(A) For purposes of this section the term "eligible taxpayer organization" means a partnership, limited liability company, or corporation that is an eligible taxpayer.

(B) For purposes of this section the term "payor" means a natural person who is a partner, member, shareholder or owner, in whole or in part, of an eligible taxpayer organization and who pays medical liability insurance premiums for or on behalf of the eligible taxpayer organization.

(C) Medical liability insurance premiums paid by a payor (as defined in this section) qualify for tax credit under this article, provided that such payments are made to insure against medical liabilities arising out of or resulting from physicians' services provided by a physician while practicing in service to or under the organizational identity of such eligible taxpayer organization or as an employee of such eligible taxpayer organization, and where such insurance covers the medical liability of:

(i) the eligible taxpayer organization or

(ii) one or more physicians practicing in service to or under the organizational identity of the eligible taxpayer organization or as an employee of the eligible taxpayer organization or

(iii) any combination thereof.

(2) Application of credit by the payor against personal income tax. - The annual credit allowable under this subsection shall first be applied to reduce the payor's annual income tax liability imposed by article twenty-one of this chapter (determined after application of allowable credits and exemptions) on income flowing through the eligible taxpayer organization to the payor that is directly attributable to the business operations of the eligible taxpayer organization. No credit shall be allowed under this section against any employer withholding taxes imposed by article twenty-one of this chapter.

(3) Application of credit by the payor against health care provider tax on physician's services. - After application of this credit as provided in subdivision (2) of this subsection, remaining annual credit allowable shall then be applied to reduce the tax liability directly payable by the payor under section sixteen, article twenty-seven of this chapter, determined after application of all other allowable credits and exemptions.

(4) Application of credit by the eligible taxpayer organization against health care provider tax on physician's services. - After application of this credit as provided in subdivision (3) of this subsection, remaining annual credit shall then be applied to reduce the tax liability directly payable by the eligible taxpayer organization under section sixteen, article twenty-seven of this chapter, determined after application of all other allowable credits and exemptions.

(5) Apportionment among multiple eligible taxpayer organizations. - Where a payor described in subdivision (1) of this subsection pays medical liability insurance premiums for and provides services to or under the organizational identity of two or more eligible taxpayer organizations described in this section or as an employee of two or more such eligible taxpayer organizations, the tax credit shall, for purposes of subdivision (4) of this subsection, be allocated among such eligible taxpayer organizations in proportion to the medical liability insurance premiums paid directly by the payor during the taxable year to cover physicians' services during such year for, or on behalf of, each eligible taxpayer organization. In no event may the total credit claimed by all eligible taxpayers and eligible taxpayer organizations exceed the credit which would be allowable if the payor had paid all such medical liability insurance premiums for or on behalf of one eligible taxpayer organization, and if all physician's services had been performed for, or under the organizational identity of, or by employees of, one eligible taxpayer organization.
§11-13P-8. Legislative rules.

The tax commissioner may propose for promulgation pursuant to the provisions of article three, chapter twenty-nine-a of this code such rules as may be necessary to carry out the purposes of this article.
§11-13P-9. Construction of article; burden of proof.

The provisions of this article shall be reasonably construed. The burden of proof is on the person claiming the credit allowed by this article to establish by clear and convincing evidence that the person is entitled to the amount of credit asserted for the taxable year.
§11-13P-10. Effective date.

This article shall be effective for taxable years beginning after the thirty-first day of December, two thousand one.
§11-13P-11. Termination of tax credit.

No credit shall be allowed under this article for any taxable year ending after the thirty-first day of December, two thousand four.
CHAPTER 55. ACTIONS, SUITS AND ARBITRATION; JUDICIAL SALE.

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.

(h) "Collateral source" means: (1) The United States Social Security Act, as amended; (2) any state or federal disability, workers' compensation, or other act designed to provide income replacement, medical, or other benefits; (3) any accident, health or sickness, income or wage replacement insurance, income disability insurance, casualty or property insurance (including automobile and homeowners' insurance), or any other insurance except life insurance; (4) any contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the cost of medical, hospital, dental, or other health care services or provide similar benefits; or (5) any contractual or voluntary wage continuation plan provided by an employer or otherwise, or any other system intended to provide wages during a period of disability.

(i) "Collateral source payments" means money paid or payable by collateral sources for losses or expenses, including, but not limited to, property damage, wage loss, medical costs, rehabilitation costs, services, and other costs incurred by or on behalf of a plaintiff for which that plaintiff is claiming recovery through a tort action commenced in any of the courts in this state.
§55-7B-6a. Limitation of actions for certain "bad faith" settlement practices.
Notwithstanding any provision in this code to the contrary, including, but not limited to, the provisions of subdivision (9)(f), section four, article eleven, chapter thirty-three of this code, no claimant in an action for medical professional liability may bring a direct action against an insurer insuring any health care provider against whom the claim for medical professional liability is asserted, for not attempting in good faith to effectuate prompt, fair and equitable settlements of claims in which liability has become reasonably clear, under any circumstances.

§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-8a. Reduction in compensatory damages for collateral sources payments.

Notwithstanding any other provision of this code, in all medical professional liability actions, regardless of the theory of liability under which they are commenced, the total amount of compensatory damages awarded to a plaintiff under such action shall be reduced, in accordance with section eight-b of this article, by any collateral source payments made or to be made to the plaintiff, except insurance for which the plaintiff, spouse of the plaintiff, or parent of the plaintiff, has paid a premium, insurance that is subject to a right of subrogation, workers' compensation benefits that are subject to a right of subrogation, or insurance that has any other obligation of repayment.
§55-7B-8b. Postverdict determination of reduction in compensatory damages.

The reduction in compensatory damages required under section eight-a of this article shall be determined by the court after the verdict and before judgment is entered. Reduction may be made only if the collateral source payments are compensation for the same damages for which recovery is sought in the action. At trial no evidence shall be admitted as to the amount of any charges, payments, or losses for which a plaintiff (i) has received payment from a collateral source or the obligation for which has been assumed by a collateral source, or (ii) is, or with reasonable certainty will be, eligible to receive payment from a collateral source or the obligation for which will, with reasonable certainty, be assumed by a collateral source. A plaintiff who has received or is to receive collateral source payments may introduce evidence before the court, but not at trial, of any of the following: (a) Any amount which the plaintiff has paid or contributed to secure his right to any such collateral source payments; (b) that any recovery by the plaintiff is subject to a lien by a collateral source; (c) that a provider of such collateral source payments has a statutory right of recovery against the plaintiff for reimbursement of such payments; or (d) that the provider of such collateral source payments has a right of subrogation to the rights of the plaintiff.

After considering the evidence of collateral source introduced by any party, the court shall make a determination as to the amount by which a plaintiff's compensatory damages will be reduced by any such collateral source payments.

§55-7B-9. Joint and several liability.

(a) In the trial of a medical professional liability action against a health care provider involving multiple defendants, the jury shall be required to report its findings to the court on a form provided by the court which contains each of the possible verdicts as determined by the court.

(b) In every medical professional liability action, the court shall make findings as to the total dollar amount awarded as damages to each plaintiff. The court ~~shall~~ may not enter judgement of joint and several liability against ~~every~~ any defendant. ~~which bears twenty-five percent or more of the negligence attributable to all defendants.~~ The court shall enter judgment of several, but not joint, liability against and among ~~all~~ defendants ~~which bear less than twenty-five percent of the negligence attributable to all defendants~~ in accordance with the percentage of negligence attributable to each defendant.

(c) Each defendant against whom a judgement of joint and several liability is entered in a medical professional liability action pursuant to subsection (b) of this section is liable to each plaintiff for all or any part of the total dollar amount awarded regardless of the percentage of negligence attributable to him. A right of contribution exists in favor of each defendant who has paid to a plaintiff more than the percentage of the total dollar amount awarded attributable to him relative to the percentage of negligence attributable to him. The total amount of recovery for contribution is limited to the amount paid by the defendant to a plaintiff in excess of the percentage of the total dollar amount awarded attributable to him relative to the percentage of negligence attributable to him. No right of contribution exists against any defendant who entered in to a good faith settlement with the plaintiff prior to the jury's report of its findings to the court or the court's findings as to the total dollar amount awarded as damages.
(d) Where a right of contribution exists in a medical professional liability action pursuant to subsection (c) of this section, the findings of the court or jury as to the percentage of negligence and liability of the several defendants to the plaintiff shall be binding among such defendants as determining their rights of contribution.

§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;

(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.

(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.

(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. --

(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.

(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.

(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.
CHAPTER 56. PLEADING AND PRACTICE.
ARTICLE 4. MISCELLANEOUS PROVISIONS RELATING TO PROCEDURE.
§56-1-1. Venue generally.

(a) Any civil action or other proceeding, except where it is otherwise specially provided, may hereafter be brought in the circuit court of any county:

(1) Wherein any of the defendants may reside or the cause of action arose, except that an action of ejectment or unlawful detainer must be brought in the county wherein the land sought to be recovered or some part thereof, is; or

(2) If a corporation be a defendant, wherein its principal office is, or wherein its mayor, president or other chief officer resides; or if its principal office be not in this state, and its mayor, president or other chief officer do not reside therein, wherein it does business; or if it be a corporation organized under the laws of this state, which has its principal office located outside of this state, and which has no office or place of business within the state, the circuit court of the county in which the plaintiff resides or the circuit court of the county in which the seat of state government is located shall have jurisdiction of all actions at law or suits in equity against such corporation, where the cause of action arose in this state or grew out of the rights of stockholders with respect to corporate management; or

(3) If it be to recover land or subject it to a debt, wherein such land or any part thereof may be; or

(4) If it be against one or more nonresidents of the state, wherein any one of them may be found and served with process, or may have estate or debts due him or them; or

(5) If it be to recover a loss under any policy of insurance, upon either property, life or health, or against injury to a person, wherein the property insured was situated either at the date of the policy or at the time when the right of action accrued; or the person insured had a legal residence at the date of his death or at the time when the right of action accrued; or

(6) If it be on behalf of the state in the name of the attorney general or otherwise, wherein the seat of government is; or

(7) If a judge of a circuit be interested in a case which, but for such interest, would be proper for the jurisdiction of his court, the action or suit may be brought in any county in an adjoining circuit.

(b) Whenever a civil action or proceeding is brought in the county wherein the cause of action arose, under the provisions of subsection (a) of this section, if no defendant resides in such county, a defendant to the action or proceeding may move the court before which the action is pending for a change of venue to a county wherein one or more of the defendants resides, and upon a showing by the moving defendant that the county to which the proposed change of venue would be made would better afford convenience to the parties litigant and the witnesses likely to be called, and if the ends of justice would be better served by such change of venue, the court may grant such motion.

(c)

A nonresident of the state may not bring an action for a claim for medical professional liability in a court of this state unless (i) all or a substantial part of the acts or omissions giving rise to the claim asserted occurred in the state, or (ii) jurisdiction cannot be obtained against the defendant in the state where the acts or omissions giving rise to the claim occurred. In a civil action where more than one plaintiff is joined, each plaintiff must independently establish proper venue. A person may not intervene or join in a pending civil action for medical professional liability as a plaintiff unless the person independently establishes proper venue pursuant to this subdivision."

NOTE: The purpose of this bill is to provide incentives for the retention of certain health care providers in this state. The bill: (1) provides for a limited tax credit against personal income taxes and health care provider taxes for payment of premiums for medical professional liability insurance; (2) prohibits direct actions by claimants in medical professional liability actions against medical professional liability insurers for bad faith settlement practices; (3)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; (4) Allows for reduction judgments for compensatory damages for certain collateral source payments; (5) eliminates joint, but not several, liability among multiple defendants in actions for medical professional liability; (6) 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; (7) limits venue for medical professional liability actions brought in this state by nonresidents.

Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.