H. B. 2582


(By Delegates Ellem, L. Smith, Beane,

Ashley, Anderson and Trump)


[Introduced February 28, 2001 ; referred to the

Committee on the Judiciary.]




A BILL to amend and reenact section seven, article seven-b, chapter fifty-five of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to providing additional standards for the admittance of expert medical testimony in medical malpractice cases.

Be it enacted by the Legislature of West Virginia:
That section seven, article seven-b, chapter fifty-five of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted to read as follows:
ARTICLE 7B. MEDICAL PROFESSIONAL LIABILITY.
§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.
NOTE: The purpose of this bill is to provide additional standards for the admittance of expert medical testimony in medical malpractice cases.

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