H. B. 3062


(By Mr. Speaker, Mr. Kiss, and Delegates Amores,
Michael, Cann, Beane, Craig and Morgan)
[Introduced March 29, 2001; referred to the
Committee on the Judiciary then Finance.]



A BILL to amend chapter fifty-five of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto two new articles, designated articles seven-e and seven-f, all relating to providing a mandatory prelitigation screening for medical professional liability claims and establishing panels for screening and mediation and to require a health-care provider affidavit in support of civil action, and a new article; and providing a set-off or reimbursement for collateral sources covering health care costs in medical professional liability actions.

Be it enacted by the Legislature of West Virginia:
That chapter fifty-five of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended by adding thereto two new articles, designated articles seven-e and seven-f, all to read as follows:
ARTICLE 7E. MANDATORY PRELITIGATION SCREENING AND MEDIATION PANELS.

§55-7E-1. Legislative findings; purpose and definitions.
(a) Legislative findings. -- The Legislature finds that the volume of medical professional liability claims and the need to improve the quality of medical care is a statewide issue. The Legislature 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. The possibility of injury or death actually caused by negligent conduct is an important state interest which requires protection of the public served by health-care providers. This state's civil justice system is an essential component of the state interest in providing adequate and reasonable compensation to those persons who suffer from injury or death as a result of professional negligence. Liability insurance is a key part of our civil justice system, affording compensation to the injured while fulfilling the need of fairness in spreading the cost of the risk of injury.
Professional medical liability insurers have left or are leaving the state due to the volume of medical professional liability claims and subsequent costs. Lengthy litigation and nonmeritorious claims increase the cost of litigation and professional medical liability insurance. It is the Legislature's duty and responsibility to balance the rights of this state's citizens to adequate and reasonable compensation with the broad public interest of medical services provided by qualified health-care providers who can themselves obtain the protection of reasonably priced and extensive liability coverage. With the increase in insurance coverage costs and diminishing coverage, health-care providers and the injured citizens of this state are without the full benefit of professional medical liability insurance coverage. Therefore, the purpose of this statute is to provide a comprehensive resolution to factors which the Legislature finds must be addressed and which rationally relates to the accomplishment of the purposes set forth above, to identify claims of medical professional liability which merit compensation and to encourage early resolution of those claims prior to commencement of a lawsuit, and to identify claims of medical professional liability which do not merit compensation and to encourage early withdrawal or dismissal of nonmeritorious claims.
(b) Purpose. -- The purpose of mandatory prelitigation screening and mediation panels is to:
(1) Identify claims of medical professional liability which merit compensation and to encourage early resolution of those claims prior to commencement of a lawsuit; and
(2) Identify claims of medical professional liability which do not merit compensation and to encourage early withdrawal or dismissal of nonmeritorious claims.
(b)Definitions. -- As used in this article, unless the context otherwise indicates, the following terms have the following meanings:
(1) A "claim of medical professional liability" means any written notice of claim served pursuant to the provisions of section three of this article against health-care providers or any employee or agent thereof acting within the scope of their authority.
(2) "Health-care providers" means those persons defined in article seven-b of this chapter.
§55-7E-2. Formation and procedure.
(a) Creation of panel lists.
(1) The chief justice of the supreme court of appeals of West Virginia shall provide to the clerk of the supreme court of appeals of West Virginia the names of retired justices and judges, persons with judicial experience and other qualified persons whom the court recommends to serve on screening panels under this article. The clerk of the supreme court of appeals of West Virginia shall place these names on a list from which the chief judge of the circuit court where the claim is filed will choose a panel chair.
(2) The clerk of the supreme court of appeals of West Virginia shall also maintain lists of health-care providers and attorneys whose names have been submitted by the respective professional associations to serve on screening panels under this article.
(b) Selection of panel members; compensation. -- Screening panel members shall be selected as follows:
(1) Upon receipt of a notice of claim under the provisions of section three of this article, the clerk of the circuit court who receives the notice shall notify the chief judge of the circuit court. The chief judge shall choose a retired justice or judge, a person with judicial experience or other qualified person from the list maintained by the clerk of the supreme court of appeals of West Virginia to serve as chair of the panel to screen the claim. If at any time a chair chosen under this subdivision is unable or unwilling to serve, the chief judge shall appoint a replacement following the procedure in this paragraph for the initial appointment of a chair. Persons other than retired justices and judges or those with judicial experience may be appointed as chair based on appropriate trial experience. If the chief judge seeks to appoint as chair a person who is not a retired justice or judge or does not have judicial experience, each side is entitled to exercise one challenge to the appointment of a chair by the chief judge.
(2) Upon notification of the chief judge's choice of chair, the clerk who received the notice of claim under the provisions of section three of this article shall notify that person and provide that person with a copy of the lists of health-care providers and attorneys maintained by the clerk of the supreme court of appeals of West Virginia under the provisions of subsection (a) of this section. The chair shall choose from those lists two or three additional panel members as follows:
(A) The chair shall choose one attorney;
(B) The chair shall choose one health-care provider. Whenever possible, the chair shall choose a provider who practices in the specialty or profession of the person accused of medical professional liability but who is not an economic competitor;
(C) Where the claim involves more than one person accused of medical professional liability the chair may choose a fourth panel member who is a health-care provider. If possible, the chair shall choose a provider in the specialty or profession of a person accused; and
(D) When agreed upon by all the parties, the list of available panel members may be enlarged in order to select a panel member who is agreed to by the parties but who is not on the clerk's list.
(3) The chief justice of the supreme court shall establish the compensation of the panel chair. Other panel members shall serve without compensation. Reasonable expenses not to exceed one hundred dollars per diem may be submitted to the supreme court for payment.
(4) The clerk of the circuit court in the judicial circuit in which the notice of claim is filed under the provisions of section three of this article shall, with the consent of the chief judge, provide clerical and other assistance to the panel chair.
(c) Challenges; replacements. -- If any panel member other than the chairman is unable or unwilling to serve in any matter or is challenged for cause by any person who is a party to a proceeding before a panel, the party challenging the member must request a replacement from the lists maintained by the clerk of the supreme court of appeals of West Virginia under the provisions of subsection (a) of this section, chosen by the chairman who shall so notify the parties. There may only be challenges for cause allowed. The chairman shall inquire as to any bias on the part of a panel member or as requested by any party.
If the chairman is challenged for cause by any person who is a party to the proceeding before a panel, the party challenging shall notify the chief judge of the circuit court. If the chief judge finds cause for the challenge, the chief judge shall replace the chairman following the procedure for the initial appointment.
(d) Subpoena power. -- The panel, through the chairman, has the same subpoena power as exists for a circuit court judge. The chairman has sole authority, without requiring the agreement of other panel members, to issue subpoenas.
(e) Discovery. -- The chair, upon application of a party, may permit limited, reasonable discovery. The chair may rule on requests regarding discovery, or may allow the parties to seek a ruling in the circuit court under the provisions of subsection (h) of section three of this article.
§55-7E-3. Submission of claims.
(a) Notice of claim. -- A person may commence a claim for medical professional liability by:
(1) Serving a written notice of claim, setting forth, under oath, the medical professional liability alleged and the nature and circumstances of the injuries and damages alleged, on the person accused of medical professional liability. The notice of claim must be filed with the circuit court within twenty days after completion of service; or
(2) Filing a written notice of claim, setting forth, under oath, the medical professional liability alleged and the nature and circumstances of the injuries and damages alleged, with the circuit court. The claimant also must serve the notice of claim on the person accused of medical professional liability. The return of service must be filed with the court within ninety days after filing the notice of claim.
(3) Service must be made in accordance with the West Virginia rules of civil procedure, rule 4.
(b) Jurisdiction. -- Claims may be filed only in any court which would have jurisdiction over the parties to the lawsuit following prelitigation screening and mediation.
(c) Confidentiality. -- The notice of claim and all other documents filed with the court in the action for medical professional liability during the prelitigation screening process are confidential.
(d) Fee. -- At the time of filing notice of claims with the court, the claimant shall pay to the clerk a filing fee of two hundred dollars for each notice filed.
(e) Appearance; filing fee. -- Within twenty days of receipt of notice of service upon the clerk, the person or persons accused of medical professional liability in the notice, or that person's representative, must file a notice of appearance with a copy to the claimant.
(f) Waiver. -- Any person making claim may, at the time of filing, apply to the chair of the panel for a waiver of the filing fee. The chair must grant the waiver if the party is indigent. In determining the indigency of the party, the chair shall consider the factors contained in the rules governing the determination of indigency as are used to determine appointment of counsel pursuant to the code of West Virginia, one thousand nine hundred thirty-one, as amended.
(g) Filing of records; time for hearing; extensions. -- Within twenty days of entry of appearance, the person or persons accused or their representative must contact the claimant's counsel or claimant, if there be no counsel, and by agreement shall designate a timetable for filing all the relevant medical and provider records necessary for a determination by the panel and completing discovery. Within sixty days of the entry of appearance, if the parties are unable to agree on a timetable, the claimant shall notify the chair of the panel. The chair shall then establish a timetable for the filing of all relevant records and reasonable discovery, which must be filed at least thirty days before any hearing date. Depositions of persons other than the parties and the experts designated by the parties may not be taken except as permitted by the chair upon the request of a party. The hearing may not be later than six months from the service of the notice of claim upon the clerk, except when the time period has been extended by the panel member chair in accordance with the provisions of this article.
(h) Lawsuits. -- The pretrial screening may be bypassed if all parties agree upon a resolution of the claim by lawsuit. All parties to a claim may, by written agreement, submit a claim to the binding determination of the panel, either prior to or after the commencement of a lawsuit. Both parties may agree to bypass the panel and commence a lawsuit for any reason, or may request that certain preliminary legal affirmative defenses or issues be litigated prior to submission of the case to the panel. The panel has no jurisdiction to hear or decide, absent the agreement of the parties, dispositive legal affirmative defenses and comparative negligence. The panel chair may require the parties to litigate, by motion, dispositive legal affirmative defenses in the circuit court prior to submission of the case to the panel. Any such defense, as well as any motion relating to discovery that the panel chair has chosen not to rule on may be presented, by motion, in circuit court without the necessity of a complaint having first been filed. The chief judge shall assign a judge to hear and rule upon matters brought to the court during the prelitigation process.
(i) Combining hearings. -- Except as otherwise provided in this section, there shall be one combined hearing or hearings for all claims under this section arising out of the same set of facts. Where there is more than one person accused of professional negligence against whom a notice of claim has been filed based on the same facts, the parties may, upon agreement of all parties, require that hearings be separated. The chairman may, for good cause, order separate hearings.
(j) Extensions of time. -- All requests for extension of time under this subdivision must be made to the panel chair. The chair may extend any time period under this subdivision for good cause, except that the chair may not extend any time period that would result in the hearing being held more than one year from the filing of notice of claim upon the clerk unless good cause is shown.
(k) Dismissal. -- Cases pending before the panels may be dismissed as follows:
(1) Voluntary dismissal will be governed as follows:
(A) Any action before the panel may be dismissed by the plaintiff by filing a notice of dismissal at any time prior to the appointment of the panel or by filing a stipulation of dismissal signed by all parties who have appeared in the action. Unless otherwise stated in the notice of dismissal, stipulation or order, the dismissal is without prejudice. A plaintiff must refile and reserve a notice of claim to reinstitute a medical professional liability claim following a dismissal under this section.
(B) Except as provided in subdivision (A) of this subsection, an action may not be dismissed on the plaintiff's motion except on order of the chair of the panel and on terms and conditions the chair deems proper.
(2) Involuntary dismissal is governed as follows:
(A) On failure of the plaintiff to prosecute or to comply with rules or any order of the chair, and on motion by the chair or any party, after notice to all parties has been given and the party against whom sanctions are proposed has had the opportunity to be heard and show good cause, the chair may order appropriate sanctions, which may include dismissal of the case. If any sanctions are imposed, the chair shall state the sanctions in writing and include the grounds for the sanctions.
(B) Unless the chair or the panel in an order for dismissal specifies otherwise, a dismissal under this subdivision is with prejudice for purposes of proceedings before the panel. A dismissal with prejudice is deemed to be the equivalent of a finding for the defendant on all issues before the panel.
(l) Default. -- In addition to the sanctions set out in subsection (k) of this section, the following sanctions may be imposed against a defendant in a case pending before the panel:
(1) On failure of a defendant to comply with the rules or any order of the chair, and on motion by the chair or any party, after notice to all parties has been given and the party against whom sanctions are proposed has had the opportunity to be heard and show good cause, the chair may order appropriate sanctions, which may include default. If any sanctions are imposed, the chair shall state the sanctions in writing and include the grounds for the sanctions;
(2) Unless the chair or the panel in its order for default specifies otherwise, a default under this paragraph is deemed to be the equivalent of a finding against the defendant on all issues before the panel.
§55-7E-4. Hearing.
(a) Procedure. --
(1) The claimant or a representative of the claimant must present the case before the panel. The person accused of medical professional liability or that person's representative must make a responding presentation. Wide latitude must be afforded the parties by the panel in the conduct of the hearing including, but not limited to, the right of examination and cross-examination by attorneys. Depositions are admissible whether or not the person deposed is available at the hearing. The chair shall make all procedural rulings and those rulings are final. The West Virginia rules of evidence do not apply. Evidence must be admitted if it is the kind of evidence upon which reasonable persons are accustomed to rely in the conduct of serious affairs. The panel shall make such findings upon such evidence as is presented at the hearing, the records and any expert opinions provided by or sought by the panel or the parties.
(2) After presentation by the parties, as provided in this section, the panel may request from either party additional facts, records or other information to be submitted in writing or at a continued hearing, which continued hearing must be held as soon as possible. The continued hearings must be attended by the same members of the panel who have sat on all prior hearings on the same claim, unless otherwise agreed by all parties.
(b) Record; hearings. -- The panel shall maintain an audio- tape record of the proceedings. Except as provided in section eight of this article, the record may not be made public and the hearings may not be public without the consent of all parties.
(c) Settlement; mediation. -- The chair of the panel shall attempt to mediate any differences of the parties and attempt resolution by settlement if the parties consent, before proceeding to findings.
(d) Failure to comply. -- Failure of a party, without good cause, to attend a properly scheduled hearing to participate in authorized discovery, or to otherwise substantially comply with this subdivision, must result in a finding made by a majority of the panel against that party and that finding has the same effect as a finding against that party under the provision of section three of this article.
§55-7E-5. Findings by panel.
(a) Negligence and causation. -- At the conclusion of the presentation, the panel shall make its findings in writing within forty-five days by answering the following questions:
(1) Whether the acts or omissions complained of, in the opinion of the panel, constitute a deviation from the applicable standard of care by the health-care provider charged with that care;
(2) Whether the acts or omissions complained of, in the opinion of the panel, proximately caused the injury complained of; and
(3) If negligence on the part of the health-care provider is found, whether any negligence on the part of the patient was equal to or greater than the negligence on the part of the provider.
(b) Standard of proof. -- The standard of proof used by the panel shall be:
(1) The plaintiff must prove negligence and proximate causation by a preponderance of the evidence; and
(2) The defendant must prove comparative negligence by a preponderance of the evidence.
§55-7E-6. Notification and effect of findings.
The panel's findings, signed by the panel members, indicating their vote, shall be served by registered or certified mail on the parties within seven days of the date of the findings. The findings, notice of claim and record of the hearing shall be preserved until thirty days after final judgment or the case is finally resolved, after which time it shall be destroyed. All medical and provider records shall be returned to the party providing them to the panel.
§55-7E-7. Confidentiality and admissibility.
(a) Proceedings before panel confidential. -- Except as provided in this section and section eight of this article, all proceedings before the panel, including its final determinations, must be treated in every respect as private and confidential by the panel and the parties to the claim.
(1) The findings and other writings of the panel and any evidence and statements made by a party or a party's representative during a panel hearing are not admissible and may not otherwise be submitted or used for any purpose in a subsequent court action and may not be publicly disclosed, except that:
(A) Any testimony or writings made under oath may be used in subsequent proceedings for purposes of impeachment; and
(B) The party who made the statement or presented the evidence may agree to the submission, use or disclosure of that statement or evidence.
(2) If the panel findings as to both the questions under the provisions of subdivisions (1) and (2), subsection (a), section five of this article are unanimous and unfavorable to the person accused of medical professional liability, the findings are admissible in any subsequent court action for medical professional liability against that person by the claimant based on the same set of facts upon which the notice of claim was filed.
(3) If the panel findings as to any question are unanimous and unfavorable to the claimant pursuant to the provision of section five of this article, the findings are admissible in any subsequent court action for medical professional liability against the person accused of medical professional liability by the claimant based on the same set of facts upon which the notice of claim was filed.
The confidentiality provisions of this section do not apply if the findings were influenced by fraud.
(b) Deliberations, discussions and testimony privileged and confidential. -- The deliberations and discussions of the panel and the testimony of any expert, whether called by any party or the panel, shall be privileged and confidential, and no such person may be asked or compelled to testify at a later court proceeding concerning the deliberations, discussions, findings or expert testimony or opinions expressed during the panel hearing, unless by the party who called and presented that nonparty expert who subsequently uses the expert at trial and thereby waives the privilege and confidentiality, except such deliberation, discussion and testimony as may be required to prove an allegation of fraud.
(c) Discovery; subsequent court action. -- The West Virginia rules of civil procedure govern discovery conducted under this article. The chair has the same authority to rule upon discovery matters as a circuit court judge. In a subsequent circuit court action, all discovery conducted during the prelitigation screening panel proceedings is deemed discovery conducted as a party of that court action; however, the rulings of the chair as to prelitigation discovery are not binding upon the parties in the subsequent litigation.
§55-7E-8. Effect of findings by panel.
A unanimous finding by the panel of any claim under this article shall be implemented as follows:
(a) Payment of claim; determination of damages. -- If the unanimous findings of the panel as to the provisions of section five of this article are in the affirmative, the person accused of medical professional liability must promptly enter into negotiations to pay the claim or admit liability. If liability is admitted, the claim may be submitted to the panel, upon agreement of the claimant and person accused, for determination of damages. If suit is brought to enforce the claim, the findings of the panel are admissible as provided in section seven of this article.
(b) Release of claim without payment. -- If the unanimous findings of the panel as to the provisions of either subsection (a) or (b), section five of this article are in the negative, the claimant must release the claim or claims based on the findings without payment or be subject to the admissibility of those findings in a subsequent court action based on the same set of facts upon which the notice of claim was filed.
§55-7E-9. Statute of limitations.
The applicable statute of limitations concerning actions for medical professional liability is tolled from the date upon which notice of claim is served or filed in the circuit court until thirty days following the day upon which the claimant receives notice of the findings of the panel.
§55-7E-10. Notice of claim before suit.
(a) Commencement of action. -- No action for medical professional liability may be commenced until the plaintiff has:
(1) Served and filed written notice of claim in accordance with the provisions of section three of this article;
(2) Complied with the provisions of this article;
(3) Determined that the thirty-day time period provided in section nine of this article has expired; and,
(4) Filed, or if represented by an attorney had his attorney file, with the complaint an affidavit of merit signed by a health-care provider who the plaintiff's attorney reasonably believes meets the requirements for an expert witness under the provisions of article seven-b of this chapter. The affidavit of merit shall certify that the health-care provider has reviewed the complaint and all medical records supplied him by the plaintiff's attorney concerning the medical allegations contained in the complaint and shall contain a statement of each of the following: (A) The applicable standard of practice or care; (B) The health-care provider's opinion that the applicable standard of practice or care was breached by the health-care provider receiving or to receive the complaint; (C) The actions that should have been taken or were omitted by the health-care provider in order to have complied with the applicable standard of practice or care; (D) The manner in which the breach of the standard of practice or care was the proximate cause of the injury alleged in the complaint; and (E) The health-care provider's qualifications which qualify him to render opinions (A) through (D).
(b) Upon motion of a party for good cause shown, the court in which the complaint is filed may grant the plaintiff an additional thirty days in which to file the affidavit required under this section.
ARTICLE 7F. COLLATERAL SOURCES.
§55-7F-1. Reduction in compensatory damages for collateral source payments.

Notwithstanding any other provision of this code, in medical professional liability actions, the total amount of compensatory damages awarded to a plaintiff under such action must be reduced, in accordance with the provision of section two of this article, by any collateral source payments made or to be made to the plaintiff.
§55-7F-2. Post-trial determination of reduction in compensatory damages.

The reduction in compensatory damages required under section one of this article shall be determined by the court in a post-trial proceeding before the entry of the final judgment order. In that proceeding, the court shall allow the introduction of evidence of collateral source payments which have already been made or which are reasonably certain to be made to a plaintiff as compensation for the same damages for which recovery is sought in the action. In addition, a plaintiff who has received or is to receive collateral source payments may introduce evidence of any of the following: (1) Any amount which the plaintiff has paid or contributed to secure his right to any such collateral source payments; (2) that any recovery by the plaintiff is subject to a lien by a collateral source; (3) that a provider of such collateral source payments has a statutory right of recovery against the plaintiff for reimbursement of such payments; or (4) that the provider of such collateral source payments has a right of subrogation to the rights of the plaintiff.
After considering the evidence, the court shall make a determination as to the amount by which a plaintiff's compensatory damages as awarded by the jury shall be reduced by any such collateral source payments. The court shall make such other orders as justice requires for satisfaction or compromise of any liens or rights of subrogation. Thereafter, a final order shall be entered which reflects the compensatory damage award as modified by the collateral sources reduction.
NOTE: The purpose of this bill is to provide a procedure for mandatory prelitigation screening for medical professional liability claims; establishing panels for screening and mediation requiring a health-care provider affidavit in support of civil action; and requiring a set-off or reimbursement for collateral sources covering health care costs in medical professional liability actions.

§§55-7E and 7F are new; therefore, strike-throughs and underscoring have been omitted.