Senate Bill No. 535
(By Senators Sprouse, Boley, Minear, Deem, McKenzie and
Facemyer)
[Introduced March 20, 2001; referred to the
Committee on the
Judiciary; and then to the Committee on Finance.]
A BILL to amend article twenty-seven, chapter eleven of the code
of West Virginia, one thousand nine hundred thirty-one, as
amended, by adding thereto a new section, designated section
thirty-six; to amend and reenact sections one, two and
eight, article seven-b, chapter fifty-five of 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 providing incentives for the retention of
certain health care providers in this state; the "West
Virginia Medical Access Enhancement Act"; phasing out the
health care provider tax imposed on gross receipts of
services performed in this state by chiropractors, dentists,
nurses, opticians, optometrists, physicians, podiatrists,
psychologists and therapists; reaffirming the intent of the
Legislature to limit the maximum amount of noneconomic
damages recoverable in a medical professional liability
action to not more than one million dollars; providing for
a remittitur of judgment for damage awards in excess of the
limit; 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"; providing for
exclusiveness of arbitration procedures applicable to claims
for damages of seventy-five thousand dollars or more;
applicability of state court rules; creating the health
claims arbitration office; appointment, duties, powers and
compensation of director; lists of qualified persons willing to serve as arbitrators; designating categories and
qualifications thereof; creating the health care arbitration
fund as a special revenue fund; purpose, administration and
use of fund; providing fees for filing claims and responses
to claims; procedures for the filing of claims; appointment
of arbitrators; arbitrators' immunity from suit;
requirements and procedures for filing a certificate of a
qualified expert by parties; powers of the arbitration panel
and chairperson; power of the panel chairperson to
administer oaths to witnesses and to issue subpoenas;
enforcement of subpoenas; venue; notice of hearing;
procedure for arbitration of claim; issues of law to be
determined by panel chairperson and issues of fact to be
determined by panel; determination of liability;
determination, itemization and apportionment of damages;
application to correct or modify award; procedure for
confirmation of award; confirmation of award final and
binding upon the parties; judicial review; procedure for
judicial review; providing a procedure for waiver of
arbitration before claim heard; waiver of arbitration after
filing of certificate of qualified expert; procedure.
Be it enacted by the Legislature of West Virginia:
That article twenty-seven, chapter eleven of the code of
West Virginia, one thousand nine hundred thirty-one, as amended,
be amended by adding thereto a new section, designated section
thirty-six; that sections one, two and eight, article seven-b,
chapter fifty-five of said code be amended and reenacted; and
that said article be further amended by adding thereto eleven new
sections, designated sections nine-a, nine-b, nine-c, nine-d,
nine-e, nine-f, nine-g, nine-h, nine-i, nine-j and nine-k, all to
read as follows:
CHAPTER 11. TAXATION.
ARTICLE 27. HEALTH CARE PROVIDER TAXES.
§11-27-36. Phase out and elimination of taxes on services of
individual practitioners.
Effective the first day of July, two thousand one, the tax
imposed under sections five, six, twelve, thirteen, fourteen,
seventeen, eighteen and nineteen of this article shall be one and
thirty-0one hundredths percent of gross receipts derived by the
taxpayer from furnishing the services referred to in the
aforesaid sections, and the tax imposed under section sixteen of
this article shall be one and one-half percent of such gross
receipts.
Effective the first day of July, two thousand two, the tax imposed under sections five, six, twelve, thirteen, fourteen,
seventeen, eighteen and nineteen of this article shall be eighty-
seven one hundredths percent of gross receipts derived by the
taxpayer from furnishing the services in this state referred to
in the aforesaid sections, and the tax imposed under section
sixteen of this article shall be one-half percent of such gross
receipts.
Effective the first day of July, two thousand three, the tax
imposed under sections five, six, twelve, thirteen, fourteen,
seventeen, eighteen and nineteen of this article shall be forty-
four one hundredths percent of gross receipts derived by the
taxpayer from furnishing the services in this state referred to
in the aforesaid sections, and the tax imposed under section
sixteen of this article shall be one-half percent of such gross
receipts.
Effective the first day of July, two thousand four, the tax
imposed under sections five, six, twelve, thirteen, fourteen,
sixteen, seventeen, eighteen and nineteen of this article shall
be eliminated.
ARTICLE 7B. MEDICAL PROFESSIONAL LIABILITY.
§55-7B-1. Legislative findings and declaration of purpose.
The Legislature hereby finds and declares that the citizens
of this state are entitled to the best medical care and
facilities available and that health care providers offer an
essential and basic service which requires that the public policy
of this state encourage and facilitate the provision of such
service to our citizens;
That as in every human endeavor the possibility of injury or
death from negligent conduct commands that protection of the
public served by health care providers be recognized as an
important state interest;
That our system of litigation is an essential component of
this state interest in providing adequate and reasonable
compensation to those persons who suffer from injury or death as
a result of professional negligence;
That liability insurance is a key part of our system of
litigation, affording compensation to the injured while
fulfilling the need and fairness of spreading the cost of the
risks of injury;
That a further important component of these protections is
the capacity and willingness of health care providers to monitor
and effectively control their professional competency, so as to
protect the public and insure to the extent possible the highest
quality of care;
That it is the duty and responsibility of the Legislature to
balance the rights of our individual citizens to adequate and
reasonable compensation with the broad public interest in the
provision of services by qualified health care providers who can
themselves obtain the protection of reasonably priced and
extensive liability coverage;
That in recent years, the cost of insurance coverage has
risen dramatically while the nature and extent of coverage has
diminished, leaving the health care providers and the injured
without the full benefit of professional liability insurance
coverage;
That many of the factors and reasons contributing to the
increased cost and diminished availability of professional
liability insurance arise from the historic inability of this
state to effectively and fairly regulate the insurance industry
so as to guarantee our citizens that rates are appropriate, that
purchasers of insurance coverage are not treated arbitrarily, and
that rates reflect the competency and experience of the insured
health care providers.
That in the year two thousand one, the cost of such
liability insurance coverage has again risen dramatically,
particularly so when compared to the cost of similar insurance
coverage in neighboring states, which, together with other costs
and taxation incurred by healthcare providers in this state, has
created a competitive disadvantage in this state compared with
neighboring states. As a result of these occurrences, West
Virginia is placed at a competitive disadvantage with neighboring
states in attracting and retaining quality health care providers
to practice in West Virginia.
That nonbinding arbitration of medical professional
liability claims has been utilized in other states and should be
utilized in this state as an effective procedure to reduce the
cost of resolving such claims;
Therefore, the purpose of this enactment is to provide for
a comprehensive resolution of the matters and factors which the
Legislature finds must be addressed to accomplish the goals set
forth above. In so doing, the Legislature has determined that
reforms in the common law and statutory rights of our citizens to
compensation for injury and death, in the regulation of
ratemaking and other practices by the liability insurance
industry, and in the authority of medical licensing boards to
effectively regulate and discipline the health care providers
under such board must be enacted together as necessary and mutual
ingredients of the appropriate legislative response.
§55-7B-2. Definitions.
(a) "Health care" means any act or treatment performed or
furnished, or which should have been performed or furnished, by
any health care provider for, to or on behalf of a patient during
the patient's medical care, treatment or confinement.
(b) "Health care facility" means any clinic, hospital,
nursing home, or extended care facility in and licensed by the
state of West Virginia and any state operated institution of
clinic providing health care.
(c) "Health care provider" means a person, partnership,
corporation, facility or institution licensed by, or certified
in, this state or another state, to provide health care or
professional health care services, including but not limited to
a physician, osteopathic physician, hospital, dentist, registered
or licensed practical nurse, optometrist, podiatrist,
chiropractor, physical therapist, or psychologist, or an officer,
employee or agent thereof acting in the course and scope of such
officer's, employee's or agent's employment.
(d) "Medical injury" means injury or death arising or
resulting from the rendering or failure to render health care.
(d)(e) "Medical professional liability" means any liability
for damages resulting from the death or injury of a person for
any tort or breach of contract based on health care services
rendered, or which should have been rendered, by a health care
provider or health care facility to a patient.
(e)(f) "Patient" means a natural person who receives or
should have received health care from a licensed health care
provider under a contract, expressed or implied.
(f)(g) "Representative" means the spouse, parent, guardian,
trustee, attorney or other legal agent of another.
(g)(h) "Noneconomic loss" means losses including but not
limited to pain, suffering, mental anguish and grief.
§55-7B-8. Limit on liability for noneconomic loss.
(a) The Legislature finds at the time of reenactment of
this section during the regular session of the Legislature, 2001,
that the maximum amount recoverable as damages for noneconomic
loss in any medical professional liability action brought against
a health care provider allowable in the previous enactment of
this section still serves the purposes for which this section was
previously enacted and should be continued until amended by a
future enactment of the Legislature.
(b) In any medical professional liability action brought
against a health care provider, the maximum amount recoverable as
damages for noneconomic loss shall not exceed on
e million dollars and the jury may be so instructed. In any such action where a
jury returns a verdict for noneconomic damages which exceeds the
maximum amount allowable in this section, the court shall grant
a remittitur and enter a judgment reduced to the maximum amount
permitted by this section.
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) (i) 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 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, within ninety days from the date
of the complaint. 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.
(ii) In lieu of dismissing the claim, the panel chairperson
shall grant an extension of no more than ninety days for filing
the certificate required by this subsection, if:
1. The limitations period applicable to the claim has
expired or will expire within ninety days; and
2. The failure to file the certificate was neither willful
nor the result of gross negligence.
(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 poersonal
service or by certified mail of the time and place of hearing,
not less than thirty days before hearing. Each party shall have
the right to one continuance of the hearing, and thereafter a
party may be granted a continuance of a hearing for good cause
shown.
§55-7B-9h. Arbitration of claim.
(a) Issues to be referred by director to panel chairperson
and panel. -
(1) Except as provided under subdivision (2) of this
subsection, all issues of law shall be referred by the director
to the panel chairperson. All issues of fact shall be referred
by the director to the arbitration panel.
(2) Where a panel chairperson has not been appointed or is
temporarily unable to serve, the director may rule on all issues
of law arising prior to hearing that are not dispositive of the
case and shall include the assessment of costs.
(b) Application of other sections and West Virginia Rules. -
(1) Except for the provisions of the West Virginia Rules of
civil procedure relating to time for the completion of discovery,
the provisions of the West Virginia rules of civil procedure
relating to discovery are applicable to proceedings under this
article. All discovery in any action under this article shall be
completed within two hundred and seventy days from the date on
which all defendants have been served, unless extended by the
panel chairperson for good cause shown.
(2) Properly authenticated hospital records and the records
of treating health care providers are admissible without the
necessity of calling the physician, subject to reasonable notice
and the right of the opposing party to depose.
(c) Chairperson of panel. - The attorney member of the panel
shall be chairperson and shall decide all prehearing procedures
including issues relating to discovery and motions in limine.
The chairperson shall rule in camera on any motion in limine.
(d) Testimony by additional experts. - A party may not
present testimony from more than two experts in a designated
specialty before an arbitration panel unless the panel
chairperson, for good cause shown, permits additional experts.
(e) Determinations. - The arbitration panel shall first
determine the issue of liability with respect to a claim referred
to it. If the arbitration panel determines that the health care
provider is not liable to the claimant or claimants the award
shall be in favor of the health care provider. If the arbitration panel determines that a health care provider is
liable to the claimant or claimants, it shall then consider,
itemize, assess, and apportion appropriate damages against one or
more of the health care providers that it has found to be liable.
The award shall itemize by category and amount any damages
assessed for incurred medical expenses, rehabilitation costs, and
loss of earnings. Damages assessed for any future expenses,
costs, and losses shall be itemized separately.
(f) Assessment of costs; credit for filing fee. -
(1) The award shall include an assessment of costs,
including the arbitrators' fees.
(2) If there is no panel determination, the panel
chairperson shall assess costs.
(3) The party who pays the costs shall receive a credit for
the filing fee the party pays under section nine-c of this
article.
(g) Delivery of award to director; service of copies- The
arbitration panel shall make its award in writing and deliver it
to the director within one year from the date on which all
defendants have been served and within ten days after the close
of the hearing. The director shall cause a copy of the award to
be served on each party within fifteen days of having received it
from the arbitration panel.
(h) Modification or correction of award-
(1) A party may apply to the panel to modify or correct an
award within twenty days after delivery of the award to the
applicant.
(2) A written notice of an application to modify or correct
the award stating the grounds therefor shall be served upon the
opposing party and upon the panel chairperson. The opposing party
shall serve any objection to the application upon the applicant
and the panel chairperson within ten days after being served with
the application.
(3) The panel may modify or correct an award upon any of the
following grounds:
(A) There was an evident miscalculation of figures or an
evident mistake in the description of any person, thing, or
property referred to in the award;
(B) The panel has awarded upon a matter not submitted to
them and the award may be corrected without affecting the merits
of the decision upon the issues submitted;
(C) The award is imperfect in a matter of form, not
affecting the merits of the controversy;
(D) For the purposes of clarity.
(4) The panel shall conduct a hearing upon the application
within thirty days upon receipt of the application and shall give
the parties ten days notice of the hearing. If the correction or
modification of the award prayed for in the application is
granted, the panel shall confirm the award as modified or
corrected. Otherwise, the panel shall confirm the award as made.
(i) Confirmation of award- Subject to the provisions of
subsection (h) of this section and section nine-i of this
article, the award of the arbitration panel shall be final and
binding on the parties. After the time for either correcting,
modifying or rejecting the award has expired the director may,
or, when requested by any party, shall file a copy of the award
with the circuit court having proper venue as designated upon the
filing of the complaint and the court shall confirm the award.
Upon confirmation the award shall constitute a final judgment of
the court.
§55-7B-9i. Judicial review.
(a) Rejection of award or assessment of costs. - A party may
reject an award for any reason. A notice of rejection must be
filed with the director and the arbitration panel and served on
the other parties or their counsel within thirty days after the
award is served upon the rejecting party, or, if a timely
application for modification or correction has been filed, within
ten days after a disposition of the application by the panel,
whichever is greater.
(b) Upon expiration of the time to file a notice of
rejection of the award provided in subsection (a) of this section
and no notice has been filed, the arbitration award shall be
final and binding upon all parties and upon confirmation pursuant
to subdivision (i) of section nine-h of this article is an award
enforceable and subject to the provisions of article ten of this
chapter.
(c) Commencement of action after rejection of award-
(1) Within ninety days after a rejection of the award has
been filed by a party pursuant to subdivision (a) of this
section, or prior to the running of the applicable statute of
limitation, whichever is greater, the claimant may file an action
upon the claim as if the arbitration had not occurred.
(2) The trial date for an action commenced pursuant to this
subsection shall have precedence over all cases except criminal
matters and any other matters given priority by statute or by
state court rules.
(3) The clerk of the court in which an action is filed under
this subsection shall forward a copy of the action to the state licensing board of any physician named as a party defendant
therein.
(d) Nonadmissibility of award: - The arbitration award is
not admissible as evidence in the judicial proceeding for any
purpose.
(e) Admissibility of depositions from arbitration
proceedings. -
(1) Depositions taken in the arbitration proceedings shall
be as fully admissible as if noticed in court proceedings.
Interrogatories and requests for admissions and production of
documents in the arbitration proceedings remain binding in the
court proceedings, subject to a duty of supplementation.
(2) The provisions of subdivision (1) of this subsection do
not affect any rights to discovery on appeal.
(f) Itemization of certain damages; remittitur. - Upon
timely request, the trier of fact shall by special verdict or
specific findings itemize by category and amount any damages
assessed for incurred medical expenses, rehabilitation costs, and
loss of earnings. Damages assessed for any future expenses,
costs, and losses shall be itemized separately. If the verdict
or findings include any amount for such expenses, costs, and
losses, a party may filing a motion within the time limits for
filing a motion for a new trial may object to the damages as
excessive on the ground that the award for noneconomic damages
exceeds the amount allowable pursuant to section eight of this
article. The court shall hold a hearing on the objection. If
the court finds that the damages are excessive on such grounds ,
it shall grant a remittitur of the excess. Nothing in this
subsection shall be construed to otherwise limit any other
grounds for a motion for a new trial by any party.
(g) Assessment of costs. - If the verdict of the trier of
fact is not more favorable to the party that rejected the
arbitration panel's award, than was the award, the costs of the
judicial proceedings shall be assessed against the rejecting
party. Otherwise, the court shall determine the assessment of
such costs in accordance with the law and the West Virginia rules
of civil procedure. If the court vacates an assessment of
arbitration costs, it shall reassess those costs as justice
requires.
(h) Venue. - Venue shall be determined in the same manner as
is determined in all other civil actions.
(i) Filing copy of verdict or other final disposition with
director. - The clerk of the court shall file a copy of the verdict or any other final disposition with the director.
§55-7B-9j. Waiver of arbitration before claim heard.
(a) In general. - At any time before the hearing of a claim
with the health claims arbitration office, the parties may agree
mutually to waive arbitration of the claim, and the provisions of
this section then shall govern all further proceedings on the
claim.
(b) Written election. -
(1) The claimant shall file with the director a written
election to waive arbitration which must be signed by all parties
or their attorneys of record in the arbitration proceeding.
(2) After filing, the written election shall be mutually
binding upon all parties.
(c) Filing of election complaint. -
(1) Within sixty days after filing the election to waive
arbitration, the plaintiff shall file a complaint and a copy of
the election to waive arbitration with the circuit court or
United States District Court.
(2) After filing the complaint, the plaintiff shall serve a
summons and a copy of the complaint upon the attorney of record
for all parties in the health claims arbitration proceeding.
(3) Failure to file a complaint within sixty days of filing
the election to waive arbitration may constitute grounds for
dismissal of the complaint upon motion by an adverse party and
upon a finding of prejudice to that party due to the delay in the
filing of the complaint.
(d) Additional defendants must join in waiver. - After
filing the election to waive arbitration, the plaintiff may not
join an additional health care provider as a defendant in any
action brought under subsection (c) of this section unless a
written election to waive arbitration has been filed by that
health care provider under subsection (b) of this section.
(e) Procedure. - In any case subject to this section, the
procedures of subsection (f), section nine-i of this article
shall apply.
(f) Neutral case evaluation. -
(1) If the parties mutually agree to a neutral case
evaluation, the circuit court or United States District Court, to
which the case has been transferred after the waiver of
arbitration, may refer the case to the health claims arbitration
office not later than six months after a complaint is filed under
subsection (c) of this section.
(2) On receipt of the case, the director shall send to the
parties a list of six attorneys who meet the qualifications listed in subsection (b), section nine-c of this article and have
tried at least three health care malpractice cases.
Each party may strike two names from the list. If the claim
is against more than one health care provider, whether directly
by a claimant or as a result of a third-party claim, the health
care providers claimed against shall be treated as a single party
and shall exercise their strikes jointly. If there is more than
one claimant, the claimants shall be treated as a single party
and shall exercise their strikes jointly. If multiple claimants
or multiple health care providers fail to agree on their strikes
or fail to return their strike list to the director within the
time specified in this subdivision, the director shall make the
strikes on their behalf. The strikes shall be submitted to the
director within ten days after delivery of the list. The director
shall appoint an evaluator from the unstricken names on the list.
(3) Upon appointment, the evaluator shall schedule a neutral
case evaluation session to be held within forty-five days after
the appointment to pursue the neutral case evaluation of the
claim or to resolve any issues to which the parties agree to
stipulate before trial.
(4) Within ten days after the neutral case evaluation
session, the evaluator shall notify, in writing, the director and
the circuit court or United States District Court of the results
of the neutral case evaluation.
(5) During the neutral case evaluation period, the circuit
court or United States District Court shall continue to have
jurisdiction to rule on any motions or discovery matters. The
neutral case evaluation may not interfere with the scheduled
trial.
(6) The evaluator shall be paid in accordance with fees set
by the director in subsection (c), section nine-c of this
article. Unless otherwise agreed by the parties, the cost of
neutral case evaluation, which may not exceed three hundred
dollars per case, shall be divided equally between the parties.
(g) Applicability. - The provisions of this section apply
only if no party waives arbitration of the claim under the
provisions of section nine-k of this article.
§55-7B-9k. Waiver of arbitration after filing certificate of
qualified expert.
(a) In general. - Arbitration of a claim with the health
claims arbitration office may be waived by the claimant or any
defendant in accordance with this section, and the provisions of
this section shall govern all further proceedings on any claim for which arbitration has been waived under this section.
(b) Waiver by claimant. -
(1) Subject to the time limitation under subsection (d) of
this section, any claimant may waive arbitration at any time
after filing the certificate of qualified expert required by
subsection (c), section nine-e of this article by filing with the
director a written election to waive arbitration signed by the
claimant or the claimant's attorney of record in the arbitration
proceeding.
(2) The claimant shall serve the written election on all
other parties to the claim in accordance with the West Virginia
rules of civil procedure.
(3) If the claimant waives arbitration under this
subsection, all defendants shall comply with the requirements of
subsection (c), section nine-e of this article by filing their
certificates at the health claims arbitration office, after the
election, in the appropriate circuit court or United States
District Court.
(c) Waiver by defendant. -
(1) Subject to the time limitation under subsection (d) of
this section, any defendant may waive arbitration at any time
after the claimant has filed the certificate of qualified expert
required by subsection (c), section nine-e of this article by
filing with the director a written election to waive arbitration
signed by the defendant or the defendant's attorney of record in
the arbitration proceeding.
(2) The defendant shall serve the written election on all
other parties to the claim in accordance with the West Virginia
rules of civil procedure.
(3) If a defendant waives arbitration under this subsection,
the defendant shall comply with the requirements of subsection
(c), section nine-e of this article by filing the certificate at
the health claims arbitration office, or, after the election, in
the appropriate circuit court or United States District Court.
(d) Time for filing. -
(1) A waiver of arbitration by any party under this section
may be filed not later than sixty days after all defendants have
filed a certificate of qualified expert under subsection (c),
section nine-e of this article.
(2) Any waiver of arbitration after the date specified in
subdivision (1) of this subsection shall be in accordance with
the provisions of section nine-j of this article.
(e) Effect of election. - After filing, the written election shall be binding upon all parties.
(f) Filing of complaint; service; dismissal. -
(1) Within sixty days after the filing of an election to
waive arbitration by any party, the plaintiff shall file a
complaint and a copy of the election to waive arbitration in the
appropriate circuit court or the United States District Court.
(2) After filing the complaint, the plaintiff shall serve a
summons and a copy of the complaint upon all defendants or the
attorney of record for all parties in the health claims
arbitration proceeding.
(3) Failure to file a complaint within sixty days of filing
the election to waive arbitration may constitute grounds for
dismissal of the complaint upon a motion by an adverse party and
upon a finding of prejudice to the adverse party due to the delay
in the filing of the complaint.
(g) Joinder of additional health care providers. - After the
filing of an election to waive arbitration under this section, if
a party joins an additional health care provider as a defendant
in an action, the party shall file a certificate of qualified
expert required by subsection (c), section nine-e of this article
with respect to the additional health care provider.
(h) Procedure. - In any case subject to this section, the
procedures of subsection (f), section nine-i of this article
shall apply.
(i) Neutral case evaluation. -
(1) If the parties mutually agree to a neutral case
evaluation, the circuit court or United States District Court, to
which the case has been transferred after the waiver of
arbitration, may refer the case to the health claims arbitration
office not later than six months after a complaint is filed under
subsection (c) of this section. On receipt of the case, the
director shall send to the parties a list of six attorneys who
meet the qualifications listed in subsection (b), section nine-c
of this article and have tried at least three health care
malpractice cases.
(2) Each party may strike two names from the list. The
strikes shall be submitted to the director within ten days after
delivery of the list. If the claim is against more than one
health care provider, whether directly by a claimant or as a
result of a third-party claim, the health care providers claimed
against shall be treated as a single party and shall exercise
their strikes jointly. If there is more than one claimant, the
claimants shall be treated as a single party and shall exercise
their strikes jointly. If multiple claimants or multiple health care providers fail to agree on their strikes or fail to return
their strike list to the director within the time specified in
this subdivision, the director shall make the strikes on their
behalf. Upon receipt of the lists from the parties after the
parties have made their strikes, the director shall appoint an
evaluator from the unstricken names on the list.
(3) Upon appointment, the evaluator shall schedule a neutral
case evaluation session to be held within forty-five days after
the appointment to pursue the neutral case evaluation of the
claim or to resolve any issues to which the parties agree to
stipulate before trial.
(4) Within ten days after the neutral case evaluation
session, the evaluator shall notify, in writing, the director and
the circuit court or United States District Court of the results
of the neutral case evaluation.
(5) During the neutral case evaluation period, the circuit
court or the United States District Court shall continue to have
jurisdiction to rule on any motions or discovery matters. The
neutral case evaluation may not interfere with the scheduled
trial.
(6) The evaluator shall be paid in accordance with fees for
arbitrators determined pursuant to subsection (c), section nine-c
of this article. Unless otherwise agreed by the parties, the cost
of neutral case evaluation, which may not exceed $300 per case,
shall be divided equally between the parties.
NOTE: The purpose of this bill is to provide incentives for
the retention of certain health care providers in this state, to
be known as the "West Virginia Medical Access Enhancement Act".
The bill (1) Phases out over a three year period the health care
provider tax on gross receipts of services performed in this
state by chiropractors, dentists, nurses, opticians,
optometrists, physicians, podiatrists, psychologists and
therapists; (2) Reaffirms the intent of the legislature in
maintaining the cap on noneconomic damages allowed in medical
professional liability actions at one million dollars; and (3)
Provides a 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 $75,000.00.
Strike-throughs indicate language that would be stricken
from the present law, and underscoring indicates new language
that would be added.
Section thirty-six, article twenty-seven, chapter eleven and sections nine-a through nine-k, article seven-b, chapter fifty-
five are new; therefore, strike-throughs and underscoring are
omitted.