Senate Bill No. 613

(By Senators Kessler, Bowman, Edgell and McKenzie)

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[Introduced March 26, 2001; referred to the Committee on the Judiciary.]

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A BILL to amend and reenact section six, article seven-b, chapter fifty-five of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to pretrial procedures in medical professional liability actions; including the requirement of submitting "certificate of merit" of such actions within one hundred twenty days of filing the action; requiring mandatory mediation before trial; and permitting binding arbitration in certain situations.

Be it enacted by the Legislature of West Virginia:
That section six, 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-6. Pretrial procedures.

(a) In each medical professional liability action against a health care provider, within one hundred twenty days after service of the complaint for an action against a health care provider there must be submitted on behalf of the plaintiff a certificate of merit executed by a physician or other health care provider licensed to practice in the state of West Virginia or other jurisdiction that indicates that the actions complained of against the health care provider, are those set out in section three of this article, and not less than nine nor more than twelve months following the filing of answer by all defendants, a mandatory status conference shall be held at which, in addition to any matters otherwise required, the parties shall:
(1) Inform the court as to the status of the action, particularly as to the identification of contested facts and issues and the progress of discovery and the period of time for, and nature of, anticipated discovery; and
(2) On behalf of the plaintiff, certify to the court that either an expert witness has or will be retained to testify on behalf of the plaintiff as to the applicable standard of care or that under the alleged facts of the action, no expert witness will be required. If the court determines that expert testimony will be required, the court shall provide a reasonable period of time for obtaining an expert witness and the action shall may not be scheduled for trial, unless the defendant agrees otherwise, until such that period has concluded. It shall be is the duty of the defendant to schedule such the conference with the court upon proper notice to the plaintiff.
(b) In the event that If the court determines prior to trial that either party is presenting or relying upon a frivolous or dilatory claim or defense, for which there is no reasonable basis in fact or at law, the court may direct in any final judgment the payment to the prevailing party of reasonable litigation expenses, including deposition and subpoena expenses, travel expenses incurred by the party, and such other expenses necessary to the maintenance of the action, excluding attorney's fees and expenses.
(c) If the court determines that the plaintiff has established a reasonable basis for which to proceed with the trial of the claim, the parties must engage in mediation of the claim before the trial.
(d) If the plaintiff files a stipulation with the court prior to trial that the total value sought in the plaintiff's claim for damages, including noneconomic loss, does not exceed two hundred thousand dollars, then the plaintiff may submit the claim against the physician or health care provider to binding arbitration in lieu of trial, with the costs of arbitration to be shared equally by the parties. The plaintiff and physician or health care provider are limited to two medical expert witnesses in any arbitration hearing.


NOTE: The purpose of this bill is to modify the pretrial procedures in medical professional liability actions by including the requirement of having the plaintiff submit a "certificate of merit" of such actions within one hundred twenty days of service of the complaint, signed by a physician licensed to practice in West Virginia; and requiring mandatory mediation before trial; and permitting binding arbitration in certain situations.

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