Senate Bill No. 630

(By Senator McKenzie, Bowman and Sprouse)

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[Introduced February 18, 2002; referred to the Committee

on the Judiciary.]

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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 changing the standard of care in medical professional liability cases to conform with practice guidelines established for that medical specialty and/or clinical situation; and authorizing the board of medicine to establish practice guidelines for applicable standards of care within particular medical specialties and/or in particular clinical situations in medical professional liability claims.

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; practice guidelines.

(a) The applicable standard of care and a defendant's failure to meet said 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 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 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 expert maintains a current license to practice medicine in one of the states of the United States; and (e) (5) such expert is engaged or qualified in the same or substantially similar medical field as the defendant health care provider.
(b) Beginning on the first day of January, two thousand three, the applicable standard of care in medical professional liability cases shall be the applicable practice guideline for that medical specialty and/or clinical situation in question: Provided, That practice guidelines have been established for that medical speciality and/or clinical situation in question by the West Virginia board of medicine, otherwise the applicable standard of care as described in subsection (a) of this section shall apply.
(c) The West Virginia board of medicine is hereby directed to establish a committee or committees to establish practice guidelines of applicable standards of care within particular medical specialties and in particular clinical situations. The committee or committees establishing practice guidelines of applicable standards of care within particular medical specialties and in particular clinical situations must include, but not be limited to: (1) One physician who is licensed in any state in the United States; (2) one physician involved in the active practice of medicine in the particular medical specialty in question and is licensed to practice medicine in that particular specialty by a state of the United States; (3) one physician who is licensed to practice medicine in the particular field of medicine in question in the state of West Virginia; (4) one person, not a physician, representing interests of payors of medical costs; and (5) one person, not a physician, who represents the interests of consumers.
 The board, may propose rules for legislative approval in accordance with the provisions article three of chapter twenty-nine-a of this code in order to implement this section.
(d) The practice guidelines must define appropriate clinical indications and methods of treatment within that specialty of medicine. The practice guidelines must be consistent with appropriate standards of care and levels of quality. The practice guidelines must state, with reasonable certainty, the standard of care to which a reasonable physician practicing in the medical specialty in question, performing in the same or similar circumstances, should be held.
(e) (1) Introduction by the defendant.-- In any claim for medical professional liability against a physician who has, prior to the performing of the particular services in question, elected to comply with the standard of care as it is reflected in an accepted practice guideline, developed by the board of medicine, the physician may introduce into evidence, as an affirmative defense, the existence of the accepted practice guideline with which the physician allegedly complied.
(2) Introduction by the plaintiff.-- In any claim for medical professional liability against a physician who has, prior to the performing of the particular services in question, elected to comply with the standard of care as it is reflected in an accepted practice guideline, developed by the board of medicine, the plaintiff may introduce into evidence, as evidence of the standard of care, the existence of the accepted practice guideline with which the physician allegedly did not comply.
(3) Burden of proof.-- Any physician who pleads compliance with an accepted practice guideline as an affirmative defense to a claim of medical professional liability has the burden of proving that the physician's conduct was consistent with the practice guidelines in order to rely upon the affirmative defense as the basis for a determination that the physician's conduct did not constitute medical professional negligence. If the plaintiff introduces into evidence an accepted practice guideline, the plaintiff has the burden of proving that the physician's conduct did not comply with the particular accepted guideline in question in order to raise a rebuttable presumption that the physician did not meet the applicable standard of care and is, therefore, liable for medical professional negligence.
(4) Nothing in this section alters the burdens of proof in medical professional liability proceedings.



NOTE: The purpose of this bill is to change the applicable standard of care for medical professional liability claims to conform with practice guidelines and to authorize the West Virginia board of medicine to establish committees to establish practice guidelines for particular medical specialties and/or in particular clinical situations.

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