H. B. 4455


(By Delegates Armstead, Harrison and Trump)

[Introduced February 11, 2002; referred to the

Committee on the Judiciary.]
A BILL to amend and reenact sections two and nine, article seven-b, chapter fifty-five of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to further amend said article by adding thereto two new sections, designated sections eight-a and eight-b, all relating to medical professional liability; defining the terms "collateral source" and "collateral source payments"; providing for the reduction of judgment awards in medical professional liability actions of certain collateral source payments made or to be made to the plaintiff; providing for postverdict determination of reduction of compensatory damages; eliminating joint, but not several, liability among multiple defendants in medical professional liability actions.

Be it enacted by the Legislature of West Virginia:
That sections two and nine, article seven-b, chapter fifty-five of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; and that said article be further amended by adding thereto two new sections, designated sections eight-a and eight-b, all to read as follows:
ARTICLE 7B. MEDICAL PROFESSIONAL LIABILITY.
 §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 or 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 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) "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) "Representative" means the spouse, parent, guardian, trustee, attorney or other legal agent of another.
(g) "Noneconomic loss" means losses including, but not limited to, pain, suffering, mental anguish and grief.
(h) "Collateral source" means: (1) The United States Social Security Act, as amended; (2) any state or federal disability, workers' compensation, or other act designed to provide income replacement, medical or other benefits; (3) any accident, health or sickness, income or wage replacement insurance, income disability insurance, casualty or property insurance (including automobile and homeowners' insurance), or any other insurance except life insurance; (4) any contract or agreement of any group, organization, partnership or corporation to provide, pay for, or reimburse the cost of medical, hospital, dental or other health care services or provide similar benefits; or (5) any contractual or voluntary wage continuation plan provided by an employer or otherwise, or any other system intended to provide wages during a period of disability.
(i) "Collateral source payments" means money paid or payable by collateral sources for losses or expenses, including, but not limited to, property damage, wage loss, medical costs, rehabilitation costs, services, and other costs incurred by or on behalf of a plaintiff for which that plaintiff is claiming recovery through a tort action commenced in any of the courts in this state.
§55-7B-8a. Reduction in compensatory damages for collateral source payments.

Notwithstanding any other provision of this code, in all medical professional liability actions, regardless of the theory of liability under which they are commenced, the total amount of compensatory damages awarded to a plaintiff under such action shall be reduced, in accordance with section eight-b of this article, by any collateral source payments made or to be made to the plaintiff, except insurance for which the plaintiff, spouse of the plaintiff, or parent of the plaintiff, has paid a premium, insurance that is subject to a right of subrogation, workers' compensation benefits that are subject to a right of subrogation, or insurance that has any other obligation of repayment.
§55-7B-8b. Postverdict determination of reduction in compensatory damages.

The reduction in compensatory damages required under section eight-a of this article shall be determined by the court after the verdict and before judgment is entered. Reduction may be made only if the collateral source payments are compensation for the same damages for which recovery is sought in the action. A plaintiff who has received or is to receive collateral source payments may introduce evidence before the court, but not at trial, of any of the following: (a) Any amount which the plaintiff has paid or contributed to secure his or her right to any such collateral source payments; (b) that any recovery by the plaintiff is subject to a lien by a collateral source; (c) that a provider of such collateral source payments has a statutory right of recovery against the plaintiff for reimbursement of such payments; or (d) that the provider of such collateral source payments has a right of subrogation to the rights of the plaintiff.
After considering the evidence of collateral source introduced by any party, the court shall make a determination as to the amount by which a plaintiff's compensatory damages will be reduced by any such collateral source payment.
§55-7B-9. Joint and several liability.

(a) In the trial of a medical professional liability action against a health care provider involving multiple defendants, the jury shall be required to report its findings to the court on a form provided by the court which contains each of the possible verdicts as determined by the court.
(b) In every medical professional liability action, the court shall make findings as to the total dollar amount awarded as damages to each plaintiff. The court shall may not enter judgement of joint and several liability against every any defendant. which bears twenty-five percent or more of the negligence attributable to all defendants. The court shall enter judgment of several, but not joint, liability against and among all defendants which bear less than twenty-five percent of the negligence attributable to all defendants in accordance with the percentage of negligence attributable to each defendant.
(c) Each defendant against whom a judgement of joint and several liability is entered in a medical professional liability action pursuant to subsection (b) of this section is liable to each plaintiff for all or any part of the total dollar amount awarded regardless of the percentage of negligence attributable to him. A right of contribution exists in favor of each defendant who has paid to a plaintiff more than the percentage of the total dollar amount awarded attributable to him relative to the percentage of negligence attributable to him. The total amount of recovery for contribution is limited to the amount paid by the defendant to a plaintiff in excess of the percentage of the total dollar amount awarded attributable to him relative to the percentage of negligence attributable to him. No right of contribution exists against any defendant who entered in to a good faith settlement with the plaintiff prior to the jury's report of its findings to the court or the court's findings as to the total dollar amount awarded as damages.
(d) Where a right of contribution exists in a medical professional liability action pursuant to subsection (c) of this section, the findings of the court or jury as to the percentage of negligence and liability of the several defendants to the plaintiff shall be binding among such defendants as determining their rights of contribution.

Note: The purpose of this bill is to provide that judgment awards in medical professional liability actions be reduced by the amount of certain collateral source benefits received by the claimant or to which the claimant is entitled. The bill also eliminates joint, but not several liability among multiple defendants in actions for medical professional liability.

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

Sections 55-7B-8a and 55-7B-8b are new; therefore, strike-throughs and underscoring have been omitted.