ENGROSSED
COMMITTEE SUBSTITUTE
FOR
H. B. 2122
(By Mr. Speaker, Mr. Kiss, and Delegate Trump)
[By Request of the Executive]
(Originating in the Committee on the Judiciary)
[January 14, 2003]
A BILL to amend chapter eleven of the code of West Virginia, one
thousand nine hundred thirty-one, as amended, by adding
thereto a new article, designated article thirteen-t; to amend
chapter twenty-nine of said code by adding thereto a new
article, designated article twelve-c; to amend and reenact
section fourteen, article three, chapter thirty of said code;
to amend and reenact section twelve-a, article fourteen of
said chapter thirty; to amend and reenact section four,
article ten, chapter thirty-eight of said code; to amend and
reenact sections one, two, three, six, seven, eight, nine,
ten, and eleven, article seven-b, chapter fifty-five of said
code; and to further amend said article by adding thereto five
new sections, designated sections twelve through sixteen, all
relating to medical professional liability generally;
providing a personal income tax credit for physicians care providers based upon payment of medical malpractice liability;
setting forth legislative findings and purpose; defining
terms; creating tax credit and providing eligibility;
establishing amount of credit; providing for forfeiture of
excess credit; providing for the application of the credit;
specifying effect of credit on computation of estimated taxes;
providing for the computation and application of credit;
authorizing tax commissioner to promulgate legislative rules;
establishing burden of proof relating to claiming the credit;
establishing effective date for credit; providing for
termination of tax credit; establishing a special fund to
compensate certain patients for uncollectible injury awards;
creating board to propose funding mechanism; establishing
term, authority and directives of the board; conditionally
authorizing the board of risk and insurance management to
promulgate legislative and emergency rules; directing the two
thousand four Legislature to implement funding proposal;
establishing patient injury compensation fund; providing for
distribution and eligibility for moneys of the fund; requiring
the board of medicine and the board of osteopathy to take
certain disciplinary actions against physicians and surgeons
in certain circumstances; increasing exemption available to
certain physician and surgeon debtors in bankruptcy
proceedings; providing additional legislative findings and purposes relating to medical professional liability; providing
definitions; adding an element of proof in certain malpractice
claims; altering notice requirements for malpractice claims;
modifying the qualifications for experts who testify in
medical professional liability actions; limiting liability for
certain noneconomic loss; providing a reversion provision;
providing for severability; eliminating joint, but not several
liability among multiple defendants in medical professional
liability actions; requiring consideration of certain third
parties in malpractice cases; reduction in damage awards for
certain collateral source payments to plaintiffs; providing
mechanism for determining collateral source payments and
damages distribution; requiring periodic payment of damages
for certain medical malpractice awards; providing for
calculation methodology for determining award payments;
providing for limitations against health care providers for
certain third party claims; limiting civil liability for
trauma care; directing the office of emergency medical
services to designate hospitals as trauma centers; placing
limitations on eligibility for trauma care caps; authorizing
the commissioner of the bureau for public health to designate
certain hospitals as trauma centers; authorizing the secretary
of the department of health and human resources to promulgate
legislative and emergency rules; providing method for calculating certain contingent fee payments; and establishing
effective date.
Be it enacted by the Legislature of West Virginia:
That chapter eleven of the code of West Virginia, one thousand
nine hundred thirty-one, as amended, be amended by adding thereto
a new article, designated article thirteen-t; that chapter twenty-
nine of said code be amended by adding thereto a new article,
designated article twelve-c; that section fourteen, article three,
chapter thirty of said code be amended and reenacted; that section
twelve-a, article fourteen, of said chapter thirty be amended and
reenacted; that section four, article ten, chapter thirty-eight of
said code be amended and reenacted; that sections one, two, three,
six, seven, eight, nine, ten, and eleven of article seven-b,
chapter fifty-five of said code be amended and reenacted; and that
said article seven-b be further amended by adding thereto four new
sections, designated sections twelve through sixteen, all to read
as follows:
CHAPTER 11. TAXATION.
ARTICLE 13T.TAX CREDIT FOR MEDICAL LIABILITY INSURANCE
PREMIUMS.
§11-13T-1. Legislative finding and purpose.
The Legislature finds that the retention of physicians
practicing in this state is in the public interest and promotes the
general welfare of the people of this state. The Legislature further finds that the promotion of stable and affordable medical
malpractice liability insurance premium rates will induce retention
of physicians practicing in this state.
In order to effectively decrease the cost of medical liability
insurance premiums paid in this state on physicians' services,
there is hereby provided a tax credit for certain medical liability
insurance premiums paid.
§11-13T-2. Definitions.
(a) General. - When used in this article, or in the
administration of this article, terms defined in subsection (b) of
this section have the meanings ascribed to them by this section,
unless a different meaning is clearly required by the context in
which the term is used.
(b) Terms defined. -
(1)"Adjusted annual medical liability premium" means statewide
average of medical liability insurance premiums by specialty and
sub-specialty groups directly paid by the eligible taxpayer during
the taxable year to cover physicians' services performed during the
year reduced by the sum of ten thousand dollars per physician
covered by the medical liability insurance policy or policies for
which the premiums are paid.
(2) "Eligible taxpayer" means any person
engaging or
continuing within this state in the business of providing
physicians' services
.
(3) "Person" means and includes any natural person,
corporation, limited liability company, trust or partnership.
(4) "Physicians' services" means health care providers
services performed in this state by physicians licensed by the
state board of medicine or the state board of osteopathic medicine.
(5) "Statewide average medical liability insurance premiums"
are the average of premiums for each specialty and sub-specialty
group as determined by the state insurance commission.
§11-13T-3. Eligibility for tax credits; creation of the credit.
There shall be allowed to every eligible taxpayer a credit
against the taxes imposed by article twenty-one of this chapter.
The amount of this credit shall be determined and applied as
provided in this article.
§11-13T-4. Amount of credit allowed.
The amount of annual credit allowable under this article to an
eligible taxpayer shall be equal to twenty percent of the adjusted
annual medical liability insurance premium.
§11-13T-5. Excess credit forfeited.
If after application of the credit against tax under this
article, any credit remains for the taxable year, the amount
remaining and not used is forfeited. Unused credit may not be
carried back to any prior taxable year and shall not carry forward
to any subsequent taxable year.
§11-13T-6. Application of credit; schedules; estimated taxes.
(a) To assert this credit against tax, the eligible taxpayer
shall prepare and file with its annual tax return filed under
article twenty-one of this chapter, a schedule showing the amount
paid for medical liability coverage for the taxable year, the
amount of credit allowed under this article, the taxes against
which the credit is being applied and other information that the
tax commissioner may require. This annual schedule shall set forth
the information and be in the form prescribed by the tax
commissioner.
(b) An eligible taxpayer may consider the amount of credit
allowed under this article when determining the eligible taxpayer's
liability under article twenty-one of this chapter for periodic
payments of estimated tax for the taxable year, in accordance with
the procedures and requirements prescribed by the tax commissioner.
The annual total tax liability and total tax credit allowed under
this article are subject to adjustment and reconciliation pursuant
to the filing of the annual schedule required by subsection (b) of
this section.
§ 11-13T-7. Computation and application of credit.
(a) Computation of credit resulting from premiums directly
paid by individual physicians or by small business corporations,
partnerships, and limited liability companies; application of
credit.
Application of annual credit allowable. - The annual credit
allowable under this article for eligible taxpayers other than
payors described in subsection (b) of this section, shall be
applied as a credit against the eligible taxpayer's income tax
liability imposed by article twenty-one of this chapter.
The annual credit allowable shall be applied to reduce the
eligible taxpayer's annual income tax liability imposed by article
twenty-one of this chapter, determined after application of
allowable credits and exemptions.
(1) If the eligible taxpayer is an electing small business
corporation (as defined in Section 1361 of the United States
Internal Revenue Code of 1986, as amended), a partnership, or a
limited liability company treated as a partnership for federal
income tax purposes, then the credit allowed by this article shall
be applied as a credit against the taxes imposed by article twenty-
one of this chapter on the income flowing through the eligible
taxpayer to shareholders, partners or members of the eligible
taxpayer and shall be allocated under this subsection among the
eligible taxpayer's shareholders, partners or members in the same
manner as profits and losses are allocated for the taxable year. In
the case of shareholders, owners, partners or members of the
eligible taxpayer that are not subject to the taxes imposed by
article twenty-one of this chapter, no credit shall be allowed against tax on income flowing through those shareholders, owners,
partners or members to any other person.
(2) No credit shall be allowed under this section against any
employer withholding taxes imposed by article twenty-one of this
chapter.
(b) Computation of credit for premiums directly paid by
partners, members or shareholders of partnerships, limited
liability companies, or corporations for or on behalf of such
organizations; application of credit.
(1) Qualification for credit.--
(A) For purposes of this section the term "eligible taxpayer
organization" means a partnership, limited liability company, or
corporation that is an eligible taxpayer.
(B) For purposes of this section the term "payor" means a
natural person who is a partner, member, shareholder or owner, in
whole or in part, of an eligible taxpayer organization and who pays
medical liability insurance premiums for or on behalf of the
eligible taxpayer organization.
(C) Medical liability insurance premiums paid by a payor (as
defined in this section) qualify for tax credit under this article,
provided that such payments are made to insure against medical
liabilities arising out of or resulting from physicians' services
provided by a physician while practicing in service to or under the
organizational identity of such eligible taxpayer organization or as an employee of such eligible taxpayer organization, and where
such insurance covers the medical liability of:
(i) The eligible taxpayer organization; or
(ii) One or more physicians practicing in service to or under
the organizational identity of the eligible taxpayer organization
or as an employee of the eligible taxpayer organization; or
(iii) Any combination thereof.
(2) Application of credit by the payor against personal income
tax. - The annual credit allowable under this subsection shall be
applied to reduce the payor's annual income tax liability imposed
by article twenty-one of this chapter (determined after application
of allowable credits and exemptions) on income flowing through the
eligible taxpayer organization to the payor that is directly
attributable to the business operations of the eligible taxpayer
organization. No credit shall be allowed under this section against
any employer withholding taxes imposed by article twenty-one of
this chapter.
(3) Apportionment among multiple eligible taxpayer
organizations. - Where a payor described in subdivision (1) of this
subsection pays medical liability insurance premiums for and
provides services to or under the organizational identity of two or
more eligible taxpayer organizations described in this section or
as an employee of two or more such eligible taxpayer organizations,
the tax credit shall, for purposes of subdivision (2) of this subsection, be allocated among such eligible taxpayer organizations
in proportion to the medical liability insurance premiums paid
directly by the payor during the taxable year to cover physicians'
services during such year for, or on behalf of, each eligible
taxpayer organization. In no event may the total credit claimed by
all eligible taxpayers and eligible taxpayer organizations exceed
the credit which would be allowable if the payor had paid all such
medical liability insurance premiums for or on behalf of one
eligible taxpayer organization, and if all physician's services had
been performed for, or under the organizational identity of, or by
employees of, one eligible taxpayer organization.
§11-13T-8. Legislative rules.
The tax commissioner may propose for promulgation pursuant to
the provisions of article three, chapter twenty-nine-a of this code
such rules as may be necessary to carry out the purposes of this
article.
§11-13T-9. Construction of article; burden of proof.
The provisions of this article shall be reasonably construed.
The burden of proof is on the person claiming the credit allowed by
this article to establish by clear and convincing evidence that the
person is entitled to the amount of credit asserted for the taxable
year.
§11-13T-10. Effective date of credit.
The credit allowed under this article is allowed for the
taxable year ending the thirty-first day of December, two thousand
two.
§11-13T-11. Termination of tax credit.
No credit shall be allowed under this article for any taxable
year ending after the thirty-first day of December, two thousand
four.
CHAPTER 29. MISCELLANEOUS BOARDS & OFFICERS.
ARTICLE 12C. Patient injury compensation plan.
§29-12C-1. Patient injury compensation plan study board created;
purpose; study of creation and funding of patient injury
compensation fund; developing rules and establishing program;
and report to the Legislature.
(a) There is hereby created a patient injury compensation plan
study board. The purpose of the board is to propose and implement
a patient compensation fund to reimburse patients for that portion
of their economic damages of a medical malpractice claim which are
uncollectible due to statutory limitations on damage awards for
trauma care and the elimination of joint and several liability that
limit damages exposure of tortfeasor health care providers and
health care facilities. The board shall exist for the sole purpose
of conducting a study and establishing the program and the
promulgation of legislative rules following authorization by the
Legislature pursuant to subsection (c) of this section. Upon completion of these duties the board is dissolved and the
provisions of this section relating to the board expire and the
program and its enforcement and administration as herein
established are transferred to and are to be administered by the
board of risk and insurance management.
(b) The patient injury compensation fund study board consists
of the director of the board of risk and insurance management who
shall serve as chair of the board, the insurance commissioner, and
an appointee of the governor. The board shall utilize the
resources of their respective offices to assist in undertaking the
study and initial promulgation of legislative rules as provided by
this article. The board shall meet upon the call of the chair.
A simple majority of the members shall constitute a quorum for the
transaction of board business.
(c) The board's report and recommendations shall be completed
no later than the first day of December, two thousand three. The
board shall provide and present the report to the joint committee
on government and finance during the interim meetings of the
Legislature of December, two thousand three. Upon enactment by the
Legislature during the two thousand four regular legislative
session of a statute authorizing the board's proposal as created
herein, the board of risk and insurance management shall promulgate
emergency and legislative rules implementing the funding mechanism
recommended by the patient injury compensation study board to fully and properly fund the patient compensation fund. The Legislature
declares that upon enactment by the Legislature of the boards
funding proposal, an emergency exists compelling promulgation of
an emergency rule.
(d) The board is authorized to hold hearings, conduct
investigations and consider without limitation, all options for
funding of the patient injury compensation fund. The board shall
select a funding mechanism as the board deemed appropriate.
29-12C-2. Legislative rules.
Within thirty days of enactment of the board's proposal
pursuant to section one of this article, the board of risk and
insurance management shall file legislative and emergency rules
providing at a minimum, the following:
(1) The patient compensation fund's assessment funding
mechanism, process and collection methodology which includes the
fund's funding stream and all necessary processes to assure timely
and accurate collection;
(2) Provisions which assure that the funding mechanism will be
sufficient to satisfy all foreseeable claims upon the fund during
the period of coverage, giving due consideration to relevant loss
or claim experience or trends, includes normal costs of operation
of the fund by the board of risk and insurance management, which
provides a reasonable reserve fund for unexpected contingencies and are consistent with generally accepted accounting principles and
assuring actuarial soundness and management of the fund;
(3) Procedures as are appropriate for notification of payment
adjustments prior to any payment periods established in which a
funding adjustment will be in effect and consistent with generally
accepted accounting principles;
(4) Requirements and processes establishing eligibility and
distribution of funds to patients making claims against the
patients injury compensation fund; and
(5) Such further requirements and criteria consistent with and
necessary to effectuate the provisions of this article.
§29-12C-3. Patients injury compensation fund.
(a) There is hereby established within the state treasury a
fund to be known as the "Patients Injury Compensation Fund." This
fund will become operative upon implementation of legislative and
emergency rules pursuant to section two of this article. The board
of risk and insurance management shall administer the fund pursuant
to and consistent with the provisions of this article.
(b) The fund shall make available reimbursements against
losses arising out of or due to a claim made by a patient who has
been certified by the board as having an uncollectible medical
malpractice damage award which meets the eligibility requirements
as established by the board for claims deemed uncollectible by the
board for tort claim judgments that have not been fully paid due to limitations on damages established in sections nine and twelve,
article seven-b, chapter fifty-five of this code.
(c) The moneys in the fund shall be derived from the funding
mechanism established by the board collected on behalf of the board
of risk and insurance management pursuant to this article. The
board shall be empowered to invest the fund and first use the
interest therefrom or other return for claim payments and
administration expenses.
(d) The funding mechanism for the patient compensation fund
shall be periodically reviewed by the board of risk and insurance
management and may be adjusted by the board based on the experience
data applicable to operation of the fund and make changes as
required to keep the fund actuarially sound and in good standing.
(e) In accordance with generally accepted accounting
principles, the board shall keep an accurate accounting of all
money or moneys earned, due, and received by the fund, and of the
liability incurred and disbursements made against the same. The
analysis shall be based on detailed actuarial assumptions in order
to assure that cost projections are as accurate as possible.
(f) The board shall adjust funding to keep the fund current to
pay all claims awarded from the fund as practicable within the
fiscal year the claim is received. If there are insufficient
moneys in the fund to pay awards granted by the board, the board
may defer payment until sufficient moneys are available in the fund, but in no case may the board extend payment to a plaintiff
past two calender years from approval of payment of a claim for
eligibility of an award from the fund.
§29-12C-4. Eligibility for payment from the fund.
(a) Eligibility for awards from the fund are limited to
patients who have been unable to collect payment on a medical
malpractice claim due to limits on awards established in sections
nine and twelve, article seven-b, chapter fifty-five of this code.
(b) The fund shall make available payments to patients arising
out of or due to a claim made by a patient who has been certified
by the board as having an uncollectible portion of a malpractice
claim damage award. The board shall include as part of legislative
and emergency rules pursuant to section two of this article, a
methodology for determining what losses are deemed to be
uncollectible and by procedural rule the process for submitting a
claim for payment from the fund.
(c) A plaintiff who has received economic damages in a
judgment against a health-care provider arising from a medical
malpractice claim as provided in subsection (a) of this section may
apply to the board for payment from the fund. The board must find
that the plaintiff has exhausted all reasonable means of recovery
available by law against the defendant or defendants and the
plaintiff is unable to collect all or a portion of the damage award that a court awarded to the plaintiff in a medical malpractice
action.
CHAPTER 30. PROFESSIONS AND OCCUPATIONS.
ARTICLE 3. WEST VIRGINIA MEDICAL PRACTICE ACT.
§30-3-14. Professional discipline of physicians and podiatrists;
reporting of information to board pertaining to medical
professional liability and professional incompetence required;
penalties; grounds for license denial and discipline of
physicians and podiatrists; investigations; physical and
mental examinations; hearings; sanctions; summary sanctions;
reporting by the board; reapplication; civil and criminal
immunity; voluntary limitation of license; probable cause
determinations.
(a) The board may independently initiate disciplinary
proceedings as well as initiate disciplinary proceedings based on
information received from medical peer review committees,
physicians, podiatrists, hospital administrators, professional
societies and others.
The board may initiate investigations as to professional
incompetence or other reasons for which a licensed physician or
podiatrist may be adjudged unqualified based upon criminal
convictions; complaints by citizens, pharmacists, physicians,
podiatrists, peer review committees, hospital administrators, professional societies or others; or if there are five judgments or
settlements within the most recent five-year period in excess of
fifty thousand dollars each. The board may not consider any
judgments or settlements as conclusive evidence of professional
incompetence or conclusive lack of qualification to practice.
(b) Upon request of the board, any medical peer review
committee in this state shall report any information that may
relate to the practice or performance of any physician or
podiatrist known to that medical peer review committee. Copies of
the requests for information from a medical peer review committee
may be provided to the subject physician or podiatrist if, in the
discretion of the board, the provision of such copies will not
jeopardize the board's investigation. In the event that copies are
so provided, the subject physician or podiatrist is allowed fifteen
days to comment on the requested information and such comments must
be considered by the board.
The chief executive officer of every hospital shall, within
sixty days after the completion of the hospital's formal
disciplinary procedure and also after the commencement of and again
after the conclusion of any resulting legal action, report in
writing to the board the name of any member of the medical staff or
any other physician or podiatrist practicing in the hospital whose
hospital privileges have been revoked, restricted, reduced or
terminated for any cause, including resignation, together with all pertinent information relating to such action. The chief executive
officer shall also report any other formal disciplinary action
taken against any physician or podiatrist by the hospital upon the
recommendation of its medical staff relating to professional
ethics, medical incompetence, medical professional liability, moral
turpitude or drug or alcohol abuse. Temporary suspension for
failure to maintain records on a timely basis or failure to attend
staff or section meetings need not be reported. Voluntary
cessation of hospital privileges for reasons unrelated to
professional competence or ethics need not be reported.
Any managed care organization operating in this state which
provides a formal peer review process shall report in writing to
the board, within sixty days after the completion of any formal
peer review process and also within sixty days after the
commencement of and again after the conclusion of any resulting
legal action, the name of any physician or podiatrist whose
credentialing has been revoked or not renewed by the managed care
organization. The managed care organization shall also report in
writing to the board any other disciplinary action taken against a
physician or podiatrist relating to professional ethics,
professional liability, moral turpitude or drug or alcohol abuse
within sixty days after completion of a formal peer review process
which results in the action taken by the managed care organization.
For purposes of this subsection, "managed care organization" means a plan that establishes, operates or maintains a network of health
care providers who have entered into agreements with and been
credentialed by the plan to provide health care services to
enrollees or insureds to whom the plan has the ultimate obligation
to arrange for the provision of or payment for health care services
through organizational arrangements for ongoing quality assurance,
utilization review programs or dispute resolutions.
Any professional society in this state comprised primarily of
physicians or podiatrists which takes formal disciplinary action
against a member relating to professional ethics, professional
incompetence, medical professional liability, moral turpitude or
drug or alcohol abuse, shall report in writing to the board within
sixty days of a final decision the name of the member, together
with all pertinent information relating to the action.
Every person, partnership, corporation, association, insurance
company, professional society or other organization providing
professional liability insurance to a physician or podiatrist in
this state, including the state board of risk and insurance
management, shall submit to the board the following information
within thirty days from any judgment or settlement of a civil or
medical professional liability action excepting product liability
actions: The date of any judgment or settlement; whether any
appeal has been taken on the judgment and, if so, by which party; the amount of any settlement or judgment against the insured; and
other information as the board may require.
Within thirty days from the entry of an order by a court in a
medical professional liability action or other civil action wherein
a physician or podiatrist licensed by the board is determined to
have rendered health care services below the applicable standard of
care, the clerk of the court in which the order was entered shall
forward a certified copy of the order to the board.
Within thirty days after a person known to be a physician or
podiatrist licensed or otherwise lawfully practicing medicine and
surgery or podiatry in this state or applying to be so licensed is
convicted of a felony under the laws of this state or of any crime
under the laws of this state involving alcohol or drugs in any way,
including any controlled substance under state or federal law, the
clerk of the court of record in which the conviction was entered
shall forward to the board a certified true and correct abstract of
record of the convicting court. The abstract shall include the
name and address of the physician or podiatrist or applicant, the
nature of the offense committed and the final judgment and sentence
of the court.
Upon a determination of the board that there is probable cause
to believe that any person, partnership, corporation, association,
insurance company, professional society or other organization has
failed or refused to make a report required by this subsection, the board shall provide written notice to the alleged violator stating
the nature of the alleged violation and the time and place at which
the alleged violator shall appear to show good cause why a civil
penalty should not be imposed. The hearing shall be conducted in
accordance with the provisions of article five, chapter
twenty-nine-a of this code. After reviewing the record of the
hearing, if the board determines that a violation of this
subsection has occurred, the board shall assess a civil penalty of
not less than one thousand dollars nor more than ten thousand
dollars against the violator. Anyone so assessed shall be notified
of the assessment in writing and the notice shall specify the
reasons for the assessment. If the violator fails to pay the
amount of the assessment to the board within thirty days, the
attorney general may institute a civil action in the circuit court
of Kanawha County to recover the amount of the assessment. In any
such civil action, the court's review of the board's action shall
be conducted in accordance with the provisions of section four,
article five, chapter twenty-nine-a of this code. Notwithstanding
any other provision of this article to the contrary, when there are
conflicting views by recognized experts as to whether any alleged
conduct breaches an applicable standard of care, the evidence must
be clear and convincing before the board may find that the
physician has demonstrated a lack of professional competence to
practice with a reasonable degree of skill and safety for patients.
Any person may report to the board relevant facts about the
conduct of any physician or podiatrist in this state which in the
opinion of that person amounts to medical professional liability or
professional incompetence.
The board shall provide forms for filing reports pursuant to
this section. Reports submitted in other forms shall be accepted
by the board.
The filing of a report with the board pursuant to any
provision of this article, any investigation by the board or any
disposition of a case by the board does not preclude any action by
a hospital, other health care facility or professional society
comprised primarily of physicians or podiatrists to suspend,
restrict or revoke the privileges or membership of the physician or
podiatrist.
(c) The board may deny an application for license or other
authorization to practice medicine and surgery or podiatry in this
state and may discipline a physician or podiatrist licensed or
otherwise lawfully practicing in this state who, after a hearing,
has been adjudged by the board as unqualified due to any of the
following reasons:
(1) Attempting to obtain, obtaining, renewing or attempting to
renew a license to practice medicine and surgery or podiatry by
bribery, fraudulent misrepresentation or through known error of the
board;
(2) Being found guilty of a crime in any jurisdiction, which
offense is a felony, involves moral turpitude or directly relates
to the practice of medicine. Any plea of nolo contendere is a
conviction for the purposes of this subdivision;
(3) False or deceptive advertising;
(4) Aiding, assisting, procuring or advising any unauthorized
person to practice medicine and surgery or podiatry contrary to
law;
(5) Making or filing a report that the person knows to be
false; intentionally or negligently failing to file a report or
record required by state or federal law; willfully impeding or
obstructing the filing of a report or record required by state or
federal law; or inducing another person to do any of the foregoing.
The reports and records as are herein covered mean only those that
are signed in the capacity as a licensed physician or podiatrist;
(6) Requesting, receiving or paying directly or indirectly a
payment, rebate, refund, commission, credit or other form of profit
or valuable consideration for the referral of patients to any
person or entity in connection with providing medical or other
health care services or clinical laboratory services, supplies of
any kind, drugs, medication or any other medical goods, services or
devices used in connection with medical or other health care
services;
(7) Unprofessional conduct by any physician or podiatrist in
referring a patient to any clinical laboratory or pharmacy in which
the physician or podiatrist has a proprietary interest unless the
physician or podiatrist discloses in writing such interest to the
patient. The written disclosure shall indicate that the patient
may choose any clinical laboratory for purposes of having any
laboratory work or assignment performed or any pharmacy for
purposes of purchasing any prescribed drug or any other medical
goods or devices used in connection with medical or other health
care services;
As used herein, "proprietary interest" does not include an
ownership interest in a building in which space is leased to a
clinical laboratory or pharmacy at the prevailing rate under a
lease arrangement that is not conditional upon the income or gross
receipts of the clinical laboratory or pharmacy;
(8) Exercising influence within a patient-physician
relationship for the purpose of engaging a patient in sexual
activity;
(9) Making a deceptive, untrue or fraudulent representation in
the practice of medicine and surgery or podiatry;
(10) Soliciting patients, either personally or by an agent,
through the use of fraud, intimidation or undue influence;
(11) Failing to keep written records justifying the course of
treatment of a patient, the records to include, but not be limited to, patient histories, examination and test results and treatment
rendered, if any;
(12) Exercising influence on a patient in such a way as to
exploit the patient for financial gain of the physician or
podiatrist or of a third party. Any influence includes, but is not
limited to, the promotion or sale of services, goods, appliances or
drugs;
(13) Prescribing, dispensing, administering, mixing or
otherwise preparing a prescription drug, including any controlled
substance under state or federal law, other than in good faith and
in a therapeutic manner in accordance with accepted medical
standards and in the course of the physician's or podiatrist's
professional practice: Provided, That a physician who discharges
his or her professional obligation to relieve the pain and
suffering and promote the dignity and autonomy of dying patients in
his or her care and, in so doing, exceeds the average dosage of a
pain relieving controlled substance, in Schedule II and III of the
Uniform Controlled Substance Act, does not violate this article;
(14) Performing any procedure or prescribing any therapy that,
by the accepted standards of medical practice in the community,
would constitute experimentation on human subjects without first
obtaining full, informed and written consent;
(15) Practicing or offering to practice beyond the scope
permitted by law or accepting and performing professional responsibilities that the person knows or has reason to know he or
she is not competent to perform;
(16) Delegating professional responsibilities to a person when
the physician or podiatrist delegating the responsibilities knows
or has reason to know that the person is not qualified by training,
experience or licensure to perform them;
(17) Violating any provision of this article or a rule or
order of the board or failing to comply with a subpoena or subpoena
duces tecum issued by the board;
(18) Conspiring with any other person to commit an act or
committing an act that would tend to coerce, intimidate or preclude
another physician or podiatrist from lawfully advertising his or
her services;
(19) Gross negligence in the use and control of prescription
forms;
(20) Professional incompetence; or
(21) The inability to practice medicine and surgery or
podiatry with reasonable skill and safety due to physical or mental
impairment, including deterioration through the aging process or
loss of motor skill or abuse of drugs or alcohol. A physician or
podiatrist adversely affected under this subdivision shall be
afforded an opportunity at reasonable intervals to demonstrate that
he or she may resume the competent practice of medicine and surgery
or podiatry with reasonable skill and safety to patients. In any proceeding under this subdivision, neither the record of
proceedings nor any orders entered by the board shall be used
against the physician or podiatrist in any other proceeding.
(d) The board shall deny any application for a license or
other authorization to practice medicine and surgery or podiatry in
this state to any applicant who, and shall revoke the license of
any physician or podiatrist licensed or otherwise lawfully
practicing within this state who, is found guilty by any court of
competent jurisdiction of any felony involving prescribing,
selling, administering, dispensing, mixing or otherwise preparing
any prescription drug, including any controlled substance under
state or federal law, for other than generally accepted therapeutic
purposes. Presentation to the board of a certified copy of the
guilty verdict or plea rendered in the court is sufficient proof
thereof for the purposes of this article. A plea of nolo
contendere has the same effect as a verdict or plea of guilt.
(e) The board may refer any cases coming to its attention to
an appropriate committee of an appropriate professional
organization for investigation and report. Except for complaints
related to obtaining initial licensure to practice medicine and
surgery or podiatry in this state by bribery or fraudulent
misrepresentation, any complaint filed more than two years after
the complainant knew, or in the exercise of reasonable diligence
should have known, of the existence of grounds for the complaint, shall be dismissed: Provided, That in cases of conduct alleged to
be part of a pattern of similar misconduct or professional
incapacity that, if continued, would pose risks of a serious or
substantial nature to the physician or podiatrist's current
patients, the investigating body may conduct a limited
investigation related to the physician or podiatrist's current
capacity and qualification to practice and may recommend
conditions, restrictions or limitations on the physician or
podiatrist's license to practice that it considers necessary for
the protection of the public. Any report shall contain
recommendations for any necessary disciplinary measures and shall
be filed with the board within ninety days of any referral. The
recommendations shall be considered by the board and the case may
be further investigated by the board. The board after full
investigation shall take whatever action it deems appropriate, as
provided herein.
(f) The investigating body, as provided for in subsection (e)
of this section, may request and the board under any circumstances
may require a physician or podiatrist or person applying for
licensure or other authorization to practice medicine and surgery
or podiatry in this state to submit to a physical or mental
examination by a physician or physicians approved by the board. A
physician or podiatrist submitting to any such examination has the
right, at his or her expense, to designate another physician to be present at the examination and make an independent report to the
investigating body or the board. The expense of the examination
shall be paid by the board. Any individual who applies for or
accepts the privilege of practicing medicine and surgery or
podiatry in this state is considered to have given his or her
consent to submit to all examinations when requested to do so in
writing by the board and to have waived all objections to the
admissibility of the testimony or examination report of any
examining physician on the ground that the testimony or report is
privileged communication. If a person fails or refuses to submit
to any such examination under circumstances which the board finds
are not beyond his or her control, failure or refusal is prima
facie evidence of his or her inability to practice medicine and
surgery or podiatry competently and in compliance with the
standards of acceptable and prevailing medical practice.
(g) In addition to any other investigators it employs, the
board may appoint one or more licensed physicians to act for it in
investigating the conduct or competence of a physician.
(h) In every disciplinary or licensure denial action, the
board shall furnish the physician or podiatrist or applicant with
written notice setting out with particularity the reasons for its
action. Disciplinary and licensure denial hearings shall be
conducted in accordance with the provisions of article five,
chapter twenty-nine-a of this code. However, hearings shall be heard upon sworn testimony and the rules of evidence for trial
courts of record in this state shall apply to all hearings. A
transcript of all hearings under this section shall be made, and
the respondent may obtain a copy of the transcript at his or her
expense. The physician or podiatrist has the right to defend
against any charge by the introduction of evidence, the right to be
represented by counsel, the right to present and cross-examine
witnesses and the right to have subpoenas and subpoenas duces tecum
issued on his or her behalf for the attendance of witnesses and the
production of documents. The board shall make all its final
actions public. The order shall contain the terms of all action
taken by the board.
(i) In disciplinary actions in which probable cause has been
found by the board, the board shall, within twenty days of the date
of service of the written notice of charges or sixty days prior to
the date of the scheduled hearing, whichever is sooner, provide the
respondent with the complete identity, address and telephone number
of any person known to the board with knowledge about the facts of
any of the charges; provide a copy of any statements in the
possession of or under the control of the board; provide a list of
proposed witnesses with addresses and telephone numbers, with a
brief summary of his or her anticipated testimony; provide
disclosure of any trial expert pursuant to the requirements of rule
26(b)(4) of the West Virginia rules of civil procedure; provide inspection and copying of the results of any reports of physical
and mental examinations or scientific tests or experiments; and
provide a list and copy of any proposed exhibit to be used at the
hearing: Provided, That the board shall not be required to furnish
or produce any materials which contain opinion work product
information or would be a violation of the attorney-client
privilege. Within twenty days of the date of service of the
written notice of charges, the board shall be required to disclose
any exculpatory evidence with a continuing duty to do so throughout
the disciplinary process. Within thirty days of receipt of the
board's mandatory discovery, the respondent shall provide the board
with the complete identity, address and telephone number of any
person known to the respondent with knowledge about the facts of
any of the charges; provide a list of proposed witnesses with
addresses and telephone numbers, to be called at hearing, with a
brief summary of his or her anticipated testimony; provide
disclosure of any trial expert pursuant to the requirements of rule
26(b)(4) of the West Virginia rules of civil procedure; provide
inspection and copying of the results of any reports of physical
and mental examinations or scientific tests or experiments; and
provide a list and copy of any proposed exhibit to be used at the
hearing.
(j) Whenever it finds any person unqualified because of any of
the grounds set forth in subsection (c) of this section, the board
may enter an order imposing one or more of the following:
(1) Deny his or her application for a license or other
authorization to practice medicine and surgery or podiatry;
(2) Administer a public reprimand;
(3) Suspend, limit or restrict his or her license or other
authorization to practice medicine and surgery or podiatry for not
more than five years, including limiting the practice of that
person to, or by the exclusion of, one or more areas of practice,
including limitations on practice privileges;
(4) Revoke his or her license or other authorization to
practice medicine and surgery or podiatry or to prescribe or
dispense controlled substances for a period not to exceed ten
years;
(5) Require him or her to submit to care, counseling or
treatment designated by the board as a condition for initial or
continued licensure or renewal of licensure or other authorization
to practice medicine and surgery or podiatry;
(6) Require him or her to participate in a program of
education prescribed by the board;
(7) Require him or her to practice under the direction of a
physician or podiatrist designated by the board for a specified
period of time; and
(8) Assess a civil fine of not less than one thousand dollars
nor more than ten thousand dollars.
(k) Notwithstanding the provisions of section eight, article
one, chapter thirty of this code, if the board determines the
evidence in its possession indicates that a physician's or
podiatrist's continuation in practice or unrestricted practice
constitutes an immediate danger to the public, the board may take
any of the actions provided for in subsection (j) of this section
on a temporary basis and without a hearing if institution of
proceedings for a hearing before the board are initiated
simultaneously with the temporary action and begin within fifteen
days of the action. The board shall render its decision within
five days of the conclusion of a hearing under this subsection.
(l) Any person against whom disciplinary action is taken
pursuant to the provisions of this article has the right to
judicial review as provided in articles five and six, chapter
twenty-nine-a of this code: Provided, That a circuit judge may
also remand the matter to the board if it appears from competent
evidence presented to it in support of a motion for remand that
there is newly discovered evidence of such a character as ought to
produce an opposite result at a second hearing on the merits before
the board and:
(1) The evidence appears to have been discovered since the
board hearing; and
(2) The physician or podiatrist exercised due diligence in
asserting his or her evidence and that due diligence would not have
secured the newly discovered evidence prior to the appeal. A
person may not practice medicine and surgery or podiatry or deliver
health care services in violation of any disciplinary order
revoking, suspending or limiting his or her license while any
appeal is pending. Within sixty days, the board shall report its
final action regarding restriction, limitation, suspension or
revocation of the license of a physician or podiatrist, limitation
on practice privileges or other disciplinary action against any
physician or podiatrist to all appropriate state agencies,
appropriate licensed health facilities and hospitals, insurance
companies or associations writing medical malpractice insurance in
this state, the American medical association, the American podiatry
association, professional societies of physicians or podiatrists in
the state and any entity responsible for the fiscal administration
of medicare and medicaid.
(m) Any person against whom disciplinary action has been taken
under the provisions of this article shall, at reasonable
intervals, be afforded an opportunity to demonstrate that he or she
can resume the practice of medicine and surgery or podiatry on a
general or limited basis. At the conclusion of a suspension,
limitation or restriction period the physician or podiatrist may
resume practice if the board has so ordered.
(n) Any entity, organization or person, including the board,
any member of the board, its agents or employees and any entity or
organization or its members referred to in this article, any
insurer, its agents or employees, a medical peer review committee
and a hospital governing board, its members or any committee
appointed by it acting without malice and without gross negligence
in making any report or other information available to the board or
a medical peer review committee pursuant to law and any person
acting without malice and without gross negligence who assists in
the organization, investigation or preparation of any such report
or information or assists the board or a hospital governing body or
any committee in carrying out any of its duties or functions
provided by law is immune from civil or criminal liability, except
that the unlawful disclosure of confidential information possessed
by the board is a misdemeanor as provided for in this article.
(o) A physician or podiatrist may request in writing to the
board a limitation on or the surrendering of his or her license to
practice medicine and surgery or podiatry or other appropriate
sanction as provided herein. The board may grant the request and,
if it considers it appropriate, may waive the commencement or
continuation of other proceedings under this section. A physician
or podiatrist whose license is limited or surrendered or against
whom other action is taken under this subsection may, at reasonable
intervals, petition for removal of any restriction or limitation on or for reinstatement of his or her license to practice medicine and
surgery or podiatry.
(p) In every case considered by the board under this article
regarding discipline or licensure, whether initiated by the board
or upon complaint or information from any person or organization,
the board shall make a preliminary determination as to whether
probable cause exists to substantiate charges of disqualification
due to any reason set forth in subsection (c) of this section. If
probable cause is found to exist, all proceedings on the charges
shall be open to the public who shall be entitled to all reports,
records and nondeliberative materials introduced at the hearing,
including the record of the final action taken: Provided, That any
medical records, which were introduced at the hearing and which
pertain to a person who has not expressly waived his or her right
to the confidentiality of the records, may not be open to the
public nor is the public entitled to the records.
(q) If the board enters three or more orders against a
physician or podiatrist within a five-year period imposing any
sanction provided in subsection (j) of this section, the board
shall require the physician or podiatrist to practice under the
direction of a physician or podiatrist designated by the board for
a specified period of time to be established by the board.
(q) (r) Notwithstanding any other provisions of this article,
the board may, at any time, on its own motion, or upon motion by the complainant, or upon motion by the physician or podiatrist, or
by stipulation of the parties, refer the matter to mediation. The
board shall obtain a list from the West Virginia state bar's
mediator referral service of certified mediators with expertise in
professional disciplinary matters. The board and the physician or
podiatrist may choose a mediator from this list. If the board and
the physician or podiatrist are unable to agree on a mediator, the
board shall designate a mediator from this listing by neutral
rotation. The mediation shall not be considered a proceeding open
to the public and any reports and records introduced at the
mediation shall not become part of the public record. The mediator
and all participants in the mediation shall maintain and preserve
the confidentiality of all mediation proceedings and records. The
mediator may not be subpoenaed or called to testify or otherwise be
subject to process requiring disclosure of confidential information
in any proceeding relating to or arising out of the disciplinary or
licensure matter mediated: Provided, That any confidentiality
agreement and any written agreement made and signed by the parties
as a result of mediation may be used in any proceedings
subsequently instituted to enforce the written agreement. The
agreements may be used in other proceedings if the parties agree in
writing.
ARTICLE 14. OSTEOPATHIC PHYSICIANS AND SURGEONS.
§30-14-12a. Initiation of suspension or revocation proceedings
allowed and required; reporting of information to board
pertaining to professional malpractice and professional
incompetence required; penalties; probable cause
determinations.
(a) The board may independently initiate suspension or
revocation proceedings as well as initiate suspension or revocation
proceedings based on information received from any person.
The board shall initiate investigations as to professional
incompetence or other reasons for which a licensed osteopathic
physician and surgeon may be adjudged unqualified if the board
receives notice that five or more judgments or settlements arising
from medical professional liability have been rendered or made
against such osteopathic physician.
(b) Upon request of the board, any medical peer review
committee in this state shall report any information that may
relate to the practice or performance of any osteopathic physician
known to that medical peer review committee. Copies of such
requests for information from a medical peer review committee may
be provided to the subject osteopathic physician if, in the
discretion of the board, the provision of such copies will not
jeopardize the board's investigation. In the event that copies are
so provided, the subject osteopathic physician is allowed fifteen days to comment on the requested information and such comments must
be considered by the board.
After the completion of a hospital's formal disciplinary
procedure and after any resulting legal action, the chief executive
officer of such hospital shall report in writing to the board
within sixty days the name of any member of the medical staff or
any other osteopathic physician practicing in the hospital whose
hospital privileges have been revoked, restricted, reduced or
terminated for any cause, including resignation, together with all
pertinent information relating to such action. The chief executive
officer shall also report any other formal disciplinary action
taken against any osteopathic physician by the hospital upon the
recommendation of its medical staff relating to professional
ethics, medical incompetence, medical malpractice, moral turpitude
or drug or alcohol abuse. Temporary suspension for failure to
maintain records on a timely basis or failure to attend staff or
section meetings need not be reported.
Any professional society in this state comprised primarily of
osteopathic physicians or physicians and surgeons of other schools
of medicine which takes formal disciplinary action against a member
relating to professional ethics, professional incompetence,
professional malpractice, moral turpitude or drug or alcohol abuse,
shall report in writing to the board within sixty days of a final decision the name of such member, together with all pertinent
information relating to such action.
Every person, partnership, corporation, association, insurance
company, professional society or other organization providing
professional liability insurance to an osteopathic physician in
this state shall submit to the board the following information
within thirty days from any judgment, dismissal or settlement of a
civil action or of any claim involving the insured: The date of
any judgment, dismissal or settlement; whether any appeal has been
taken on the judgment, and, if so, by which party; the amount of
any settlement or judgment against the insured; and such other
information as the board may require.
Within thirty days after a person known to be an osteopathic
physician licensed or otherwise lawfully practicing medicine and
surgery in this state or applying to be so licensed is convicted of
a felony under the laws of this state, or of any crime under the
laws of this state involving alcohol or drugs in any way, including
any controlled substance under state or federal law, the clerk of
the court of record in which the conviction was entered shall
forward to the board a certified true and correct abstract of
record of the convicting court. The abstract shall include the
name and address of such osteopathic physician or applicant, the
nature of the offense committed and the final judgment and sentence
of the court.
Upon a determination of the board that there is probable cause
to believe that any person, partnership, corporation, association,
insurance company, professional society or other organization has
failed or refused to make a report required by this subsection, the
board shall provide written notice to the alleged violator stating
the nature of the alleged violation and the time and place at which
the alleged violator shall appear to show good cause why a civil
penalty should not be imposed. The hearing shall be conducted in
accordance with the provisions of article five, chapter twenty-
nine-a of this code. After reviewing the record of such hearing,
if the board determines that a violation of this subsection has
occurred, the board shall assess a civil penalty of not less than
one thousand dollars nor more than ten thousand dollars against
such violator. Anyone so assessed shall be notified of the
assessment in writing and the notice shall specify the reasons for
the assessment. If the violator fails to pay the amount of the
assessment to the board within thirty days, the attorney general
may institute a civil action in the circuit court of Kanawha County
to recover the amount of the assessment. In any such civil action,
the court's review of the board's action shall be conducted in
accordance with the provisions of section four, article five,
chapter twenty-nine-a of this code.
Any person may report to the board relevant facts about the
conduct of any osteopathic physician in this state which in the opinion of such person amounts to professional malpractice or
professional incompetence.
The board shall provide forms for filing reports pursuant to
this section. Reports submitted in other forms shall be accepted
by the board.
The filing of a report with the board pursuant to any
provision of this article, any investigation by the board or any
disposition of a case by the board does not preclude any action by
a hospital, other health care facility or professional society
comprised primarily of osteopathic physicians or physicians and
surgeons of other schools of medicine to suspend, restrict or
revoke the privileges or membership of such osteopathic physician.
(c) In every case considered by the board under this article
regarding suspension, revocation or issuance of a license whether
initiated by the board or upon complaint or information from any
person or organization, the board shall make a preliminary
determination as to whether probable cause exists to substantiate
charges of cause to suspend, revoke or refuse to issue a license as
set forth in subsection (a), section eleven of this article. If
such probable cause is found to exist, all proceedings on such
charges shall be open to the public who shall be entitled to all
reports, records, and nondeliberative materials introduced at such
hearing, including the record of the final action taken: Provided,
That any medical records, which were introduced at such hearing and which pertain to a person who has not expressly waived his right to
the confidentiality of such records, shall not be open to the
public nor is the public entitled to such records. If a finding is
made that probable cause does not exist, the public has a right of
access to the complaint or other document setting forth the
charges, the findings of fact and conclusions supporting such
finding that probable cause does not exist, if the subject
osteopathic physician consents to such access.
(d) If an osteopathic physician is found by the board to have
had within a five-year period a total of three or more reported
disciplinary actions by either the board, a medical peer review
committee, or through a formal hospital disciplinary action, the
board shall require the osteopathic physician to practice under the
direction of another osteopathic physician
for a specified period
to be established by the board.
CHAPTER 38. LIENS.
ARTICLE 10. FEDERAL TAX LIENS; ORDERS AND DECREES IN BANKRUPTCY.
§38-10-4. Exemptions of property in bankruptcy proceedings.
Pursuant to the provisions of §
11 U.S.C. 522(b)(1), this state
specifically does not authorize debtors who are domiciled in this
state to exempt the property specified under the provisions of §
11
U.S.C. 522(d).
Any person who files a petition under the federal bankruptcy
law may exempt from property of the estate in a bankruptcy
proceeding the following property:
(a) The debtor's interest, not to exceed twenty-five thousand
dollars in value, in real property or personal property that the
debtor or a dependent of the debtor uses as a residence, in a
cooperative that owns property that the debtor or a dependent of
the debtor uses as a residence or in a burial plot for the debtor
or a dependent of the debtor. : Provided, That when the debtor is
a physician licensed under article three or fourteen, chapter
thirty of this code, and has commenced a bankruptcy proceeding in
part due to a verdict or judgment entered in a medical professional
liability action, if the physician has current medical malpractice
insurance for an amount of at least one million dollars for each
occurrence,
the debtor physician's interest that is exempt under
this subsection (a) may exceed twenty-five thousand dollars in
value but may not exceed two hundred fifty thousand dollars.
(b) The debtor's interest, not to exceed two thousand four
hundred dollars in value, in one motor vehicle.
(c) The debtor's interest, not to exceed four hundred dollars
in value in any particular item, in household furnishings,
household goods, wearing apparel, appliances, books, animals, crops
or musical instruments that are held primarily for the personal,
family or household use of the debtor or a dependent of the debtor: Provided, That the total amount of personal property exempted under
this subsection may not exceed eight thousand dollars.
(d) The debtor's interest, not to exceed one thousand dollars
in value, in jewelry held primarily for the personal, family or
household use of the debtor or a dependent of the debtor.
(e) The debtor's interest, not to exceed in value eight
hundred dollars plus any unused amount of the exemption provided
under subsection (a) of this section in any property.
(f) The debtor's interest, not to exceed one thousand five
hundred dollars in value, in any implements, professional books or
tools of the trade of the debtor or the trade of a dependent of the
debtor.
(g) Any unmeasured life insurance contract owned by the
debtor, other than a credit life insurance contract.
(h) The debtor's interest, not to exceed in value eight
thousand dollars less any amount of property of the estate
transferred in the manner specified in §
11 U.S.C. 542(d), in any
accrued dividend or interest under, or loan value of, any
unmeasured life insurance contract owned by the debtor under which
the insured is the debtor or an individual of whom the debtor is a
dependent.
(i) Professionally prescribed health aids for the debtor or a
dependent of the debtor.
(j) The debtor's right to receive:
(1) A social security benefit, unemployment compensation or a
local public assistance benefit;
(2) A veterans' benefit;
(3) A disability, illness or unemployment benefit;
(4) Alimony, support or separate maintenance, to the extent
reasonably necessary for the support of the debtor and any
dependent of the debtor;
(5) A payment under a stock bonus, pension, profit sharing,
annuity or similar plan or contract on account of illness,
disability, death, age or length of service, to the extent
reasonably necessary for the support of the debtor and any
dependent of the debtor, and funds on deposit in an individual
retirement account (IRA), including a simplified employee pension
(SEP) regardless of the amount of funds, unless:
(A) The plan or contract was established by or under the
auspices of an insider that employed the debtor at the time the
debtor's rights under the plan or contract arose;
(B) The payment is on account of age or length of service;
(C) The plan or contract does not qualify under Section
401(a), 403(a), 403(b), 408 or 409 of the Internal Revenue Code of
1986; and
(D) With respect to an individual retirement account,
including a simplified employee pension, the amount is subject to
the excise tax on excess contributions under Section 4973 and/or Section 4979 of the Internal Revenue Code of 1986, or any successor
provisions, regardless of whether the tax is paid.
(k) The debtor's right to receive or property that is
traceable to:
(1) An award under a crime victim's reparation law;
(2) A payment on account of the wrongful death of an
individual of whom the debtor was a dependent, to the extent
reasonably necessary for the support of the debtor and any
dependent of the debtor;
(3) A payment under a life insurance contract that insured the
life of an individual of whom the debtor was a dependent on the
date of the individual's death, to the extent reasonably necessary
for the support of the debtor and any dependent of the debtor;
(4) A payment, not to exceed fifteen thousand dollars on
account of personal bodily injury, not including pain and suffering
or compensation for actual pecuniary loss, of the debtor or an
individual of whom the debtor is a dependent;
(5) A payment in compensation of loss of future earnings of
the debtor or an individual of whom the debtor is or was a
dependent, to the extent reasonably necessary for the support of
the debtor and any dependent of the debtor;
(6) Payments made to the prepaid tuition trust fund or to the
savings plan trust fund, including earnings, in accordance with article thirty, chapter eighteen of this code on behalf of any
beneficiary.
CHAPTER 55. ACTIONS, SUITS AND ARBITRATION; JUDICIAL SALE.
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's interest in providing adequate and reasonable
compensation to those
persons
who suffer from injury or death as a
result of professional negligence;, and any limitation placed on
this system must be balanced with and considerate of the need to
fairly compensate patients who have been injured as a result of
negligent and incompetent acts
by health care providers;
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 and health
care facilities 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, the health care
facilities, 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
and health care facilities
;
That the cost of such liability insurance coverage has
continued to rise dramatically, and that the increasing
unavailability of professional liability coverage has resulted in
the state providing professional liability insurance coverage; and
that the unavailability and high costs of professional liability
coverage have exacerbated the state's loss of physicians, which,
together with other costs and taxation incurred by health care
providers and health care facilities in this state, have created a
competitive disadvantage in attracting and retaining qualified
physicians and other health care providers.
The Legislature further finds that medical liability issues
have also reached critical proportions for the state's long-term
health care facilities: as (1) Medical liability insurance premiums
for nursing homes in West Virginia continue to increase and the
number of claims per bed has increased significantly; (2) the cost
to the state medicaid program as a result of such higher premiums
has grown considerably in this period; (3) current medical
liability premium costs for some nursing homes constitute a
significant percentage of the amount of coverage; (4) these high
costs are leading some facilities to consider dropping medical
liability insurance coverage altogether; and (5) the medical liability insurance crisis for nursing homes may soon result in a
reduction of the number of beds available to citizens in need of
long-term care.
Therefore, the purpose of this enactment article 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 rate making
and other practices by the liability insurance industry,
including
the formation of a physician's mutual insurance company
and
establishing a fund to assure adequate compensation to victims of
malpractice; 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)
"Board" means the state board of risk and insurance
management;
(b) "Collateral source" means: (1) The United States Social
Security Act, as amended; (2) any state or federal health,
sickness, accident, income-disability or workers' compensation
paid benefit, 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.
(c) "Collateral source payments" means money paid or payable
by collateral sources for losses or expenses, past and future,
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 or
administrative tribunals in this state. Future collateral source
payments are those payments that to a reasonable degree of
certainty will continue to exist and be available for the benefit
of the plaintiff.
(d) "Emergency condition" means any acute traumatic injury or
acute medical condition which, according to standardized criteria
for triage, involves a significant risk of death or the
precipitation of significant complications or disabilities, impairment of bodily functions, or with respect to a pregnant
woman, a significant risk to the health of the unborn child.
(a)
(b)
extending care facility assisted living facility,
including personal care home, residential care community and
residential board and care home in and licensed by the state of
West Virginia and any state operated institution or clinic
providing health care.
(c)
(h) "Medical injury" means injury or death to a patient
arising or resulting from the rendering or failure to render health
care.
(d)
(g)
(e)
(f)
§55-7B-3. Elements of proof.
The following are necessary elements of proof that an injury or
death resulted from the failure of a health care provider to follow
the accepted standard of care:
(a) The health care provider failed to exercise that degree of
care, skill and learning required or expected of a reasonable,
prudent health care provider in the profession or class to which
the health care provider belongs acting in the same or similar
circumstances; and
(b) Such failure was
a
proximate cause of the injury or death
of the patient; and
(c) In order to recover damages against a health care provider
or health care facility under a theory that treatment rendered or
which should have been rendered deprived the patient of a chance of
recovery, or increased the risk of harm to the patient, the patient
must prove to a reasonable degree of medical probability that the
treatment rendered or which should have been rendered would have
resulted in a greater than fifty percent chance that the patient
would have had an improved recovery or would have survived.
§55-7B-6. Prerequisites for filing an action against a health care
provider; procedures; sanctions
.
(a) Notwithstanding any other provision of this code, no
person may file a medical professional liability action against any
health care provider without complying with the provisions of this
section.
(b) At least thirty days prior to the filing of a medical
professional liability action against a health care provider, the
claimant shall serve
by certified mail, return receipt requested,
.
(c) Notwithstanding any provision of this code, if a claimant
or if represented by counsel, the claimant's counsel, believes that
no screening certificate of merit is necessary because the cause of
action is based upon a well-established legal theory of liability
which does not require expert testimony supporting a breach of the
applicable standard of care, the claimant or if represented by
counsel, the claimant's counsel, shall file a statement
specifically setting forth the basis of the alleged liability of the health care provider in lieu of a screening certificate of
merit.
(d) If a claimant or his or her counsel has insufficient time
to obtain a screening certificate of merit prior to the expiration
of the applicable statute of limitations, the claimant shall comply
with the provisions of subsection (b) of this section except that
the claimant or his or her counsel shall furnish the health care
provider with a statement of intent to provide a screening
certificate of merit within sixty days of the date the health care
provider receives the notice of claim.
(e) Any health care provider who
receives
must
(f) Upon receipt of the notice of claim or of the screening
certificate, if the claimant is proceeding pursuant to the
provisions of subsection (d) of this section, the health care
provider is entitled to prelitigation mediation before a qualified
mediator upon written demand to the claimant.
Service of the notice
of claim must be made in a manner consistent with the service of process required by the West Virginia rules of civil procedure,
rule 4.
(h)
The failure of a health care provider to timely respond to
a notice of claim, in the absence of good cause shown, constitutes
a waiver of the right
to request pre-litigation mediation.
the
mailing
(i) Notwithstanding any other provision of this code, a notice
of claim, a health care provider's response to any notice claim, a
certificate of merit and the results of any mediation conducted
pursuant to the provisions of this section are confidential and are
not admissible as evidence in any court proceeding unless the
court, upon hearing, determines that failure to disclose the
contents would cause a miscarriage of justice.
§55-7B-7. Testimony of expert witness on standard of care.
(a)
The applicable standard of care and a defendant's failure
to meet
said
Such
(a)
(b)
(c)
such
(d)
such
in one of the states of
the United States; and
(e)
such
(b) Nothing contained in this section may be construed to
limit a trial court's discretion in determining the competency or
lack of competency on a ground not specifically enumerated herein.
§55-7B-8. Limit on liability for noneconomic loss.
In any medical professional liability action brought against a
health care provider, the maximum amount recoverable as damages for
noneconomic loss shall not exceed one million dollars
.
If the amendment and reenactment of this section as adopted in
the regular session of the Legislature, two thousand three, is
found by a court of law to be unconstitutional and void as to
reducing the maximum amount recoverable as damages for noneconomic
loss to two hundred fifty thousand dollars, then upon such
occurrence, the former statute embodied in this section that
established a maximum amount recoverable as damages for noneconomic
loss not to exceed one million dollars shall be revived and shall
have full force and effect.
§55-7B-9. Joint and several liability; exceptions.
(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 enter judgment of joint
and several liability against every defendant which bears twenty
five percent or more of the negligence attributable to all
defendants. The court may not enter joint liability against any
defendant. The court shall enter judgment of several, but not
joint, liability against and among all each defendants which bear
less than twenty five percent of the negligence attributable to all
defendants defendant, in accordance with the percentage of
negligence attributable to each defendant. To determine the amount
of judgment to be entered against each defendant, the court, with
regard to each defendant, shall multiply the total amount of
damages, with interest, recoverable by the plaintiff by the
percentage of each defendant's fault and that amount, together with
any post-judgment interest accrued on that amount, shall be the
maximum recoverable against said 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 to damages.
(c) In assessing percentages of fault, the trier of fact shall
consider the fault of all parties in the litigation including any
settling party. The court, in determining the amount of judgment
to be entered against each defendant against whom a verdict was
rendered in accordance with subsection (b) of this section, shall
include the amount of payment by any person which settled prior to
verdict in determining the amount to be paid by defendants to
satisfy the judgment award.
(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.
(d) Nothing in this section is meant to eliminate or diminish
any defenses or immunities which exist as of the effective date of
these amendments, except as expressly noted within.
(e) Nothing in this article is meant to preclude a health care
facility or health care provider from being held responsible for
the portion of comparative fault assessed against another health
care facility or health care provider who is acting as an agent or
servant of such health care facility or health care provider, or if
the fault of the other health care facility or health care provider
is otherwise imputable or attributable under claims of vicarious
liability. A health care provider may not be held vicariously
liable for the acts of a nonemployee health care provider or health
care professional through the principles of ostensible agency.
(f) In all actions involving fault of more than one health
care facility or health care provider, unless otherwise agreed by
all parties to the action, the court shall instruct the jury to
answer special interrogatories or, if there is no jury, shall make
findings indicating the percentage of the total fault that is
allocated to each health care facility or health care provider
pursuant to the provisions of this article.
§55-7B-10. Reduction in compensatory damages for collateral
sources payments.
(a) Notwithstanding any other provision of this code to the
contrary, in any medical professional liability action in which a
plaintiff seeks recovery for expenses for medical care,
rehabilitation services, loss of earnings, loss of earning capacity
or other economic losses, and in which liability is admitted or is
determined by the trier of fact and damages are awarded, evidence
to establish that the expenses or losses were paid or are payable,
in whole or in part, by a collateral source shall be admissible to
the court in which the action was brought after a verdict for the
plaintiff and before a judgment is entered on the verdict.
(b) In determining a judgment amount on the verdict, if the
court determines that all or part of the plaintiff's expenses or
losses have been paid or are payable by a collateral source, the
court shall then reduce that portion of the verdict that represents
these damages, or if applicable, order reimbursement of the
collateral source by the plaintiff pursuant to subsection (f) of
this section.
This reduction or payment shall be less deductions
or adjustments as provided by subsection (c) of this section. A
ny
reduction of a verdict may not exceed the amount of the judgment
for economic loss or exceed the damages paid or payable by any
collateral source. The court shall then award the remainder of the
damages to the plaintiff, consistent with the provisions of this
article.
(c)
The total amount of the collateral source payments
determined by the court shall be offset or reduced by a sum equal
to the premiums or portion of premiums paid for the particular
benefit by the plaintiff or the plaintiff's family. For the
purposes of this subsection, the term "premiums paid" means the
money paid for the term or period of the policy from which the
collateral source payment is made.
(d) Benefits from a collateral source shall not be considered
payable or receivable unless the court makes a determination that
there is a previously existing contractual or statutory obligation
on the part of the collateral source to pay the benefits.
(e) Notwithstanding any other provision of this code to the
contrary, in any medical professional liability action, within ten
days after the settlement of the claim or cause of action or the
court rules on all post trial motions, the plaintiff's attorney
shall send notice of the verdict by registered mail to all
providers of collateral sources entitled by contract to a lien
against the proceeds of the plaintiff's recovery. If a contractual
lien holder does not exercise the lien holder's right of
subrogation within twenty days after receipt of the notice of the
verdict, the lien holder shall lose the right of subrogation. This
subsection applies only to contracts executed or renewed on or
after the first day of July, two thousand three, and does not apply
to contracts executed prior to this date which are still operative, nor is this subsection applicable to contracts or other agreements
controlled by federal law.
(f) A provider of collateral sources that has a right of
subrogation or reimbursement that has complied with the
requirements of this section shall have a right of reimbursement
from a claimant to whom it has provided collateral sources if such
claimant has recovered all or part of such collateral sources from
a tortfeasor. The provider's right of reimbursement shall be
limited to the actual amount of collateral sources paid to the
claimant and recovered from a tortfeasor, minus the provider's pro
rata share of costs and attorney's fees incurred by the plaintiff.
In determining the provider's pro rata share of costs and
attorney's fees, the provider shall have deducted from its recovery
a percentage amount equal to the percentage of the judgment or
settlement which is for costs and attorney's fees.
(g) Reimbursement of a collateral source provider pursuant to
this section shall satisfy such collateral source provider's right
of subrogation or reimbursement. The provider shall have no right
of subrogation or reimbursement for collateral sources payments
made after the date of waiver, settlement or judgment. A
collateral source provider claiming a right of subrogation or
reimbursement under this section shall cooperate with the plaintiff
as is reasonably necessary to determine the nature and extent of
the subrogation claim. The failure of the provider to cooperate may be taken into account by the court in determining the right to
or the amount of the reimbursement asserted.
(h) In the event that the fees for legal services provided to
the plaintiff are based on a percentage of the amount of money
awarded to the plaintiff, such percentage shall be based on the net
amount of the award as reduced by the court pursuant to this
section. Reasonable attorney's fees recovered from lien holders or
subrogors shall be awarded by the court.
§55-7B-11. Periodic payment of damages.
(a) In a medical professional liability action, the trier of
fact shall make a determination with separate findings for each
claimant specifying the amount of each of the following:
(1) Past damages for:
(i) Medical and other related expenses in a lump sum;
(ii) Loss of earnings in a lump sum; and
(iii) Noneconomic loss in a lump sum.
(2) Future damages for:
(i) Medical and other related expenses by year;
(ii) Loss of earnings or earning capacity in a lump sum;
and
(iii) Noneconomic loss in a lump sum.
(b) Except for future medical and other related expenses
totaling less than one hundred thousand dollars for a single
claimant as provided in subsection (h) of this section, future damages for medical and other related expenses shall be paid as
periodic payments after reduction to reflect payment of the
proportionate share of counsel fees and costs based upon the
present value of the future damages awarded pursuant to this
subsection. The trier of fact may vary the amount of periodic
payments for future damages for medical and other related expenses
from year to year for the expected life of the claimant to account
for different annual expenditure requirements, including the
immediate needs of the claimant. The trier of fact may also
provide for purchase and replacement of medically necessary
equipment in the years that expenditures will be required.
(c) The trier of fact may incorporate into periodic payment
schedules any future medical expense award adjustments to account
for reasonably anticipated inflation and medical care improvements
as presented by competent evidence.
(d) Future damages for medical and other related expenses
shall be paid in the years that the trier of fact finds they will
accrue. Unless the court orders or approves a different schedule
for payment, the annual amounts due must be paid in equal quarterly
installments, rounded to the nearest dollar. Each installment is
due and payable on the first day of the month in which it accrues.
(e) Interest does not accrue on a periodic payment before
payment is due. If the payment is not made on or before the due
date, the legal rate of interest accrues as of that date.
(f) Liability to a claimant for periodic payments not yet due
for medical and other related expenses terminates upon the
claimant's death.
(g) Each party liable for all or a portion of the judgment
shall provide funding for the awarded periodic payments, separately
or together with one or more others, by means of an annuity
contract, trust or other qualified funding plan, which is approved
by the court. The state insurance commissioner shall annually
publish a list of insurers designated by the commissioner as
qualified to participate in the funding of periodic payment
judgments.
(h) Future damages for medical and other related expenses
shall not be awarded in periodic payments if the claimant objects
at least one hundred days prior to trial and stipulates that the
total amount of the future damages for medical and other related
expenses, without reduction to present value, does not exceed one
hundred thousand dollars.
(i) If full funding of an award pursuant to this section has
been provided, the judgment is discharged and any outstanding liens
as a result of the judgment are released.
(j) The court which enters judgment for periodic payments
shall retain jurisdiction to enforce the judgment and to resolve
related disputes.
§55-7B-12. Limitations on third party claims.
An action alleging death or injury resulting from medical
professional liability pursuant to this article shall not be
maintained by a third party who is not a patient of the health care
provider or the health care facility that is alleged to be liable
for the death or injury, if a subsequent intervening act of a
patient was a proximate cause of the death or injury of the third
person: Provided, That such action may be brought and maintained if
the act or acts of the health care provider or health care
facility: (1) Were intentional or were committed with reckless
disregard of the consequences; and (2) the subsequent act or acts
of the patient were reasonably foreseeable.
55-7B-13.
Limit on liability for designated trauma or emergency
care facilities; exceptions; emergency rules.
(a) The office of emergency medical services shall, pursuant
to the provisions of this section, designate health care facilities
in the state as trauma centers. Any employee or agent of a
designated trauma center, any health care provider who renders care
or assistance in a designated trauma center or provides
consultation by telemedicine to a designated trauma center, whether
or not the care or assistance was rendered gratuitously or for a
fee, or resident physician or dentist, intern, fellow or medical
student or other person enrolled in a program of undergraduate or
graduate medical education at a designated trauma center, or
licensed EMS agency, that in good faith renders care or assistance necessitated by an emergency condition for which the patient enters
the designated trauma center, may not be held liable for more than
five hundred thousand dollars in civil damage, exclusive of
interest, computed from the date of judgment, to or for the benefit
of any claimant arising out of any act or omission in rendering
that care or assistance if such care or assistance is rendered in
good faith and not
rendered with intentional misconduct or
committed with reckless disregard of the consequences
. This
limitation of liability applies to any act or omission in rendering
continued care or assistance in the event surgery is required as a
result of the emergency within a reasonable time after the patient
is stabilized. If the office of emergency medical services
determines that a designated trauma center no longer meets the
requirements for designation as a trauma center and removes its
designation, then the limitation on liability established by this
section does not apply.
(b) The limitation on liability provided pursuant to
subsection (a) of this section shall not apply to any act or
omission in rendering care or assistance: (1) Which occurs after
the patient is stabilized and is capable of receiving medical
treatment as a nonemergency patient; or (2) is unrelated to the
original emergency condition.
(c) In the event: (1) A physician provides follow-up care to
a patient to whom he rendered care or assistance pursuant to subsection (a) of this section; and (2) a medical condition arises
during the course of the follow-up care that is directly related to
the original emergency condition for which care or assistance was
rendered pursuant to subsection (a) of this section; and (3) the
patient files an action for medical professional liability based on
the medical condition that arises during the course of the follow-
up care, there is rebuttable presumption that the medical condition
was the result of the original emergency condition and that the
limitation on liability provided by subsection (a) of this section
applies with respect to that medical condition.
(d) Upon enactment of this section in the two thousand three
regular session, health care facilities may apply for designation
as a trauma center and at the discretion of the office of emergency
medical services, and be granted provisional status in order to
qualify for the limitation on liability provided pursuant to
subsection (a) of this section. To maintain the limitation on
liability provided pursuant to subsection (a) above, the office of
emergency medical services must grant a permanent designation to
the health care facility by no later than one year of the effective
date of this section.
(e) At the discretion of the commissioner of the bureau for
public health, a facility may be granted a six-month extension with
a provisional designation. To be granted provisional designation,
the trauma facility must submit a written request from the facility for an extension and accompanied by a detailed explanation and plan
of action to fulfill the requirements for a designated trauma
center. If a facility is granted provisional status, the
limitation on liability pursuant to subsection (a) of this section
attaches for the provisional period.
(f) The secretary of the department of health and human
resources shall propose for promulgation legislative rules
governing the implementation of a statewide trauma/emergency care
system that includes, but is not limited to: (1) System design,
organizational structure, and operation, including integration with
the existing emergency medical services system; (2) regulation of
facility designation, categorization, and credentialing, including
the establishment and collection of reasonable fees for
designation; and (3) a system accountability including medical
review and audit to assure system quality. The secretary shall
file the rule required by this subsection as an emergency rule on
or before the first day of July, two thousand three. The
Legislature hereby finds that an emergency exists compelling
promulgation of an emergency rule, consistent with the provision of
this section and further intends that the medical review committees
established in this subsection to assure system quality shall
include all levels of care including emergency medical service
providers, and that both the review committees and the providers shall qualify for all the rights and protections established in
article three-c of chapter thirty.
§55-7B-14.
Contingent fee arrangement.
If periodic payments are awarded to the plaintiff pursuant to
section eleven of this article, the court shall place a total value
on these payments based upon the projected life expectancy of the
plaintiff and include this amount in computing the total award from
which attorney's fees are calculated.
§55-7B-
15
.
Effective date; applicability of provisions.
(a) The provisions of House Bill 149, enacted during the first
extraordinary session of the Legislature, 1986, shall be effective
at the same time that the provisions of Enrolled Senate Bill 714,
enacted during the regular session, 1986, become effective, and the
provisions of said House Bill 149 shall be deemed to amend the
provisions of Enrolled Senate Bill 714. The provisions of this
article shall not apply to injuries which occur before the
effective date of this said Enrolled Senate Bill 714.
(b) The amendments to this article as provided in House Bill
601, enacted during the sixth extraordinary session of the
Legislature, two thousand one, apply to all causes of action
alleging medical professional liability which are filed on or after
the first day of March, two thousand two.
(c) Amendments to this article
enacted during the
regular
session of the Legislature, two thousand
three
, apply to all causes of action alleging medical professional liability which are filed
on or after the first day of July
, two thousand
three
.
§55-7B-16. Severability.
(a) If any provision of this article as enacted during the
first extraordinary session of the Legislature, 1986, in House Bill
149, or as enacted during the regular session of the Legislature,
1986, in Senate Bill 714, or the application thereof to any person
or circumstance is held invalid, such invalidity shall not affect
other provisions or applications of this article, and to this end,
the provisions of this article are declared to be severable.
(b) If any provision of the amendments to section five of this
article, any provision of new section six-d of this article or any
provision of the amendments to section eleven, article six, chapter
fifty-six of this code as provided in House Bill 601, enacted
during the sixth extraordinary session of the Legislature, two
thousand one, is held invalid, or the application thereof to any
person is held invalid, then, notwithstanding any other provision
of law, every other provision of said House Bill 601 shall be
deemed invalid and of no further force and effect.
(c) If any provision of the amendments to sections six or ten
of this article or any provision of new section six-a, six-b or
six-c of this article as provided in House Bill 60l, enacted during
the sixth extraordinary session of the Legislature, two thousand
one, is held invalid, such invalidity shall not affect other provisions or applications of this article, and to this end, such
provisions are deemed severable.