H. B. 3153
(By Delegate Warner)
[Introduced February 21, 2003; referred to the
Committee on the Judiciary.]
A BILL to amend sections two and seven, article seven-b, chapter
fifty-five of the code of West Virginia, one thousand nine
hundred thirty-one, as amended, all relating to medical
professional liability actions, suits and arbitration;
defining a board certified physician; and establishing
criteria and limitations on testimony by a physician as to
standard of care.
Be it enacted by the Legislature of West Virginia:
That sections two and seven, article seven-b, chapter
fifty-five of the code of West Virginia, one thousand nine hundred
thirty-one, as amended, be amended and reenacted, all to read as
ARTICLE 7B. MEDICAL PROFESSIONAL LIABILITY.
"Board certified physician" means a physician recognized
as board-certified by the following organizations: (1) American
Board of Medical Specialties (ABMS); (2) American Board of
Osteopathic Specialties (ABOS); (3) American Medical Association
(AMA), American Osteopathic Association (AOA); American Podiatric
Association (APA), and American Chiropractic Association (ACA).
(a) (b) "Health care" means any act or treatment performed or
furnished, or which should have been performed or furnished, by any
health care provider for, to or on behalf of a patient during the
patient's medical care, treatment or confinement.
(b) (c) "Health care facility" means any clinic, hospital,
nursing home or extended care facility in and licensed by the state
of West Virginia and any state operated institution or clinic
providing health care.
(c) (d) "Health care provider" means a person, partnership,
corporation, facility or institution licensed by, or certified in,
this state or another state, to provide health care or professional
health care services, including, but not limited to, a physician,
osteopathic physician, hospital, dentist, registered or licensed
practical nurse, optometrist, podiatrist, chiropractor, physical therapist or psychologist, or an officer, employee or agent thereof
acting in the course and scope of such the officer's, employee's or
(d) (e) "Medical professional liability" means any liability
for damages resulting from the death or injury of a person for any
tort or breach of contract based on health care services rendered,
or which should have been rendered, by a health care provider or
health care facility to a patient.
(e) (f) "Patient" means a natural person who receives or
should have received health care from a licensed health care
provider under a contract, expressed or implied.
(f) (g) "Representative" means the spouse, parent, guardian,
trustee, attorney or other legal agent of another.
(g) (h) "Noneconomic loss" means losses including, but not
limited to pain, suffering, mental anguish and grief.
§55-7B-7. Testimony of expert witness on standard of care.
(a) The applicable standard of care and a defendant's failure
said this standard, if at issue, shall be established in
medical professional liability cases by the plaintiff by testimony
of one or more knowledgeable, competent expert witnesses if
required by the court. Such This expert testimony may only be admitted in evidence if the foundation, therefor, is first laid
establishing that: (a) The opinion is actually held by the expert
witness; (b) the opinion can be testified to with reasonable
medical probability; (c) such the expert witness possesses
professional knowledge and expertise coupled with knowledge of the
applicable standard of care to which his or her expert opinion
testimony is addressed; (d) such the expert maintains a current
license to practice medicine in one of the states of the United
States; and (e) such the expert is engaged or qualified in the same
or substantially similar medical field as the defendant health care
(b) A physician's experience may qualify him or her to testify
regarding areas other than his or her board certified specialty.
The salient inquiry is to what extent the physician witness is
qualified to testify as an expert on the issue of a medical
malpractice defendant's standard of care in treating a patient
suffering a condition equivalent to the plaintiffs.
NOTE: The purpose of this bill is to define a board certified
physician; establish criteria and limitations on testimony by a
physician as to standard of care; and making it consistent with
the W. Va. Supreme Court decision in Fourtney v. Al Hajj.
Strike-throughs indicate language that would be stricken from
the present law, and underlining indicates new language that would