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 follows:

§55-7B-2. Definitions.

"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 agent's employment.
(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 to meet 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 provider.

(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 be added.