Senate Bill No. 126

(By Senators Tomblin (Mr. President) and Sprouse

By Request of the Executive)

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[Introduced January 13, 2003; referred to the Committee on Banking and Insurance; and then to the Committee on the Judiciary.]

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A BILL to amend and reenact section two, article eleven-a, chapter four of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend chapter eleven of said code by adding thereto a new article, designated article thirteen-t; to amend and reenact section seven, article twelve-b, chapter twenty-nine of said code; to further amend said article by adding thereto a new section, designated section fifteen; to amend and reenact section four, article ten, chapter thirty-eight of said code; to amend and reenact sections one, two, seven, eight, nine and ten, article seven-b, chapter fifty-five of said code; and to further amend said article by adding thereto two new sections, designated sections twelve and thirteen, all relating to medical professional liability generally; providing a tax credit for certain health care providers based upon payment of medical malpractice liability tail insurance premiums; 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 tax credit; requiring annual schedule; 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; eliminating certain eligibility requirements for participation in the West Virginia health care provider professional liability insurance program; increasing exemption available to certain physicians' and surgeons' debtors in bankruptcy proceedings; medical professional liability civil actions; providing legislative findings and purpose; providing definitions; modifying the qualifications for experts who testify in medical professional liability actions; limiting liability for certain noneconomic loss; providing for severability; eliminating joint, but not several, liability among multiple defendants in medical professional liability actions; reducing damage awards for certain collateral source payments to plaintiffs; limiting civil liability for trauma care; establishing exceptions to limitation of liability; and establishing effective date.

Be it enacted by the Legislature of West Virginia:
That section two, article eleven-a, chapter four of the code of West Virginia, one thousand nine hundred thirty-one, as amended, be amended and reenacted; that chapter eleven of said code be amended by adding thereto a new article, designated article thirteen-t; that section seven, article twelve-b, chapter twenty-nine of said code be amended and reenacted; that said article be further amended thereto by adding a new section, designated section fifteen; that section four, article ten, chapter thirty-eight of said code be amended and reenacted; that sections one, two, seven, eight, nine and ten, article seven-b, chapter fifty-five of said code be amended and reenacted; and that said article be further amended by adding thereto two new sections, designated sections twelve and thirteen, all to read as follows:
CHAPTER 4. THE LEGISLATURE.

ARTICLE 11A. LEGISLATIVE APPROPRIATION OF TOBACCO SETTLEMENT FUNDS.

§4-11A-2. Receipt of settlement funds and required deposit in West Virginia tobacco settlement medical trust fund.

(a) The Legislature finds and declares that certain dedicated revenues should be preserved in trust for the purpose of stabilizing the states health related programs and delivery systems. It further finds and declares that these dedicated revenues should also be preserved in trust for the purpose of educating the public about the health risks associated with tobacco usage and for the establishment of a program designed to reduce and stop the use of tobacco by the citizens of this state and in particular by teenagers.
(b) There is hereby created a special account in the state treasury, designated the "West Virginia Tobacco Settlement Medical Trust Fund," which shall be an interest-bearing account and may be invested in the manner permitted by section nine, article six, chapter twelve of this code, with the interest income a proper credit to the fund. Unless contrary to federal law, fifty percent of all revenues received pursuant to the master settlement agreement shall be deposited in this fund. Funds paid into the account may also be derived from the following sources:
(1) All interest or return on investment accruing to the fund;
(2) Any gifts, grants, bequests, transfers or donations which may be received from any governmental entity or unit or any person, firm, foundation or corporation; and
(3) Any appropriations by the Legislature which may be made for this purpose; and
(4) Any funds or accrued interest in the physician emergency assistance credit fund remaining on or after the thirty-first day of July, two thousand eight.
(c) The moneys from the principal in the trust fund may not be expended for any purpose, except that on the first day of March, two thousand three, the treasurer shall transfer twenty million dollars to the physician emergency assistance credit fund, created in section fifteen, article twelve-b, chapter twenty-nine of the code, for maintaining and stabilizing the physician practices in West Virginia. The moneys in the trust fund resulting from interest earned on the moneys in the fund and the return on investments of the moneys in the fund shall be available only upon appropriation by the Legislature as part of the state budget and expended in accordance with the provisions of section three of this article.
CHAPTER 11. TAXATION.

ARTICLE 13T. TAX CREDIT FOR MEDICAL MALPRACTICE LIABILITY TAIL 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 tail insurance premium rates will induce retention of physicians practicing in this state.
In order to effectively decrease the cost of medical malpractice liability tail insurance premiums paid in this state on physicians' services, there is hereby provided a tax credit for certain medical malpractice liability tail 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) "Claims made malpractice insurance policy" means a medical malpractice liability insurance policy that covers claims which are reported during the policy period, meet the provisions specified by the policy, and are for an incident which occurred during the policy period, or occurred prior to the policy period, as is specified by the policy.
(2) "Eligible taxpayer" means any person subject to tax under section sixteen, article twenty-seven of this chapter, or a physician who is a partner, member, shareholder or employee of an eligible taxpayer.
(3) "Eligible taxpayer organization" means a partnership, limited liability company, or corporation that is an eligible taxpayer.
(4) "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 tail insurance premiums for or on behalf of the eligible taxpayer organization.
(5) "Person" means and includes any natural person, corporation, limited liability company, trust or partnership.
(6) "Physicians' services" means health care providers services taxable under section sixteen, article twenty-seven of this chapter, performed in this state by physicians licensed by the state board of medicine or the state board of osteopathic medicine.
(7) "Tail insurance" means insurance which covers an eligible taxpayer insured once a claims made malpractice insurance policy is canceled, not renewed or terminated and which covers claims made or asserted after such cancellation or termination for acts relating to the provision of physicians' services by the eligible taxpayer occurring during the period the prior malpractice insurance was in effect.
(8) "Tail insurance premium" means insurance coverage premiums paid by an eligible taxpayer or payor during the taxable year for tail insurance.
(9) "Tail liability" means the medical malpractice liability of an eligible taxpayer insured that results from a claim asserted subsequent to cancellation, non-renewal or termination of a claims made malpractice insurance policy for acts relating to the provision of physicians' services by the eligible taxpayer occurring during the period when the prior malpractice insurance was in effect.
§11-13T-3. Eligibility for tax credits; creation of the credit.
There shall be allowed to every eligible taxpayer a credit against the tax payable under section sixteen, article twenty-seven 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.
(a) Allowance. -- The amount of annual credit allowable under this article to an eligible taxpayer shall be equal to one third of the cost of the annual tail insurance premium paid by the eligible taxpayer or payor during the taxable year. This credit may be taken for such tail insurance premiums paid during any taxable year beginning on or after the first day of January, two thousand two, and ending on or before the thirty-first day of December, two thousand four, for tail insurance coverage that first became effective on or after the first day of January, two thousand two, and not later than the thirty-first day of December, two thousand four.
(b) Exclusions. -- No credit shall be allowed for any tail insurance premium paid by or on behalf of an eligible taxpayer employed by this state, its agencies or subdivisions. No credit shall be allowed for any tail insurance premium paid by or on behalf of an eligible taxpayer or an eligible taxpayer organization or a payor pursuant to insurance coverage provided under article twelve, or article twelve-b, chapter twenty-nine of this code. No credit shall be allowed for any tail insurance premium paid before the first day of January, two thousand two, or paid after the thirty-first day of December, two thousand four.
§11-13T-5. Unused credit carry forward, credit forfeiture.
If any credit remains after application of the credit against tax for the current taxable year under this article, the amount thereof is carried forward to each ensuing tax year until used or until the thirtieth day of June, two thousand ten, whichever occurs first. If any unused credit remains after the thirtieth day of June, two thousand ten, the amount thereof is forfeited. No carryback to a prior taxable year is allowed for the amount of any unused portion of this credit.
§11-13T-6. Application of credit; schedules; estimated taxes.
(a) The credit allowed under this article shall be applied against the tax payable under section sixteen, article twenty-seven of this chapter, for the taxable year when the tail insurance premium was paid.
(b) To assert this credit against tax, the eligible taxpayer shall prepare and file with its annual tax return filed under article twenty-seven of this chapter, and for information purposes, a schedule showing the tail insurance premium amount paid for the taxable year, the amount of credit allowed under this article, the taxes against which the credit is being applied and such 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.
(c) An eligible taxpayer may consider the amount of credit allowed under this article when determining the eligible taxpayer's liability under article twenty-seven 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) Credit resulting from tail insurance premium directly paid by persons who pay the tax imposed by section sixteen, article twenty-seven of this chapter. -- 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 state tax liability determined under section sixteen, article twenty-seven of this chapter, determined after application of all other allowable credits and exemptions.
(b) Credit for tail insurance 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. -- Tail insurance premiums paid by a payor qualify for tax credit under this article, provided that such payments are made for tail insurance to cover tail liability claims arising out of or resulting from physicians' services provided by a physician while practicing in service to or under the organizational identity of an eligible taxpayer organization or as an employee of such eligible taxpayer organization where such tail insurance covers the tail liability of:
(A) The eligible taxpayer organization; or
(B) One or more physicians practicing or previously practicing in service to or under the organizational identity of the eligible taxpayer organization or as an employee of the eligible taxpayer organization; or
(C) Any combination thereof.
(2) Application of credit by the payor against health care provider tax on physician's services. -- The annual credit allowable shall be applied to reduce the tax liability directly payable by the payor under section sixteen, article twenty-seven of this chapter, determined after application of all other allowable credits and exemptions.
(3) Application of credit by the eligible taxpayer organization against health care provider tax on physician's services. -- After application of this credit, as provided in subdivision (2) of this subsection, remaining annual credit shall then be applied to reduce the tax liability directly payable by the eligible taxpayer organization under section sixteen, article twenty-seven of this chapter, determined after application of all other allowable credits and exemptions.
(4) Apportionment among multiple eligible taxpayer organizations. -- Where a payor described in subdivision (1) of this subsection pays tail insurance premiums for and provides or formerly provided 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 (3) of this subsection, be allocated among such eligible taxpayer organizations in proportion to the tail insurance premium paid directly by the payor during the taxable year to cover tail liability 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 tail 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 shall 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. Burden of proof.
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.
This article shall be effective for taxable years beginning on or after the first day of January, 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 thirtieth day of June, two thousand ten.
CHAPTER 29. MISCELLANEOUS BOARDS AND OFFICERS.

ARTICLE 12B. WEST VIRGINIA HEALTH CARE PROVIDER PROFESSIONAL LIABILITY INSURANCE AVAILABILITY ACT.

§29-12B-7. Eligibility criteria for participation in health care provider professional liability insurance programs.

(a) Only those health care providers unable to obtain medical professional liability insurance because it is not available through the voluntary insurance market from insurers licensed to transact insurance in West Virginia at rates approved by the commissioner are eligible to obtain coverage pursuant to the provisions of this article: Provided, That any health care provider who can obtain medical professional liability insurance only pursuant to a "consent to" or "guide A" rate agreement is eligible to obtain coverage. Subject to the eligibility criteria set forth in subsection (b) of this section, all duly licensed health care providers are eligible for participation in the health care provider professional liability insurance program created by the provisions of this article: Provided, That any health care provider who has medical professional liability insurance pursuant to the provisions of article twelve, chapter twenty-nine of this code is not eligible to obtain insurance pursuant to the provisions of this article. (b) In addition to other eligibility criteria for participation in the health care provider professional liability insurance program established by the provisions of this article or criteria imposed by the board, every participant in the programs shall: (1) Maintain a policy of not excluding patients whose health care coverage is provided through the West Virginia public employees insurance plan, the West Virginia children's health insurance program, West Virginia medicaid or the West Virginia worker's compensation fund based solely on the fact that the person's health care coverage is provided by any of the aforementioned entities; (2) Annually participate, at his or her own expense, in a risk management program approved by the board relating to risk management; and (3) Agree in writing to the board's authority to assign his or her policy, individually or collectively, to a third party if the third party coverage is comparable, as determined by the board.
§29-12B-15. Physician emergency assistance credit; defined, limitations; special fund created; promulgate emergency rules; effective date.

This section shall apply to only physicians, as defined in subdivision one, and two, subsection (b), section three of this article, who are in good standing with the West Virginia board of medicine or the West Virginia board of osteopathy, who are insured pursuant to this article and who meet the requirements as outlined below:
(a)(1) Any physician who purchased tail insurance from his or her former carrier shall be entitled to a physician emergency assistance credit toward their annual premium paid to the board equal to sixty-six percent of the cost of tail insurance; and
(2) The physician emergency assistance credit of this subsection may be taken over a three or four year period, and in any one year shall not exceed the cost of that year's annual premium or exceed twenty-two percent of the total cost of the tail insurance, whichever is less; or
(b)(1) Any physician who purchases prior acts coverage pursuant to this article shall be entitled to a physician emergency assistance credit towards their annual premium paid to the board equal to thirty-three percent of their annual premium; and
(2) The physician emergency assistance credit of this subsection shall be available for three years from date of application, and the three year credit shall be considered a single credit in the annual aggregate; and
(c) Physicians may utilize the physician emergency assistance credit in either subsection (a) or (b), but not both, and this section shall limit the physician emergency assistance credit to one credit per physician; and
(d) Any physician that has received a physician emergency assistance credit pursuant to this section who relocates his or her primary practice location outside of West Virginia shall forfeit any unused amount of such credit. In addition this credit shall not be available to any physician whose primary practice location is not within the borders of the state of West Virginia;
(e) Provided that any physician that discontinues coverage pursuant to this article, but obtains other coverage and remains an actively practicing physician in the state of West Virginia, may apply the physician emergency assistance credit towards a tail coverage policy issued by the state of West Virginia, provided further in this case that the total sum of such credit must be taken in one year, as prescribed in this section, or be forfeited;
(f) There shall be created in the state treasury an account to be known and designated as the "Physician Emergency Assistance Credit Fund." In accordance with the provisions of section two, article eleven-a of chapter four, the treasurer shall make a one-time transfer on the first day of March, two thousand three, from the tobacco settlement medical trust fund in the amount of twenty million dollars to the physician emergency assistance fund. Funds and accrued interest in the physician emergency assistance fund shall be used to reimburse the board for any credits extended pursuant to this section. Any unencumbered funds remaining in the account after the first day of July, two thousand eight shall be deposited in the tobacco settlement medical trust fund;
(g) The board shall propose legislative rules for promulgation, within thirty days from the date of passage, however due to emergency nature of such rules the board shall propose emergency rules for promulgation in accordance with the provisions of section fifteen, article three, chapter twenty-nine-a of this code to effectuate the purposes of this section that will provide for the following:
(1) The physician emergency assistance credit is to be deducted from future annual premium periods, and such credit shall be itemized on the regular annual premium invoice and shall be known as the "Temporary Physician Emergency Assistance Credit" on such invoices;
(2) Develop an application process for the physician emergency assistance credit;
(3) Develop a contract for the physician emergency assistance credit that clearly indicates this is only a one-time credit offered as one credit per each physician, and that it is separate from the calculation methodology for the annual premium;
(4) Develop procedures to apply the physician emergency assistance credit to physicians who are within a practice group or medical corporation or some other corporate entity; and
(5) Any other matters that are necessary to effectuate this section; and
(h) No physician emergency assistance credit applications shall be accepted by the board after the first day of July, two thousand four;
(i) The physician emergency assistance credit shall be issued beginning sixty days from the date of passage; and
(j) The board shall hear all appeals in regards to the physician emergency assistance credit in accordance with the board's established appeal process.
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 or surgeon 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, the debtor'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;
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 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 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.
That commencing in the year two thousand one, the cost of such liability insurance coverage has risen dramatically in this and virtually every other state in the nation. These costs have increased even though both the number of medical professional liability cases, as well as the total amount paid in settlements and verdicts, has decreased from nineteen ninety-three through two thousand. Still, the increasing costs of coverage necessitated the creation of an insurance program administered by the state board of risk and insurance management, which program provided certain health care providers with liability insurance coverage.
Notwithstanding the creation of this program, the costs of insurance coverage continued to increase, which, together with other costs and taxation incurred by health care providers and health care facilities in this state, have created additional difficulties in attracting and retaining quality physicians and other health care providers.
That, given the market, and the need to retain and attract physicians, additional immediate economic incentives must be provided to enable them to afford the purchase of professional liability insurance.
Therefore, the purpose of this enactment 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 ratemaking and other practices by the liability insurance industry, 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) "Collateral source" means: (1) Any state or federal health, sickness, accident, or workers' compensation paid medical benefit, or any other state or federal act designed to provide medical benefits; (2) any contract or agreement of any group, organization, partnership, or corporation to provide, pay for, or reimburse the cost of medical, hospital, dental, nursing, rehabilitation, therapy, or other health care services or provide similar benefits.
(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 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.
(i) "Traumatic injury" means any acute wound or condition for which the patient is being treated in the trauma care unit of any health care facility designated as a trauma center by the bureau for public health, office of emergency medical services. For the purposes of the limitations set forth in section thirteen, article seven-b of this chapter, such an acute wound or condition must be one which, according to standardized criteria for triage, involves both (A) a significant risk of death or the precipitation of significant complications or disabilities, impairment of bodily functions, or with respect to a pregnant woman, the health of the fetus, and (B) a trauma alert has been issued by the trauma care unit.
§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 the 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 The expert testimony may only be admitted in evidence if the foundation, therefore, is first laid establishing that: (a) (1) The opinion is actually held by the expert witness; (b) (2) the opinion can be testified to with reasonable medical probability; (c) (3) such 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) (4) such the expert maintains a current license to practice medicine with the appropriate licensing authority of any state: in one of the states of the United States Provided, That the expert's license has not been revoked or suspended in the past one year in any state; in one of the states of the United States; and (c) such (5) the expert is engaged or qualified in the same or substantially similar medical field as the defendant health care provider; and (6) the expert has executed an affidavit stating that he or she has devoted at least fifty percent of his or her professional time annually to the active clinical practice of his or her specialty or to teaching in his or her medical field or specialty in an accredited university, or to conducting research in his or her medical field of specialty, within at least five years prior to the date the expert either testifies whether at a deposition or the trial of the action.
(b) Other than the affidavit required in subsection (a) of this section, no other extrinsic evidence is required, admissible, or discoverable to establish the qualifications required in this section.
(c) 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; exceptions; severability.

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 and the jury may be so instructed.
In a medical professional liability action brought against a health care provider, the following provisions shall govern the amount recoverable as damages for noneconomic loss:
(a) Except as otherwise provided in subsections (b) and (c) of this section, the amount of compensatory damages that represents damages for noneconomic loss, as determined by the trier of fact, shall not exceed the greater of two hundred fifty thousand dollars or an amount that is equal to three times the plaintiff's economic loss to a maximum of three hundred fifty thousand dollars for any one plaintiff or a maximum of five hundred thousand dollars for all plaintiffs, and the jury shall be so instructed.
(b) The amount recoverable for noneconomic loss in a medical professional liability action may exceed the amount described in section (a) of this section but shall not exceed five hundred thousand dollars for each plaintiff or one million dollars for each occurrence if the noneconomic losses of the plaintiff are for any of the following: (1) Wrongful death; (2) permanent and substantial physical deformity, loss of use of a limb or loss of a bodily organ system; or (3) permanent physical or mental functional injury that permanently prevents the injured person from being able to independently care for oneself and perform life sustaining activities.
(c) The limitations set forth in this section do not apply in a medical professional liability action against any defendant not covered by medical professional liability insurance for the subject claim if such insurance is in the amount of at least one million dollars per occurrence.
(d) In the event that any provision of the amendments to this section, as enacted during the regular session of the Legislature, two thousand three, or the application thereof to any person or circumstance is held invalid, the maximum amount recoverable as damages for noneconomic loss in a medical professional liability action brought against a health care provider shall thereafter not exceed one million dollars and the jury shall be so instructed.
§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, 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. Where a plaintiff has settled with any defendant or third-party defendant before verdict, any recovery by a plaintiff shall be reduced by the amount of the settlement prior to the court 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.
(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.
(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. 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) The 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-12. Limitation on damages paid by a collateral source.
(a)Notwithstanding any other provision of this code to the contrary, in any medical professional liability action in which a plaintiff seeks recovery for previously paid or incurred expenses for medical care, medical costs, nursing costs, rehabilitation or therapy services, medication costs, or other similar previously paid or incurred economic losses, the plaintiff shall, thirty days prior to trial, provide the court with an itemization of all such previously paid or incurred economic losses which the plaintiff intends to present to the trier of fact.
(b) If any category of such previously paid or incurred economic losses were paid or are payable, whether in whole or in part, by a collateral source, the plaintiff shall be precluded from presenting those damages as an element of recovery to the trier of fact unless the plaintiff provides, by evidence deemed sufficient by the court, proof that the plaintiff is either contractually, statutorily, or equitably required to subrogate to or reimburse the collateral source if a recovery is made.
(c) Prior to entry of any judgment in a medical professional liability action, the court shall set off from the verdict as determined by the jury, each collateral source with respect to which payment has already been recovered or any benefit for which there is a contractual, statutory, or equitable right of subrogation.
(d) Nothing in this section may be construed to permit the set-off from any judgment as a collateral source the proceeds of any life or disability insurance policy.
(e) Where a provider has a right of statutory, contractual, or equitable right of subrogation, that right is limited to the actual amount of collateral sources paid or payable to the plaintiff and recoverable from the defendant, less 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 equal to the percentage of the judgment attributable to costs and attorney's fees.
§55-7B-13. Limit on liability for designated trauma or emergency care facilities; exceptions; emergency rules.

(a) Any health care facility designated as a trauma center by the bureau for public health, office of emergency medical services, employee or agent of a designated trauma center, 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, intern, fellow or medical student or other person enrolled in a program of undergraduate or graduate medical education at a designated trauma center, that in good faith renders care or assistance necessitated by a traumatic injury for which the patient enters the designated trauma center, may not be held liable for more than five hundred thousand dollars in civil damages, exclusive of interest, computed from the date of injury, to or for the benefit of all claimants arising out of any act or omission in rendering that care or assistance if such care or assistance is rendered in good faith and in a manner not amounting to reckless, willful or wanton conduct.
(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 non-emergency patient: Provided, That the limitation on liability provided by subsection (a) of this section applies to any act or omission in rendering continued care or assistance in the event surgery is required as a direct and immediate result of the emergency within a reasonable time after the patient is stabilized; or (2) unrelated to the original emergency condition.
(c) In the event: (1) A physician provides follow-up care to a patient to whom he or she 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); and (3) the plaintiff 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) applies with respect to that medical condition.
(d) 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: Provided, That in order to maintain the limitation on liability provided pursuant to subsection (a) above, the office of emergency medical services shall have determined that such facilities fulfill the requirements for permanent designation by no later than one year of the effective date of this section.
(e) If office of emergency medical services determines that a facility no longer meets the requirements for designation as a trauma center and loses such designation, then the limitation on liability pursuant to subsection (a) of this section shall not apply: Provided, That at the discretion of the commissioner of the bureau for public health, the facility may be granted a six- month provisional designation, but only after receiving a written request from the facility for such an extension and accompanied by a detailed explanation and plan of action to meet the requirements for a designated trauma center. If granted provisional status, the limitation on liability pursuant to subsection (a) of this section would apply for a six-month provisional period thereafter.
(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 existing emergency medical services system; (2) regulation of designation and credentialing, including the establishment and collection of reasonable fees for designation; and (3) system accountability including medical review and audit to assure system quality. The secretary of the department of health and human resources 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 subsection.


 NOTE: The purpose of this bill is to provide financial stability to the medical professional liability insurance market by providing a tax credit for certain health care providers; providing for termination of tax credit; eliminating certain eligibility requirements for participation in the West Virginia health care provider professional liability insurance program; increasing exemption available to certain physicians and surgeons debtors in bankruptcy proceedings; relating generally to medical professional liability civil actions; providing legislative findings and purpose; providing definitions. In addition, the bill modifies the qualifications for experts who testify in medical professional liability actions, limits liability for certain noneconomic loss, eliminates joint, but not several, liability among multiple defendants, provides for a reduction in damage awards for certain collateral source payments to plaintiffs, and limits civil liability for trauma care.
Strike-throughs indicate language that would be stricken from the present law, and underlining indicates language that would be added.

§§11-13D is new; therefore, strike-throughs and underscoring have been omitted. In addition, §29-12B-15, §55-7B-12 and §55-7B-13 are new; therefore, strike-throughs and underscoring have been omitted.