Senate Bill No. 140
(By Senator Foster)
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[Introduced January 9, 2008; referred to the Committee on the
Judiciary.]
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A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §33-6-38, relating to
creating the Physicians Lien Act; creating physician liens on
claims and causes of action by injured parties; requiring the
release of physician records; requiring adjudication of
claims; excluding certain benefits; and establishing priority
of lien.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §33-6-38, to read as
follows:
ARTICLE 6. THE INSURANCE POLICY.
§33-6-38. Physicians Lien Act.
(a) Creation of physicians lien. -- Every licensed physician,
including medical physicians, osteopathic physicians, chiropractic physicians, podiatric physicians and physical therapists practicing
in this state who renders services by way of treatment to injured
persons, except for services covered by workers' compensation and
rendered pursuant to article four, chapter twenty-three of this
code, have a lien upon all claims and causes of action for the
amount of the physician's reasonable charges up to the date of
payment of the claims and causes of action. In order to enforce
the lien the licensed physician or therapist shall serve on both
the injured person and the party against whom the claim or right of
action exists or that persons liability insurance company, a
written notice containing the name and address of the injured
person, the date of the injury, the name and address of the
licensed physician or therapist practicing in this state and the
name of the party alleged to be liable to make compensation to the
injured person for the injuries received. The notice shall be
served by registered or certified mail or in person.
(b) Effect of lien. -- The lien of the licensed physician or
therapist practicing in this state shall, from and after the time
of service of the notice, attach to any verdict, judgment or order
secured in any suit or action by the injured party based on any
negligent or wrongful act, and to any money or property which may
be recovered by compromise settlement, or paid in satisfaction of
any verdict or judgment resulting from any suit or action brought
by the injured person. In case of death of the injured person, the lien attaches to any money or property which may be recovered by
compromise settlement or paid in satisfaction of any verdict or
judgment resulting from any suit or action brought by the
administrator of the estate of the injured person against any other
person for the recovery of damages on account of injuries.
(c) Records of physician; examination by party to action. --
Any party to a cause pending in circuit court against whom a claim
is asserted for damages resulting from bodily injury, upon request
in writing and upon presentation of a medical record release
authorization or subpoena compliant with the Health Insurance
Portability and Accountability Act 1996 (HIPAA), is permitted to
examine the records of the physician or therapist in reference to
the examination and treatment of the injured person. Any physician
or therapist claiming a lien under this section shall, within
thirty days of being so requested in writing by a party, and only
after presentation of a HIPAA compliant medical record release
authorization or subpoena, furnish to the requesting party, or file
with the clerk of the court in which the cause is pending, a
written statement of the nature and extent of the injuries
sustained by and the treatment given to the injured person by the
physician or therapist and the history, if any, as given by the
injured person, as shown by the medical records and the manner in
which the injuries were received.
(d) Records of physician; examination by party against whom a claim is asserted. -- Any party against whom a claim is asserted
for damages resulting from injuries, upon request in writing and
upon presentation of a HIPAA compliant medical record release
authorization, is permitted to examine the records of the physician
in reference to the examination and treatment of the injured
person. Any physician claiming a lien under this section shall,
within thirty days of being so requested in writing by the party,
and only after presentation of a HIPAA compliant medical record
release authorization, furnish to the party, a written statement of
the nature and extent of the injuries sustained by and the
treatment given to the injured person by the physician or therapist
and the history, if any, as given by the injured person, as shown
by the medical records and the manner in which the injuries were
received.
(e) Failure to furnish medical report; effect. -- If a
physician or therapist fails or refuses to give or file a written
statement in conformity with and as required by subsections (c) and
(d) of this section after being requested in writing in conformity
with those subsections, the lien of the physician immediately
becomes null and void.
(f) Adjudication of rights; priority of liens. -- Upon
petition filed by the injured person or medical lien holder
practicing in this state, the circuit court shall, on written
notice to all interested adverse parties, adjudicate the rights of all interested parties and enforce their liens.
(g) Exclusion of health insurance benefits. -- The lien
created in this section attaches only to payments made for the
benefit of insureds arising under a contract of insurance including
all bodily injury liability insurance, underinsured liability
insurance, uninsured liability insurance and medical payment
insurance coverage and to payments made in a compromise settlement
of any bodily injury claim or cause of action or payments made to
satisfy a verdict or judgment paid from any insurance company,
corporation or individual. The lien does not attach to payments
made to injured persons under a policy or contract of group or
individual accident and sickness insurance including health
insurance benefits, paid under insurance contracts governed by
articles fifteen, sixteen, sixteen-c, twenty-a, twenty-four,
twenty-five and twenty-five-a, chapter thirty-three of this code,
or by any contract of insurance of a self-insured health care fund.
(h) Payment required. -- Any insurance company, corporation or
individual who fails to pay or satisfy any lien created in this
section at the time the bodily injury claim or cause of action is
settled or a verdict or judgment is satisfied is liable to the
licensed physician or therapist for the full amount of the lien.
(i) HIPAA Compliant Medical Records Release Authorization. --
A HIPAA compliant medical records release authorization for the
purpose referred to in this section is a written medical record release document that is compliant with 45 C.F.R. §§160-164 (2003)
and the Health Insurance Portability and Accountability Act 1996
and which is signed by the person or a legal representative of the
person whose protected health information is the subject of the
request.
NOTE:
The purpose of this bill is to
create a Physicians Lien
Act to allow physicians and other providers to place liens on
claims and causes of action by injured parties.
This section is new; therefore, strike-throughs and
underscoring have been omitted.