Thursday, January 16, 2003

The House of Delegates met at 11:00 a.m., Thursday, January 16, 2003 and was called to order by the Speaker.
Prayer was offered and the House was led in recitation of the Pledge of Allegiance.
The Clerk proceeded to read the Journal of Wednesday, January 15, 2003, being the first order of business, when the further reading thereof was dispensed with and the same approved.
Delegate R. Thompson arose and stated that he sought a ruling of the Chair, under the provisions of House Rule 49, concerning his obligation to vote on the anticipated passage of Com. Sub. for H. B. 2120 and Com. Sub. for H. B. 2122, the workers' compensation bill and the medical malpractice bill, respectively, said bills being on the calendar of today.
The Speaker replied that he had discussed the facts concerning the Gentleman's request with the Clerk and that the result of such discussion was that Delegate Thompson's interest in the bills was of an indirect nature and that he was a member of a class of persons possibly affected by the passage of the bills. The Speaker further reminded the Gentleman and the members of the House generally that Rule 49 specifically provides that a member can only be excused from voting if the interest be one of a direct personal or pecuniary nature and that this disqualifying interest must be one which affects the member directly and not as one of a class. For those reasons, the Speaker ruled that Delegate R. Thompson would not be excused from voting on the passage of the bills.
Following the ruling, other members arose to request the same of the Speaker.
To the requests the Speaker severally replied, applying the same ruling as in the case of the request of Delegate R. Thompson.
The following members requested to be excused from voting and were denied the request under the Rules of the House:
Delegates Houston, Hrutkay, Webster, Foster, Palumbo, Spencer, Schoen, Caruth, Walters, Long, Armstead and Perdue.
Messages from the Executive
Mr. Speaker, Mr. Kiss, presented the annual report of the West Virginia Division of Corrections, in accordance with section twenty, article one, chapter five of the code; which was filed in the Clerk's Office.
Mr. Speaker, Mr. Kiss, presented the annual report of the West Virginia Division of Natural Resources, in accordance with section seven, article one, chapter twenty of the code; which was filed in the Clerk's Office.
Mr. Speaker, Mr. Kiss, presented the annual report of the West Virginia Division of Tourism, in accordance with section nine, article two, chapter five-b of the code; which was filed in the Clerk's Office.
Mr. Speaker, Mr. Kiss, presented the annual report of the State Board of Examiners of Land Surveyors, in accordance with section twelve, article one, chapter thirty of the code; which was filed in the Clerk's Office.
Mr. Speaker, Mr. Kiss, presented the West Virginia Department of Health and Human Resources' annual report of the James "Tiger" Morton Catastrophic Illness Commission, in accordance with section two, article five-q, chapter sixteen of the code; which was filed in the Clerk's Office.
Resolutions Introduced
On motion for leave, a Joint Resolution was introduced, read by its title and referred as follows:
By Delegate Louisos:
H. J. R. 3 - "Proposing an amendment to the Constitution of the State of West Virginia, amending section thirteen, article three thereof, relating to providing that the right to a jury trial in suits at common law as well as any state-sanctioned administrative proceeding is preserved if the amount in controversy exceeds one thousand dollars; numbering and designating such proposed amendment; and providing a summarized statement of the purpose of such proposed amendment"; to the Committee on Constitutional Revision then the Judiciary.
Bills Introduced
On motions for leave, bills were introduced, read by their titles, and severally referred as follows:
By Delegates Amores, Palumbo, Hatfield, Armstead and Foster:
H. B. 2301 - "A Bill to amend and reenact section four, article ten, chapter seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended; relating to posting bond for maintenance of animals seized pursuant to allegations of neglect or cruel treatment"; to the Committee on the Judiciary then Finance.
By Delegate Campbell:
H. B. 2302 - "A Bill to amend and reenact section four, article nine-a, chapter six of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to open governmental proceedings; and providing that a governing body may not go into executive session to discuss the filling of a vacancy, when the vacancy is in the position of an elected member of the governing body"; to the Committee on the Judiciary.
By Delegate Campbell:
H. B. 2303 - "A Bill to amend and reenact section four, article ten-b, chapter five of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to contributions to government employee deferred compensation plans and allowing the state or public employer to contribute"; to the Committee on Pensions and Retirement then Finance.
By Delegate Doyle:
H. B. 2304 - "A Bill to amend article seven, chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section sixteen, relating to limiting the purchase of handguns to one gun per month; exempting law enforcement, correctional facilities and private security companies from the limitation; providing criminal penalties; and exempting antique firearms from the limitation"; to the Committee on the Judiciary.
By Delegate Doyle:
H. B. 2305 - "A Bill to amend article ten, chapter eighteen-b of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section one-b, relating to fees collected by state institutions of higher education; and waiving tuition and certain fees for persons enrolled at state institutions of higher education who wish to audit a course or class"; to the Committee on Education then Finance.
By Delegate Doyle:
H. B. 2306 - "A Bill to amend chapter forty-eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article one-a, relating to the uniform premarital agreement act; defining terms; setting forth requirements and content of agreement; providing for the effect, amendment, revocation and enforcement of such agreements; establishing statute of limitations, application and construction of article; and setting forth short title"; to the Committee on the Judiciary.
By Delegates Hall and Walters:
H. B. 2307 - "A Bill to amend and reenact section four, article one-b, chapter eighteen-b of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to requiring the higher education policy commission to insure that no person employed by any state institution of higher education, or who provides services to any state institution of higher education or to the higher education policy commission, performs or participates in or instructs students in how to perform any abortion or abortion procedure; and creating a criminal penalty for persons who are employed by any state institution of higher education, or who provide services to any state institution of higher education or to the higher education policy commission from performing or participating in or instructing students in how to perform any abortion or abortion procedure"; to the Committee on Health and Human Resources then the Judiciary.

By Delegates Fleischauer, Mezzatesta, Hatfield, Kominar, Amores, Susman and Doyle:

H. B. 2308 - "A Bill to amend and reenact sections four, five and six, article six-b, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to claims for homestead exemption; extending the time period for filing a claim for exemption; authorizing the assessor to grant or continue the exemption under certain circumstances, including to persons who become residents of a nursing home or other extended care facility and no other person or persons occupy the property; extending the time period by which the assessor must determine a person has waived the exemption; extending the time period by which the assessor must notify a claimant of a denial of a claim for exemption; and extending the time period in which the county commission is required to issue a determination regarding an appeal to the assessor's denial of an exemption"; to the Committee on the Judiciary then Finance.
By Delegates Fragale and Iaquinta:
H. B. 2309 - "A Bill to amend and reenact section six, article seven, chapter eighteen-c of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to allowing United States armed service personnel that have completed the graduation requirements for the PROMISE scholarship before September 1, 1998 to become eligible"; to the Committee on Education then Finance.

By Delegates Leggett, Yeager, Frederick, Manchin, Kominar, H. White and Romine:

H. B. 2310 - "A Bill to amend and reenact section 104, article twenty-four, chapter forty- eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to the duty of support for a child born out of wedlock by the natural father who is a teenager under the age of eighteen years; and liability of his parents"; to the Committee on the Judiciary.
By Delegate Louisos:
H. B. 2311 - "A Bill to amend and reenact section thirteen, article one, chapter twenty-four-d of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to rates charged by cable television systems; appointment by governor of three person rate review board within the public service commission"; to the Committee on Government Organization then Finance.
By Delegate Louisos:
H. B. 2312 - "A Bill to amend article three, chapter sixty-four of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section one-a, relating to amending the public service commission, tariff rules, legislative rules; relating to accelerated rate procedures for gas, water and electric utilities"; to the Committee on the Judiciary.
By Delegate Louisos:
H. B. 2313 - "A Bill to amend and reenact section thirty-four, article two, chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to granting high school diplomas posthumously to veterans of World War I, World War II, the Korean Conflict and the Vietnam Conflict"; to the Committee on Veterans Affairs and Homeland Security then Education.
By Delegate Louisos:
H. B. 2314 - "A Bill to amend article eleven-a, chapter forty-seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section three-a, relating to unfair trade practices; providing that predatory pricing is unlawful; providing criminal penalty"; to the Committee on the Judiciary.
By Delegate Louisos:
H. B. 2315 - "A Bill to amend and reenact section three, article eleven-c, chapter forty-seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend sections one, two and four, article nine, chapter sixty of said code, all relating to providing that the sales price of gasoline is required to at least be the daily 'Rack' price that exists on the date it is sold plus seven percent and an allowance for the cost of transportation; providing inspectors from the division of labor check bills of lading and take other action considered appropriate to insure compliance; providing a criminal penalty; prohibiting wholesalers of cigarettes from offering discounts to retailers or consumers; and providing a criminal penalty"; to the Committee on the Judiciary.
By Delegate Louisos:
H. B. 2316 - "A Bill to amend and reenact section one hundred eight, article four, chapter forty-six of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to requiring banks to immediately post deposits"; to the Committee on Banking and Insurance then the Judiciary.
By Delegate Louisos:
H. B. 2317 - "A Bill to amend and reenact section three, article one, chapter twenty-four of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to providing that public service commission members are elected; providing for a schedule of upcoming elections; requiring that candidates run on a nonpartisan basis; providing for an application fee; and providing that the governor may appoint commissioners to unexpired terms when vacancies occur"; to the Committee on the Judiciary.
By Delegate Louisos:
H. B. 2318 - "A Bill to amend and reenact sections one, two, three and four, article five, chapter twenty-nine-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to contested cases under the administrative procedures act; and providing for jury trials in certain cases"; to the Committee on the Judiciary.
By Delegate Louisos:
H. B. 2319 - "A Bill to amend and reenact section eighteen, article one, chapter four of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend article twenty-one, chapter eleven of said code by adding thereto a new section, designated section four-g; and to amend article twenty-four of said chapter by adding thereto a new section, designated section four-b, all relating to providing limitations on budget increases; requiring eighty percent vote of House of Delegates for any such increase; and providing that one half of budget increase or surplus revenues in the general revenue fund remaining after one half of the surplus or revenues have been set aside for the revenue shortfall reserve fund shall be used to reduce personal and corporate income tax rates"; to the Committee on Finance.
By Delegate Louisos:
H. B. 2320 - "A Bill to amend and reenact sections one and nineteen, article two, chapter six of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to permitting the use of cash or a certificate of deposit in lieu of the posting of any bond requirement under state law"; to the Committee on the Judiciary.
By Delegate Louisos:
H. B. 2321 - "A Bill to amend and reenact section three, article one, chapter twenty-four of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to the public service commission; providing for election of commissioners; compensation; and term of office"; to the Committee on the Judiciary.
By Delegate Louisos:
H. B. 2322 - "A Bill to amend and reenact section twelve, article twenty-one, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to exempting all monetary benefits derived from military retirement from personal income tax obligations"; to the Committee on Finance.
By Delegates Mezzatesta and Williams:
H. B. 2323 - "A Bill to amend and reenact section nine, article three, chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to the state department of education generally; establishing the division of school personnel and setting forth certain responsibilities for the division"; to the Committee on Education.
By Delegates Mezzatesta and Williams:
H. B. 2324 - "A Bill to amend article one, chapter eighteen-c of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section five; and to amend and reenact section three, article seven of said chapter, all relating to higher education generally; making student financial aid a priority over other funding necessities in circumstances requiring budget reductions for an institution or commission of higher education; and, including a nationally accredited institution in this state as an eligible institution under the West Virginia PROMISE scholarship program"; to the Committee on Education then Finance.
By Delegates Mezzatesta and Williams:
H. B. 2325 - "A Bill to amend and reenact sections sixteen and nineteen, article nine-d, chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, all relating to the school building authority; requiring county-wide comprehensive educational facilities plans and annual plan updates to include up-to-date projections of student enrollments; requiring the authority to provide funding for construction of comprehensive vocational technical facilities for middle schools in approved county plans; authorizing comprehensive vocational facilities constructed at existing high schools to include facilities for community and technical college education; providing for involvement of multi-county vocational technical center in planning construction of comprehensive high schools and middle schools for programs that complement center programs, including community and technical education facilities at center; providing that programs at comprehensive high or middle school may not replace program at multi-county vocational technical center without consent of center board; providing comprehensive vocational technical facilities at high schools and middle schools may not be required in counties with county comprehensive centers; and providing requirements for consideration in planning comprehensive high schools and middle schools in counties with county centers"; to the Committee on Education then Finance.
By Delegates Mezzatesta, Williams, Anderson and Ellem:
H. B. 2326 - "A Bill to amend article twenty, chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section ten, relating to creating the 'Better Sight for Better Learning Act,' relating to requiring eye examinations for children prior to their enrollment in elementary school; state board of education to promulgate criteria for carrying out the act; and providing that department of education, the department of health, together with others, to maintain a list of resources to aid children needing vision examinations or vision corrections"; to the Committee on Education then Finance.
By Delegates Mezzatesta, Michael, Williams and Warner:
H. B. 2327 - "A Bill to repeal articles twenty, twenty-one and twenty-three, chapter forty- seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended; to amend and reenact section one, article two, chapter five-f; and to further amend said code by adding thereto a new chapter, chapter ten-a, all relating to creation of charitable gaming commission in department of tax and revenue; stating legislative intent and findings; defining terms; creating charitable gaming commission and charitable gaming commission office; transferring administration of charitable bingo and charitable raffles to commission; specifying composition, qualifications, terms of office, removal, vacancies, compensation, quorum, oath and bonding, powers and duties of commissioners; providing for appointment of executive director, qualifications, oath of office, bonding and salary; specifying powers and duties of executive director; providing transition rules and for severability; specifying effective date; making technical corrections; repealing the articles on charitable raffles and charitable bingo; setting forth legislative intent; setting forth definitions; providing who may engage in charitable gaming; license required to engage in charitable gaming; license provisions; establishing fees for licenses; establishing categories of licenses; conditions to hold license; specifying duties and responsibilities of licensees of charitable gaming; providing that bingo games are open to the public; prohibiting alcoholic beverages at bingo occasions; restrictions on licenses; specifying certain conditions as a condition of licensure; venue; authorizing the conduct of charitable raffles without a license; setting license fee; specifying exemption from taxes; providing for a super bingo license; setting forth information required in an application for a charitable gaming license; providing for amendment of charitable gaming license under certain circumstances; allowing charitable gaming licensees to adopt rules and regulations; providing limitations on awarding of prizes; providing limits on compensation and the number of employees which a licensee may hire; providing for legislative rule; providing that the charitable gaming commission may propose rules relating to compensation and the number of employees; allowing concessions; setting forth permitted uses of proceeds from charitable gaming; requiring licensees to maintain certain records; audit of records; allowing a license to advertise charitable gaming occasions; proceeds of state fire charitable games; state fair charitable gaming license; state fair may adopt rules and regulations regarding charitable gaming; rules and regulations of the charitable gaming commission; exempting certain solicitation and sales from law governing solicitation of charitable contributions; requiring the filing of certain reports; specifying that charitable gaming license applications are open to public inspection; providing for county option election; specifying form; specifying prohibited acts by convicted individuals and corporations; fraud illegal; specifying criminal acts and specifying criminal penalties; obtaining license fraudulently is illegal; setting forth certain administrative remedies; civil penalties; fees; specifying administrative procedures; setting forth restrictions on use of bingo and raffle equipment; requiring certain operators of charitable bingo games to provide smoking and nonsmoking sections; establishing fees; restrictions on in certain circumstances; surety bonds required; release of surety; new bond; requirement of wholesalers and distributors to be licensed to do business in this state; resident agent requirement; how fee paid; reports required; due dates; records; inspection of records and stocks; examination of witnesses; penalties; offenses; seizure of illegal boards and games; disposition; transportation of charitable raffle boards and games; forfeitures and sales of charitable raffle boards, charitable raffle games and equipment; criminal sanctions; administration; rule making; required verification; setting forth effective dates; and providing for severability"; to the Committee on Government Organization then Finance.
By Delegate Paxton:
H. B. 2328 - "A Bill to amend and reenact section one, article eight, chapter eighteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact section three, article twenty-eight of said chapter, all relating to exempting children receiving an exemption from compulsory school attendance in favor of church school from the standardized testing requirement"; to the Committee on Education.
By Delegate Stalnaker:
H. B. 2329 - "A Bill to amend and reenact section four, article five, chapter twenty-seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to mental hygiene; involuntary commitment; proceedings; hearing; examination; order; report; mental hygiene fund; and requiring the county commission of the county in which an indigent individual resides to pay the expenses of a commitment hearing"; to the Committee on the Judiciary.
By Delegate Stemple:
H. B. 2330 - "A Bill to amend article fifteen, chapter seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section nineteen, relating to deferral of filing fees and costs incidental to bringing actions in magistrate court for the collection of delinquent ambulance bills by county ambulance authorities and county commissions"; to the Committee on the Judiciary then Finance.
By Delegates Stemple and Williams:
H. B. 2331 - "A Bill to amend and reenact section forty-eight-a, article three, chapter sixty- one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to creating a misdemeanor offense for the removal of vegetation, stone, or sand from the lands of another; and providing criminal penalty"; to the Committee on the Judiciary.
By Delegates Stemple, Paxton, Louisos and Canterbury:
H. B. 2332 - "A Bill to amend article fourteen, chapter eighteen-b of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section eleven, relating to directing higher education policy commission to conduct certain studies and report findings and recommendations to certain legislative committees at certain dates"; to the Committee on Education.

By Delegates Stemple, Butcher, Coleman, Swartzmiller and Tucker:

H. B. 2333 - "A Bill to amend and reenact section fourteen, article one, chapter fifty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to fees charged by the sheriff and providing that two dollars of the fees charged and collected by the sheriff for service of process be placed in the deputy sheriff retirement fund".; to the Committee on Pensions and Retirement then Finance.

By Delegates Stemple, Swartzmiller, Coleman, Campbell, Williams and Varner.

H. B. 2334 - "A Bill to amend and reenact section two, article fourteen-d, chapter seven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to changing the final average salary calculation from five to three years for purposes of calculating the accrued retirement benefit of a deputy sheriff retirement system member"; to the Committee on Pensions and Retirement then Finance.
By Delegates Susman and Mahan:
H. B. 2335 - "A Bill to amend article five, chapter five of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section six, relating to pay equity increase review for department of health and human resources workers who did not receive a pay equity increase and who need further adjustment in spite of the previous imposition under the Legislature's directive to make an equity adjustment in one thousand nine hundred ninety-nine; department to consider salary, tenure and other relevant factors; pay adjustment to be made from funds appropriated to the department in fiscal year two thousand three; and, Legislature's intent that the section not create causes of action"; to the Committee on Finance.
By Delegates Susman, Hatfield and Fleischauer:
H. B. 2336 - "A Bill to amend and reenact section three, article fifteen, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to the consumers sales tax; and phasing out the sales tax on food over a period of up to ten years"; to the Committee on Finance.
By Delegate R. M. Thompson:
H. B. 2337 - "A Bill to amend article ten, chapter five of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section fifteen-b, relating to authorizing a service credit under public employees retirement for federal employment service"; to the Committee on Pensions and Retirement then Finance.
By Delegate R. M. Thompson:
H. B. 2338 - "A Bill to amend and reenact section three, article three-a, chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to providing for the felony offense of 'criminal episode' under the shoplifting statute when a person shoplifts from three separate and distinct mercantile establishments within a period of no greater than ten days; and, providing for penalties"; to the Committee on the Judiciary.
By Delegate R. M. Thompson:
H. B. 2339 - "A Bill to amend article five, chapter five of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section six, relating to pay equity increase reexamination for state department of health and human resources employees who did not receive a pay equity adjustment pursuant to the Legislature's directions to make the adjustment in one thousand nine hundred ninety-nine; requiring the department to weigh salary, tenure and other relevant considerations; pay adjustment to be made from funds appropriated to the department in fiscal year two thousand three; and stating the Legislature's intent that the section not create causes of action"; to the Committee on Finance.
By Delegate R. M. Thompson:
H. B. 2340 - "A Bill to amend and reenact section one, article three-a, chapter twenty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to authority of local fire departments; granting wider authority to request materials and equipment to prevent further danger when dealing with an accident; authorizing billing for response call where no fire fee or levy has been paid"; to the Committee on Political Subdivisions then Finance.
By Delegate R. M. Thompson:
H. B. 2341 - "A Bill to amend and reenact section five, article fourteen, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to exempting propane gas, used by any church, religious sect, society or denomination as consumption use, from the excise tax on gasoline or special fuel"; to the Committee on Finance.
By Delegate R. M. Thompson:
H. B. 2342 - "A Bill to amend chapter thirty-three of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, designated article fifteen-d, relating to requiring coverage by insurers for breast reconstruction following mastectomy surgery"; to the Committee on Banking and Insurance then the Judiciary.
By Delegate R. M. Thompson (By Request):
H. B. 2343 - "A Bill to amend and reenact section one, article three, chapter thirty-two-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to increasing the amount of fees merchants are permitted to charge for cashing government or other checks"; to the Committee on Banking and Insurance then the Judiciary.
By Delegate Trump:
H. B. 2344 - "A Bill to amend and reenact section four, article seven, chapter sixty-one of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to providing that honorably retired federal law-enforcement officers are exempt from payment of fees and costs required otherwise in order to carry concealed deadly weapons"; to the Committee on the Judiciary then Finance.
By Delegates Trump and Evans:
H. B. 2345 - "A Bill to amend and reenact section twenty, article one, chapter ten of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to the giving of aid to libraries by the library commission; and providing for the manner of distribution of funds appropriated to the library commission for aid to libraries"; to the Committee on Finance.
By Delegate Walters:
H. B. 2346 - "A Bill to amend and reenact section two, article sixteen, chapter thirty-three of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to insurance and group insurance policies"; to the Committee on Banking and Insurance then Finance.
By Delegate Walters:
H. B. 2347 - "A Bill to amend and reenact section four, article two-a, chapter eighteen-b of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to authorizing colleges and universities to charge county boards of education for remedial education classes attended by graduates of West Virginia high schools"; to the Committee on Education then Finance.
By Delegate Warner:
H. B. 2348 - "A Bill to amend and reenact section thirteen, article sixteen, chapter five of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to allowing use of accumulated leave to meet initial eligibility criteria for retirement"; to the Committee on Pensions and Retirement then Finance.
By Delegate Warner:
H. B. 2349 - "A Bill to amend and reenact section one, article six, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to further amend said article by adding thereto two new sections, designated sections seven-c and twenty-seven, all relating to imposing an ad valorem tax upon nonresident owners or operators of commercial vessels used on the navigable waterways of the state"; to the Committee on the Judiciary then Finance.
By Delegate Webb:
H. B. 2350 - "A Bill to amend and reenact section two hundred thirty-four, article one, chapter forty-eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to enforcement of family obligations; and including within the definition of obligee a child, after the child's eighteenth birthday and prior to the child's twenty-first birthday, with respect to whom there is an outstanding amount of unpaid accrued support"; to the Committee on the Judiciary.
By Delegate Webb:
H. B. 2351 - "A Bill to amend and reenact section three, article fourteen, chapter eleven of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to reducing the tax on gasoline and special fuels by limiting the rate to the rate imposed by federal taxes"; to the Committee on Finance.
By Delegate Williams:
H. B. 2352 - "A Bill to amend article eleven-a, chapter four of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section four-a, relating to providing that medical monitoring may not be awarded against participants in the tobacco master settlement agreement and preserving traditional actions for actual injury"; to the Committee on Health and Human Resources then the Judiciary.
By Delegate Williams:
H. B. 2353 - "A Bill to amend and reenact section twenty-six, article twenty-two, chapter eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to increasing a surviving spouse's death benefit under a municipal police officer's or firefighter's pension from sixty percent to eighty percent of the member's pension"; to the Committee on Pensions and Retirement then Finance.

By Delegates Varner, Stemple, Kominar, Warner, Shelton, Butcher and Ferrell:

H. B. 2354 - "A Bill to amend and reenact section fifteen, article three, chapter seventeen-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to registration plates for motorcycles; allowing for plates to be fastened in vertical position; and requiring the commissioner of the division of motor vehicles to offer owners of motorcycles the choice of registration plates for vertical or horizontal positioning"; to the Committee on Roads and Transportation then Finance.
By Mr. Speaker, Mr. Kiss (By Request):
H. B. 2355 - "A Bill to amend article two-a, chapter seventeen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section thirteen-a, relating to requiring the division of highways to use salt on roads where economically feasible"; to the Committee on Roads and Transportation then Finance.
By Mr. Speaker, Mr. Kiss:
H. B. 2356 - "A Bill to amend and reenact section three, article seventeen, chapter fifty-five of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to reports and notices to the Legislature regarding actions against government agencies"; to the Committee on the Judiciary.
By Mr. Speaker, Mr. Kiss (By Request):
H. B. 2357 - "A Bill to amend and reenact section three-a, article two-a, chapter twenty-nine of the Code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to the authority of the aeronautics commissioner to expend funds"; to the Committee on Finance.
By Mr. Speaker, Mr. Kiss:
H. B. 2358 - "A Bill to amend and reenact section five-a, article one, chapter sixty of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact section two, article eight of said chapter, all relating to manufacture, serving and sale of port sherry and Madeira wines by farm wineries"; to the Committee on Finance.
By Mr. Speaker, Mr. Kiss:
H. B. 2359 - "A Bill to amend and reenact section twelve-b, article three, chapter twenty- nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend and reenact section fourteen, article three, chapter thirty-three of said code, all relating to transferring ten percent of the fees collected by the state fire marshal to general revenue; and to transferring a portion of the insurance company tax to the special revenue account of the state fire marshal"; to the Committee on Finance.
By Mr. Speaker, Mr. Kiss:
H. B. 2360 - "A Bill to amend and reenact section twelve, article three, chapter twenty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended, relating to prohibiting a municipality from closing a fire department without advance approval of the state fire marshal; and providing that the office of state fire marshal retain the proceeds from the sale of specialized vehicles purchased by that office"; to the Committee on Finance.
By Mr. Speaker, Mr. Kiss (By Request):
H. B. 2361 - "A Bill to amend article four, chapter eighteen-a of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section ten-e, relating authorizing county boards of education to provide for the use of sick leave days by surviving spouse in certain circumstances"; to the Committee on Pensions and Retirement then Finance.

By Delegates Fleischauer, Webster, Brown, Hatfield, Doyle and Amores:

H. B. 2362 - "A Bill to amend chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto two new articles, designated articles two-i and two-j; and to amend chapter thirty-three of said code by adding thereto a new article, designated article seventeen, all relating to requiring a physician to obtain the informed consent of his or her patient before ending the patient's pregnancy by inducing an abortion"; to the Committee on the Judiciary.
Consent Calendar
Third Reading
Com. Sub. for H. B. 2052, Including nationally accredited institutions in the definition of "eligible institution" for purposes of the in-state excellence scholarship program; on third reading, coming up in regular order, was read a third time.
On the passage of the bills, the yeas and nays were taken (Roll No. 7), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Leach.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2052) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 8), and there were--yeas 98, nays none, absent and not voting 2, with the absent and not voting being as follows:
Absent And Not Voting: Coleman and Leach.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2052) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
First Reading
The following bills on first reading, coming up in regular order, were each read a first time and ordered to second reading:
Com. Sub. for H. B. 2054, Requiring county clerks to record a disclaimer of unenforceable restrictive covenants based on race, color, religion, ancestry, sex, familial status, blindness, handicap or national origin,
Com. Sub. for H. B. 2154, Relating to the school calendar generally,

And,

H. B. 2300, Creating education performance audit panel to strengthen focus on improving student, school and school system performance.
House Calendar
Third Reading
Com. Sub. for H. B. 2120, Relating to workers' compensation generally; on third reading, coming up in regular order, with the right to amend, was reported by the Clerk.
There being no amendments, and having been engrossed, the bill was then read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 9), and there were--yeas 75, nays 23, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Brown, Butcher, Caputo, DeLong, Fleischauer, Fragale, Hatfield, Hrutkay, Iaquinta, Kuhn, Louisos, Manchin, Manuel, Martin, Paxton, Perdue, Susman, Thompson, R., Tucker, Webster, Wright, Yeager and Yost.
Absent And Not Voting: Coleman and Leach.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2120) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 10), and there were--yeas 81, nays 17, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Butcher, Caputo, Fleischauer, Fragale, Hatfield, Hrutkay, Louisos, Manchin, Manuel, Martin, Paxton, Thompson, R., Tucker, Webster, Wright, Yeager and Yost.
Absent And Not Voting: Coleman and Leach.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2120) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
On the passage of Com. Sub. for H. B. 2120, Delegate Blair submitted a written vote explanation to the Clerk, which was as follows:

Delegate Blair. Although I voted "Yea" on Committee Substitute for H. B. 2120 relating to workers' compensation, I did so with much apprehension and misgiving. While I agree that the deficit in the workers' compensation fund must be addressed, I do not believe that this legislation will accomplish that goal. This bill does not appropriately address the years of misadministration of this program, and it does nothing to put a stop to fraudulent claims. In addition, I have serious concerns that the increased employer premiums contained in this bill will result in the relocation or closure of West Virginia businesses. The workers' compensation situation is critical and, in my opinion, this bill will not fully address the current problems.
Delegate Wakim also tendered a written vote explanation to the Clerk on the passage of Com. Sub. for H. B. 2120, as follows:
Delegate Wakim. I wish to echo many of the sentiments of my colleague, Delegate Craig Blair. In addition, it is my assertion that the administration of the workers' compensation system be privatized within a reasonable period upon passage of this legislation. My belief is that this state government has proven over the many years that administration of this system is better performed by an entity that understands the free market system.
Finally, I too, am concerned about the newly computed premiums levied upon actual and potential businesses could be devastating to our state. I therefore, encourage further steps be taken to address this fundamental problem in our great state.
Com. Sub. for H. B. 2121, Establishing the "All-Terrain Vehicle Safety Act" and the reasons therefore; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 11), and there were--yeas 96, nays 2, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Boggs and Hatfield.
Absent And Not Voting: Coleman and Leach.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2121) passed.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
Com. Sub. for H. B. 2122, Relating to medical professional liability generally; on third reading, coming up in regular order, with the right to amend, was reported by the Clerk.
Mr. Speaker, Mr. Kiss, and Delegates Amores and Trump offered an amendment on page five, following the enacting section, by striking out the remainder of the bill and inserting in lieu thereof new language, which was adopted 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 and 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 of 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 or 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 judgements 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 monies in the fund to pay awards granted by the board, the board may defer payment until sufficient monies 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 eligible 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 as 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 judgement against a health care provider arising from a medical malpractice claim as provided in subsection (a) 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. Any one 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) (e)"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) (f) "Health care facility" means any clinic, hospital, nursing home, or 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) (g) "Health care provider" means a person, partnership, corporation, professional limited liability company, health care 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.
(h) "Medical injury" means injury or death to a patient arising or resulting from the rendering or failure to render health care.
(d) (i) "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.
(g)(j) "Non-economic loss" means losses including but not limited to pain, suffering, mental anguish and grief.
(e)(k) "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) (l) "Representative" means the spouse, parent, guardian, trustee, attorney or other legal agent of another.
§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, a notice of claim. on each health care provider who claimant will join in litigation. The notice of claim shall include a statement of the theory or theories of liability upon which a cause of action may be based, and a list of all health care providers and health care facilities to whom notices of claim are being sent, together with a screening certificate of merit. The certificate of merit shall be executed under oath by a health care provider qualified as an expert under the West Virginia rules of evidence and shall state with particularity: (1) the expert's familiarity with the applicable standard of care in issue; (2) the expert's qualifications; (3) the expert's opinion as to how the applicable standard of care was breached; and (4) the expert's opinion as to how the breach of the applicable standard of care resulted in injury or death. A separate screening certificate of merit must be provided for each health care provider against whom a claim is asserted. The person signing the screening certificate shall have no financial interest in the underlying claim, but may participate as an expert witness in any judicial proceeding. Nothing in this subsection may be construed to limit the application of rule fifteen of the rules of civil procedure.
(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 is served a notice of claim pursuant to the provisions of this section must may respond, in writing, to the claimant within thirty days of receipt of the claim or within thirty days of receipt of the certificate of merit if the claimant is proceeding pursuant to the provisions of subsection (d) of this section. The response may state that the health care provider has a bona fide defense and the name of the health care provider's counsel, if any.
(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 pre-litigation 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.
(g) If the health care provider demands mediation pursuant to the provisions of subsection (f) of this section, the mediation shall be concluded within forty-five days of the date of the written demand. The mediation shall otherwise be conducted pursuant to rule 25 of the trial court rules, unless portions of the rule are clearly not applicable to a mediation conducted prior to the filing of a complaint or unless the supreme court of appeals promulgates rules governing mediation prior to the filing of a complaint. If mediation is conducted, the claimant may depose the health care provider before mediation or take the testimony of the health care provider during the mediation.
(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. Except as otherwise provided in this subsection, any statute of limitations applicable to a cause of action against a health care provider upon whom notice was served for alleged medical professional liability shall be tolled from the date of the mailing service of a notice of claim to thirty days following receipt of a response to the notice of claim, thirty days from the date a response to the notice of claim would be due, or thirty days from the receipt by the claimant of written notice from the mediator that the mediation has not resulted in a settlement of the alleged claim and that mediation is concluded, whichever last occurs. If a claimant has sent a notice of claim relating to any injury or death to more than one health care provider, any one of whom has demanded mediation, then the statute of limitations shall be tolled with respect to, and only with respect to, those health care providers to whom the claimant sent a notice of claim to thirty days from the receipt of the claimant of written notice from the mediator that the mediation has not resulted in a settlement of the alleged claim and that mediation is concluded.
(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 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, therefor, 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 the same or substantially similar medical field as the defendant health care provider: Provided, That the expert's license has not been revoked or suspended in the past year in any state; in one of the states of the United States; and (e) (5) such the expert is engaged or qualified in the same or substantially similar medical field as the defendant health care provider; and (6) the expert devotes three fourths of his or her professional time annually to the active clinical practice in his or her medical field of specialty, or is teaching in his or her medical field in an accredited university.
(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. Upon the effective date of this section, the maximum amount recoverable as damages for noneconomic loss shall not exceed two hundred fifty thousand dollars. The maximum amount of two hundred fifty thousand dollars recoverable for non-economic loss shall then increase to account for inflation from the first day of January, two thousand four to the time of the award any damages in an amount equal to the consumer price index. Consumer price index means the last consumer price index for all consumers published by the United States department of labor. The court may instruct the jury regarding this damage cap.
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), shall include the amount of payment by any person which settled prior to verdict in determining the amount to be paid by defendants to satify 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 non-employee 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 judgement 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). This reduction or payment shall be less deductions or adjustments as provided by subsection (c). Any 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 sub-section (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 $100,000.
(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 judgement, 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 it's 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); 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) applies with respect to that medical condition.
(d) Upon enactment of this section in the two thousand and 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) 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 and 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 sections 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.
There being no further amendments, and having been engrossed, the bill was then read a third time.
Debate ensued on the passage of the bill and Delegate DeLong delivered certain remarks relative thereto, which remarks were excepted to by Delegate Mezzatesta.
Delegate Mezzatesta then withdrew the point of order.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 12), and there were--yeas 84, nays 14, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Butcher, Caputo, DeLong, Fleischauer, Hrutkay, Kuhn, Manchin, Martin, Poling, Thompson, R., Walters, Webster, Yeager and Yost.
Absent And Not Voting: Coleman and Leach.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2122) passed.
Delegate Staton moved that the bill take effect from passage.
On this question, the yeas and nays were taken (Roll No. 13), and there were--yeas 89, nays 9, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Butcher, Caputo, Fleischauer, Hrutkay, Martin, Poling, Thompson, R., Webster and Yeager.
Absent And Not Voting: Coleman and Leach.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (Com. Sub. for H. B. 2122) takes effect from passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
H. B. 2224, Relating to higher education reorganization; on third reading, coming up in regular order, was read a third time.
The question being on the passage of the bill, the yeas and nays were taken (Roll No. 14), and there were--yeas 88, nays 10, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Anderson, Ashley, Boggs, Border, Caruth, Leggett, Manuel, Schadler, Stalnaker and Stemple.
Absent And Not Voting: Coleman and Leach.
So, a majority of the members present and voting having voted in the affirmative, the Speaker declared the bill (H. B. 2224) passed.
Delegate Staton moved that the bill take effect from its passage.
On this question, the yeas and nays were taken (Roll No. 15), and there were--yeas 93, nays 5, absent and not voting 2, with the nays and absent and not voting being as follows:
Nays: Boggs, Leggett, Manuel, Stalnaker and Stemple.
Absent And Not Voting: Coleman and Leach.
So, two thirds of the members elected to the House of Delegates having voted in the affirmative, the Speaker declared the bill (H. B. 2224) takes effect from its passage.
Ordered, That the Clerk of the House communicate to the Senate the action of the House of Delegates and request concurrence therein.
On the passage of H. B. 2224, Delegate Blair submitted the following written vote explanation to the Clerk:
Delegate Blair. I strongly support higher education and I believe it is critical for our young people to continue their education beyond high school. However, at this time I am concerned that our state cannot afford to continue to support the number of colleges that currently exist and I voted "Yea" on this bill that would reorganize higher education. If our economy improves, I would certainly favor revisiting this issue to keep these schools open.

At the request of Delegate Staton, and by unanimous consent, leaves of absence were granted Delegates Coleman and Leach.
Miscellaneous Business
Delegate Williams asked and obtained unanimous consent that the remarks of Delegates Cann and Michael regarding H. B. 2120, relating to workers' compensation generally, be printed in the Appendix to the Journal.
Delegate Manchin asked and obtained unanimous consent that the remarks of Delegate Caputo regarding H. B. 2120, relating to workers' compensation generally, be printed in the Appendix to the Journal.
Delegate Manchin then asked and obtained unanimous consent that the remarks of Delegate Armstead regarding H. B. 2122, relating to medical professional liability generally, be printed in the Appendix to the Journal.
Delegate Perdue asked and obtained unanimous consent that the remarks of Delegate R. Thompson regarding H. B. 2122, relating to medical professional liability generally, be printed in the Appendix to the Journal.
Delegate Poling asked and obtained unanimous consent that the remarks of Delegate Boggs regarding H. B. 2224, relating to higher education reorganization, be printed in the Appendix to the Journal.
At 3:15 p.m., on motion of Delegate Staton, the House of Delegates adjourned until 11:00 a.m., Friday, January 17, 2003.