Senate Bill No. 48
(By Senators Foster and McCabe)
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[Introduced January 11, 2006; referred to the Committee
on the Judiciary; and then to the Committee on Finance.]
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A BILL to amend the Code of West Virginia, 1931, as amended, by
adding thereto a new section, designated §33-6-37, relating to
creating the Physicians Lien Act; effect of lien; records of
physician; priority of lien; and exclusion of health insurance
benefits.
Be it enacted by the Legislature of West Virginia:
That the Code of West Virginia, 1931, as amended, be amended
by adding thereto a new section, designated §33-6-37, to read as
follows:
ARTICLE 6. THE INSURANCE POLICY.
§33-6-37. Physicians Lien Act.
(a)
Creation of Physicians Lien.-- Every licensed physician,
including medical physicians, osteopathic physicians, chiropractic
physicians, podiatric physicians and physical therapists practicing
in this state who renders services by way of treatment to injured persons, except for services covered by Workers' Compensation and
rendered pursuant to article four, chapter twenty-four of this
code, shall have a lien upon all claims and causes of action for
the amount of the physician's reasonable charges up to the date of
payment of such claims and causes of action:
Provided, That the
lien shall include a notice in writing containing the name and
address of the injured person, the date of the injury, the name and
address of the licensed physician or therapist practicing in this
state and the name of the party alleged to be liable to make
compensation to such injured person for the injuries received,
which notice shall be served on both the injured person and the
party against whom such claim or right of action exists or that
persons liability insurance company. Service of the lien shall be
made by registered or certified mail or in person.
(b)
Effect of Lien.-- The lien of any such licensed physician
or therapist practicing in this state shall, from and after the
time of service of the aforesaid notice, attach to any verdict,
judgment or order secured in any suit or action by the injured
party based on any negligent or wrongful act, and to any money or
property which may be recovered by compromise settlement, or paid
in satisfaction of any verdict or judgment resulting from any suit
or action brought by such injured person. In case of death of the
injured person, the lien shall attach to any money or property
which may be recovered by compromise settlement or paid in satisfaction of any verdict or judgment resulting from any suit or
action brought by the administrator of the estate of the injured
person against any other person for the recovery of damages on
account of injuries.
(c)
Records of Physician; examination by party to action.--
Any party to a cause pending in circuit court against whom a claim
shall be therein asserted for damages resulting from bodily injury
shall, upon request in writing and upon presentation of a HIPPA
compliant medical record release authorization or subpoena be
permitted to examine the records of the physician or therapist in
reference to the examination and treatment of the injured person.
Any physician or therapist claiming a lien under this section
shall, within thirty days of being so requested in writing by any
such party, and only after presentation of a HIPPA compliant
medical record release authorization or subpoena, furnish to such
requesting party, or file with the clerk of the court in which the
cause is pending, a written statement of the nature and extent of
the injuries sustained by and the treatment given to the injured
person by such physician or therapist and the history, if any, as
given by the injured person, insofar as shown by the medical
records and the manner in which the injuries were received.
(d)
Records of Physician; examination by party against whom a
claim shall be asserted.-- Any party against whom a claim shall be
therein asserted for damages resulting from injuries shall, upon request in writing and upon presentation of a HIPPA compliant
medical record release authorization, be permitted to examine the
records of the physician in reference to the examination and
treatment of the injured person. Any physician claiming a lien
under this section shall, within thirty days of being so requested
in writing by any such party, and only after presentation of a
HIPPA compliant medical record release authorization, furnish to
such party, a written statement of the nature and extent of the
injuries sustained by and the treatment given to the injured person
by such physician or therapist and the history, if any, as given by
the injured person, insofar as shown by the medical records and the
manner in which the injuries were received.
(e)
Failure to furnish medical report; effect.-- Should any
physician or therapist fail or refuse to give or file a written
statement in conformity with and as required by subsections (c) and
(d) of this section after being so requested in writing in
conformity with said subsections, the lien of such physician shall
immediately become null and void.
(f)
Adjudication of rights; priority of liens.-- Upon
petition filed by the injured person or medical lien holder
practicing in this state, the circuit court shall, on written
notice to all interested adverse parties, adjudicate the rights of
all interested parties and enforce their liens.
(g)
Exclusion of health insurance benefits.-- The lien created herein attaches only to payments made for the benefit of
insureds arising under a contract of insurance including all bodily
injury liability insurance, underinsured liability insurance,
uninsured liability insurance and medical payment insurance
coverage and to payments made in a compromise settlement of any
bodily injury claim or cause of action or payments made to satisfy
a verdict or judgment paid from any insurance company, corporation
or individual. The lien does not attach to payments made to
injured persons under a policy or contract of group or individual
accident and sickness insurance including health insurance
benefits, paid under insurance contracts governed by articles
fifteen, sixteen, sixteen-c, twenty-a, twenty-four, twenty-five and
twenty-five-a, chapter thirty-three of this code, or by any
contract of insurance of a self-insured health care fund.
(h)
Payment required.-- Any insurance company, corporation or
individual who fails to pay or satisfy any lien created herein at
the time such bodily injury claim or cause of action is settled or
any such verdict or judgment is satisfied shall be held liable to
the licensed physician or therapist for the full amount of the
lien.
(I)
HIPPA Compliant Medical Records Release Authorization.--
A HIPPA compliant medical records release authorization for the
purpose referred to in this section is a written medical record
release document that is compliant with 45 C.F.R. §§ 160 - 164 (2003) and the Health Insurance Portability and Accountability Act
1996 (HIPPA) and which shall also be signed by the person or a
legal representative of the person whose protected health
information is the subject of the request.
NOTE:
The purpose of this bill is to
create a Physicians Lien
Act and defines the effect of lien, records of a physician,
priority of liens and exclusion of health insurance benefits.
This section is new; therefore, strike-throughs and
underscoring have been omitted.