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Curry & Tolliver, PLLC - Law Changes

Medical Malpractice Bill
HB2122 Enrolled

2002 Law Changes

RECENT CHANGES TO THE MEDICAL PROFESSIONAL
LIABILITY ACT OF 1986 EFFECTIVE MARCH 1, 2002

The sixth special session of the 2001 West Virginia Legislature enacted House Bill 601 which amended the Medical Professional Liability Act of 1986. These important new amendments became effective on March 1, 2002. WV Code § 55-7B-10(b). The major substantive changes are summarized as follows:

Notice of Claim

Prior to filing suit, an individual pursuing a medical malpractice action must notify any healthcare provider he or she intends to sue of the potential claim and provide an expert certificate of merit. The notice of claim is to be served by Certified Mail, Return Receipt Requested and must contain a statement of the theory or theories of liability upon which the cause of action may be based, together with a signed screening certificate of merit.

The certificate of merit must be executed under oath by a healthcare provider qualified as an expert under the West Virginia Rules of Evidence and must state with particularity: (i) the expert's familiarity with the applicable standard of care in issue, (ii) the expert's qualifications, (iii) the expert's opinion as to how the applicable standard of care was breached, and (iv) the expert's opinion as to how the breach of the applicable standard of care resulted in injury or death. A separate certificate of merit is required for each healthcare provider against whom a claim is to be asserted.

WV Code § 55-7B-6 recognizes two exceptions to the certificate of merit requirement. First, where a claimant asserts that the cause of action is one for which expert testimony is not required, a statement specifically setting forth the basis of the alleged liability of the healthcare provider in lieu of a screening certificate of merit is permitted. Additionally, 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, then the notice of claim must inform the defendant healthcare providers that a certificate will be supplied within sixty days of the healthcare provider's receipt of the notice of claim.

After receiving a notice of a claim along with an accompanying certificate of merit, a healthcare provider may make a written demand for mediation within thirty days. If the healthcare provider fails to make a demand for presuit mediation, then his or her right to require it is waived and suit may be filed immediately. If mediation is requested by the healthcare provider, it must be conducted within forty-five days. Even though presuit mediation is requested by the healthcare provider, a claimant is entitled to take the deposition of the defendant healthcare provider prior to mediation.

House Bill 601 provides that any statute of limitations applicable to a cause of action against a healthcare provider upon whom notice is served for alleged medical professional liability shall be tolled from the date of the mailing 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 occurs last. If an individual has sent a notice of claim related to any injury or death to more than one healthcare 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 healthcare providers to whom the claimant sent a notice of claim 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.

Medical Records

WV Code § 55-7B-6(a) allows mandatory access to medical records for both a claimant and a healthcare provider. That Code Section requires the parties to exchange medical records within thirty days of the filing of the last answer by any defendant. The exchange of medical records includes all medical records pertaining to the alleged act or acts of medical professional liability which (a) are reasonably related to the plaintiff's claim and (b) are in the parties control. A plaintiff in a medical malpractice action is required to provide releases for such other medical records known to that plaintiff, but not under his or her control, which relate to the plaintiff's claim. If a party has reasonable cause to believe that medical records reasonably related to the claim of medical negligence exist and access has not been provided or a release has not been given the individual seeking the records is required to give a written notice to the party upon whom the request is made, and if the records are not received within fourteen days of the written notice, that party may obtain a hearing before the Court to compel production.

Trial Dates

WV Code § 55-7B-6(b) requires courts to convene mandatory status conferences within sixty days after the appearance of a defendant in a medical malpractice action. The court is required to enter a scheduling order which sets a trial within twenty-four months from the date the defendant medical provider makes an appearance in the case or, if multiple defendants are sued, from the date that the last defendant appears.

Jury Makeup

Unlike traditional civil litigation, House Bill 601 establishes that in medical malpractice actions there shall be twelve jurors, instead of six. Verdicts do not have to be unanimous but may be based upon a majority of vote of nine out of the twelve jurors.

Summary Jury Trials

A new provision found in House Bill 601 concerns summary jury trials. The court may order a summary trial of a case if all parties represent that a case is ready for trial and jointly move the court to establish a summary jury trial. Summary jury trials are held before a six person jury, may not last more than one day, and involve the presentation of evidence only by counsel for the parties based upon the pleadings, depositions, or other discovery that has occurred in the underlying litigation. Following the presentation by counsel, the court is required to give an abbreviated set of instructions to the jury on the applicable law. The jury is then encouraged to return a verdict that represents the unanimous verdict of all jurors. If after a reasonable time a unanimous verdict is not possible, the jury will be directed to return a special verdict consisting of an anonymous statement of each juror's finding on liability and damages.

Within thirty days after the summary jury trial, all parties to the litigation must file a notice stating whether they agree to accept or reject the verdict. If any of the parties rejects the summary verdict, then the litigation must proceed to trial. Importantly, if a verdict is rendered upon the subsequent trial of the case which is not greater than 20% more favorable to the party or parties who rejected the summary jury trial verdict, the rejecting party is liable for the costs incurred by the other party or parties subsequent to the summary jury trial, and is also liable for attorney's fees incurred after the summary jury trial.

Unfair Claims Practices

House Bill 601 also makes dramatic changes to the West Virginia Unfair Trade Practices Act. House Bill 601 now exempts medical malpractice carriers from claims based upon violation of the Unfair Trade Practices Act brought by third parties. The new Act affirmatively states that no plaintiff who files a medical professional action against a healthcare provider may file an independent cause of action against any insurer of the healthcare provider alleging that that insurer violated the provisions of the West Virginia Unfair Trade Practices Act. The Bill eliminates third party Unfair Trade Practices Act claims. It does not preclude the healthcare provider from filing a first party claim against his own insurance carrier. However, the healthcare provider is precluded from asserting such claims against his own insurance carrier until after a jury has rendered a verdict in the underlying medical professional liability action or until the case has otherwise been dismissed, resolved or disposed of.

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If you were harmed while under the care of a medical professional or hospital, you may be entitled to compensation and rehabilitative medical treatment. Only a doctor can truly know if the standard of care you deserved was the standard of care you received.

If you want to know if “you have a good case”, we will give you some basis information about your possible claim, at no charge and no obligation to you.

If you are looking for a lawyer to handle your medical malpractice case, our firm handles cases throughout West Virginia, and surrounding states on a “no recovery — no fee” basis.

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Arden J. Curry
Arden J. Curry, II
James M. Sturgeon, Jr.
Thomas H. Vanderford, IV
David K. Schwirian
Susan Curry Brasselle
Elizabeth Ashley Summitt
Cindy Sloan, R.N.
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