HEALTHCARE PROVIDER LIABILITY IN WEST VIRGINIA UPDATE ON THE LAW 2015-2016
Medical Malpractice Claims in West Virginia The Medical Professional Liability Act (MPLA) West Virginia Code Section 55-7B-1 et seq. The MPLA governs the prosecution of medical negligence actions, with rules applicable to the institution of the case, the elements of proof, the amount of damages that can be recovered, and the division of liability. The Act provides limitations and restrictions that are not present in other personal injury actions.
Purpose of the Act The legislation was first enacted in 1986 to balance the rights of our individual citizens to adequate and reasonable compensation with the broad public interest in the provision of services by qualified health care providers who can themselves obtain the protection of reasonably priced and extensive liability coverage.
What Does The Act Do? Applies only to health care providers Applies only to patients Shortens the statute of limitations for children s claims Defines elements of proof Sets standards for the qualification of expert witnesses Requires reasonable proof to support loss of chance claims Eliminates ostensible agency liability for non-employees Caps noneconomic loss and loss from trauma care Diverts excess economic losses to a patient injury compensation fund, in some cases Reduces verdicts by collateral sources of recovery, in some cases Allows several liability
2001 Amendments Required a Pre-Suit Notice of Claim and Screening Certificate of Merit Established Elements of Proof for Medmal Cases Codified Loss of Chance Cases to Require Proof That Plaintiff Had Greater Than 25% Chance of Recovery or Survival If Accepted Standards of Care Had Been Followed Created a Two Year Statute of Limitations Discovery Rule Statute Begins to Run When Patient Becomes Aware or Should Be Aware That Treatment Caused Injury (Not Required to Have Knowledge of Negligence) Ten Year Statute of Repose No Action Can Be Filed More Than Ten Years After Injury or Two Years After Minor Reaches Age of 10.
2001 Amendments Forbids a Prayer for a Specific Amount of Monetary Damages Abolished Third Party Bad Faith Actions in Medmal Actions Mandatory Mediation in All Medmal Cases Mandatory Exchange of Medical Records Changed from Six Person Jury to Twelve Person Jury With Majority Nine Votes Instead of Unanimous (Held Unconstitutional) Established Requirements for Competency of Expert Witnesses Eliminated Third Party (Non-Patient) Claims Against Physicians Abolished Joint and Several Liability
2003 Amendments Limited Non-Economic Damages to $250,000 In Case of Wrongful Death or Permanent and Substantial Disability; Loss of Limb or Bodily Organ System Limit on Non-Economic Damages is $500,000 Non-Economic Damage Limits to Rise By Annual Rate of Inflation (Increase Not to Exceed 50%) $250,000 Cap Could Rise to $330,000 $500,000 Cap Could Rise to $642,000 Overall Cap of Damages in Trauma Cases of $500,000 With No Inflationary Adjustments (Treatment of Patients With Emergency Conditions Admitted to Designated Trauma Centers) Non Economic Damage Limits Do No Apply to a Defendant Who Does Not Have $1M in Insurance Limits in the Aggregate Amount
2015 Amendments Broadened Coverage to Include Nursing Homes, Pharmacists, Kidney Dialysis Centers, Home Health Agencies, Group Residential Facilities, Disability Centers, and Ambulatory Health Care Facilities Licensed by the State of WV Broadened Definition of Healthcare Provider to Include Physician Assistants, Psychologists, CNAs, Technicians and Any Person Acting Pursuant to or in Furtherance of a Plan of Care, Medical Diagnosis or Treatment Expanded Coverage to Include Claims of Negligent Credentialing, Inadequate Staffing, Custodial Care, Infection Control, Hydration, Nutrition, and Any Service Performed or Furnished Under the Supervision or Direction of a Healthcare Provider or Licensed Professional
2015 Amendments Modified Inflationary Increase for Non-Economic Limits from 50% to 150%. $250,000 Cap Can Rise to $375,000 $500,000 Cap Can Rise to $750,000 Allowed Inflationary Rise for Trauma Cap Based on CPI Beginning 1/1/16 Limited to Overall Rise of 150% ($750,000). Limited Amount to be Recovered for Past Medical Expenses to Amount Actually Paid And Any Expenses For Which Patient Is Personally Liable.
2016 Amendments Bars Claims Against Physicians By Those Who Commit, Attempt to Commit or are Fleeing a Felony (In Response to Supreme Court Ruling That Substance Abusers Can Sue Physicians For Damages Related to Their Own Wrongful Conduct) Eliminated the Patient Injury Fund Effective 1/1/16. Imposes a 1% Tax on any Judgment or Settlement of a MPLA Claim From 7/1/16 to 6/30/20. Funds to be Used to Resolve Pending Patient Injury Fund Claims
Cases Maynard v. Wexford Health Services, Inc. Facts: Inmate Sued Dentist Alleging That Piece of Dental Equipment Was Lodged in His Gum Requiring Removal by Oral Surgeon Legal Issue: Whether Doctrine of Res Ipsa Loquitur Applies Ruling: Doctrine Does Not Apply Because Plaintiff s Expert Admitted That Condition Could Have Been Caused as A Result of Things Other Than the Dentist s Negligence
Cases Williams v. CMO Management, LLC. Facts: Alzheimer s Patient s Estate Sued Nursing Home for Negligence and Wrongful Death Legal Issue: Whether Claims Were Barred Because of Expiration of Statute of Limitation Ruling: Claims Were Not Barred and Statute of Limitation Did Not Begin to Run Until Date of Death Because Alzheimer s Patient Was Unable to Discover His Injuries
Cases State ex rel. Khoury v. Cuomo Facts: Patient Brought Suit in Ohio County, WV For Alleged Negligent Surgery Which Occurred in Belmont County, OH Issue: Whether Jurisdiction and Venue Were Proper in WV and Whether Doctrine of Forum Non Conveniens Required Suit to be Transferred to Belmont County Ruling: Jurisdiction and Venue Were Proper Because Physician Lived in WV and Some Acts of Alleged Negligence Occurred in WV. Doctrine of Forum Non Conveniens Did Not Require Case to be Transferred to Ohio Because Defendant Physician Did Not Face a Substantial Hardship in Litigating the Case in WV
Cases State ex rel. Wheeling Hosp. v. Wilson Facts: Suit in Ohio County, WV For Alleged Negligent Surgery and Patient Sought Information from Hospital Regarding Prior Surgeries by Physician. Hospital Refused Citing Peer Review Privilege and the Court Ordered the Documents Produced Issue: Whether Information Kept By Hospital on Prior Surgeries by Physician Were Protected from Discovery by Peer Review Privilege Ruling: Court Could Not Determine and Remanded Case Requiring Hospital to Prepare Detailed Privilege Log Giving Exact Origin of Each Document It Claimed as Privileged and the Specific Use of the Document in Question
Cases State ex rel. Wheeling Hosp. v. Wilson To determine whether a particular document is protected by the peer review privilege codified at W. Va. Code 30-3C-3 (1980) (Repl. Vol. 2015), a reviewing court must ascertain both the exact origin and the specific use of the document in question. Documents that have been created exclusively by or for a review organization, or that originate therein, and that are used solely by that entity in the peer review process are privileged. However, documents that either (1) are not created exclusively by or for a review organization, (2) originate outside the peer review process, or (3) are used outside the peer review process are not privileged.
Cases Stephens v. Rakes Facts: Appeal of a Plaintiff s Verdict in a Case Involving Death of a Hospital Patient With COPD and Other Breathing Issue. Issue: Whether Court Properly Denied Defendant s Motion for Summary Judgment and Whether Perspective Black Juror Was Improperly Struck Because Defendant Was Black Ruling: Court Properly Denied Defendant s MSJ and Plaintiff Had a Sufficient Non-Discriminatory Reason to Strike the Perspective Juror (Juror Expressed Belief During Voir Dire That a Strong Association Existed Between Smoking and Respiratory Issues)
Cases Tug Valley Pharmacy v. All Plaintiffs Below Facts: Certified Question to Supreme Court from Mingo Circuit Court Issue: Whether Individuals Addicted to Controlled Substances Can Bring a Claim Against Medical Providers For Allegedly Causing Their Addition and Related Criminal Activity Ruling: Court Held That The Actions Were Not Barred by the Wrongful Conduct Rule and Issues of Causation, Relative Fault and Damages Were Jury Issues
Other Legislation Affecting Physicians Senate Bill 15-2016 Sellers and Manufactures of Pharmaceuticals are Not Liable for Inadequate Warnings If the Seller or Manufacturer Provides That Information to a Physician Shifts Duty to Warn From Manufacturer to Physician Reinstates the Learned Intermediary Rule in WV
Other Legislation Affecting Physicians Senate Bill 7-2016 No Action Related to the Prescription or Dispensation of Controlled Substances May Be Maintained Against a Healthcare Provider by or on behalf of a Person Whose Damages Arise as a Proximate Result of a Violation of the Uniform Controlled Substance Act Unless the Provider Violated the Law When Prescribing or Dispensing the Drug and That Violation Caused the Plaintiff s Injury Attempt by Legislature to Protect Physicians and Pharmacists from Tug Valley Claims
Other Legislation Affecting Physicians Senate Bill 627-2016 Allows Physicians to Decline to Prescribe Controlled Substances to Patients or to Decline to Continuing Prescribing Them Limits Liability of Medical Providers Who Prescribe in Accordance with FDA Recommendations
Other Legislation Affecting Physicians House Bill 4463-2016 Allows a Patient-Physician Relationship to be Established Through Real-Time Videoconferencing Prohibits Prescriptions of Schedule II Medications or Any Pain Relieving Controlled Substance Based Solely on Telemedicine Encounters