Senate Bill 338 was introduced February 16, 2017 and amends several statutory provisions of the West Virginia Medical Professional Liability Act ("MPLA"). W. Va. Code § 55-7B-1 et seq. The bill provides a statutory definition of "occurrence;" sets forth a shortened statute of limitations and preferred venue for claims brought against nursing homes, assisted living facilities, and other related entities; and regulates attorneys' contingency fees based on amounts recovered.
The bill defines "occurrence" broadly and includes all treatment related to the alleged injury or injuries, including follow up care, and whether those injuries arose during one encounter or over the course of many. This new definition primarily would be expected to affect the damages caps that the MPLA already has established on a "per occurrence" basis. For example, the MPLA has set forth "per occurrence" trauma caps (W. Va. Code § 55-7B-9c) and noneconomic damages caps (W. Va. Code § 55-7B-8).
The bill also would establish a one-year statute of limitations period (as opposed to the two-year statute already established by the MPLA) for medical professional liability claims against nursing homes, assisted living facilities, and other related entities. Moreover, all claims against them would have to be filed in the county where the nursing home or other facility is located and the alleged malpractice occurred. The bill does not affect a party's ability to remove a case to federal court, however.
Finally, the bill would establish a ceiling on contingency fees attorneys could collect based on the amount recovered in the action. The limits are as follows:
$50,000 or less recovered 33 ½ %
$50,001 to $100,000 recovered 25%
$100,001 to $600,000 recovered 20%
$600,000 or more recovered 15%
These limits would apply regardless of whether the amount was recovered by settlement, arbitration, or judgment. These caps apply uniformly to recoveries on behalf of a "responsible adult, an infant, or a protected person." The amount "recovered" means the net sum recovered after deducting any disbursement or costs incurred in connection with prosecution or settlement of the claim. Costs of medical care are not deductible disbursements or costs for this purpose.
If passed, the bill would apply to all causes of medical professional liability claims filed on or after July 1, 2017.
The bill passed the Senate and was introduced in the House on March 9th with some notable changes. The Committee Substitute bill first has broadened the one-year statute of limitations to specifically include claims against "a distinct part of an acute care hospital providing intermediate care or skilled nursing care or its employees." These parts of facilities are in addition to nursing homes, assisted living facilities, and related entities.
The current version of the bill also has eliminated the contingency fee provisions. The remainder of the bill remains substantially unchanged.
Senate Bill 338 was sent to Governor Jim Justice on April 3, 2017. In summary, the bill's final version would make the following changes to medical professional liability claims under the Medical Professional Liability Act ("MPLA"), W. Va. Code §§ 55-7B-1 et seq:
- It would provide a broad definition of "occurrence," primarily to avoid the filing of multiple lawsuits arising from the same course of treatment and preventing plaintiffs from circumventing damages caps by potentially recovering the cap for each separate lawsuit.
- It would provide for a one-year statute of limitations period for medical professional liability claims against nursing homes, assisted living facilities, their related employees or a distinct part of an acute care hospital providing intermediate care or skilled nursing care or its employees.
- It would require a lawsuit against the above-referenced facilities to be filed in the circuit court of the county in which it is located.
- It would provide new pre-suit requirement timelines. The MPLA typically has required the notice of claim and screening certificate of merit to be provided to health care providers simultaneously. However, the MPLA also provided that a claimant may provide a screening certificate of merit within 60 days after the health care provider received the notice of claim, but only in cases where serving them simultaneously was not feasible due to time constraints. Senate Bill 338 created a similar provision for suits against nursing homes and related facilities and allows the screening certificate of merit to be provided within 180 days, rather than 60.