Health Law Monitor

The Fourth Circuit Rejects Pre-Suit Notice and Screening Requirements in Medical Professional Liability Actions

November 28, 2023

West Virginia’s Medical Professional Liability Act (“MPLA”), W. Va. Code § 55-7B-1, et seq., implements tort reform in medical malpractice actions. Pursuant to the MPLA, plaintiffs must serve two documents, a Notice of Claim and Screening Certificate of Merit, on each health care provider they intend to sue at least thirty days prior to filing a medical professional liability action.[1] The…

Supreme Court of Appeals of West Virginia Upholds Peer Review Privilege

June 16, 2023

The Supreme Court of Appeals of West Virginia issued a new opinion affirming the ban on discovery and use of peer review under West Virginia Code §30-3C-3.  In an opinion by Justice Bunn in Toler v. Cornerstone Hospital of Huntington, No.  No. 21-0830 (June 15, 2023), the Court held that the trial court correctly ruled that the plaintiff was not entitled to obtain an incident report related to a…

IMPACT OF LICENSING BOARD COMPLAINTS ON MALPRACTICE CLAIMS

August 3, 2022

Licensing boards provide consumer protection in the form of regulation, but do not provide compensation.  Patients who claim harm from malpractice use the civil court system to seek compensation.  Board complaints are sometimes used by claimants to further a malpractice claim.  The potential of civil liability is an important consideration when handling a board action, highlighting the need for…

WV Supreme Court Reinforces Mandatory Pre-Suit Requirements in Medical Professional Liability Actions

July 12, 2022

West Virginia’s Medical Professional Liability Act (MPLA), W. Va. Code 55-7B-6(b), provides that at least thirty days before filing suit, a claimant must serve two pre-suit documents - a Notice of Claim and a Certificate of Merit - on each health care provider they intend to sue.  Timely compliance with the statute can “toll” or extend the applicable statute of limitations.  In Adkins v. Clark, No.…

The Right to Recover Pre-Majority Medical Expenses

August 20, 2021

Under Colorado law, the statute of limitations applicable to a minor’s cause of action for medical negligence does not begin to run until the minor reaches the age of eighteen, unless the minor has a court-appointed legal representative.¹  An injury to a minor child essentially generates two separate causes of action: one for the pre-majority medical expenses; and one for post-majority medical…

Preparing for the Implementation of West Virginia's Physician Assistants Practice Act

June 30, 2021

The West Virginia Legislature passed Senate Bill 714 (“SB 714”) on April 9, 2021. The Governor signed the bill on April 21, 2021, and it will become effective on July 8^th, 2021. SB 714 amends certain provisions relating to the Physician Assistants Practice Act.¹  The key amendments are summarized below:

1. The bill dispenses with the practice agreement requirement.²  Now repealed, W. Va. Code §…

Documenting the Standard of Care during a Pandemic

March 11, 2020

The Coronavirus (COVID-19) is spreading through the United States, and the CDC is forecasting continued infection. More and more people could develop symptoms and arrive at hospitals for help. So, what do we know about the standard of care for healthcare providers in these scenarios?

In most states, standard of care is defined by statute and is typically described as that level of care that a…

WV Supreme Court Dismisses Medical Professional Liability Claim Where Patient Left AMA

November 11, 2019

In Kruse v. Farid, Slip. Op. No. 18-0464 (W.Va. Nov. 8, 2019), the Supreme Court of Appeals of West Virginia affirmed summary judgment “finding that [the defendant physician] did not have a duty to provide follow-up medical care after Ms. Kruse left Raleigh General Hospital against medical advice (‘AMA’).”

After Dr. Farid performed a procedure which included the placement of stents that had to be…

West Virginia Legislature Clarifies 1% Assessment Pursuant to W. Va. Code § 29-12D-1a

May 21, 2018

Since W. Va. Code § 29-12D-1a went into effect on July 1, 2016, there has been disagreement among counsel as to which party is responsible for paying the 1% assessment when a medical malpractice case is settled prior to trial.  According to W. Va. Code § 29-12D-1a(c)(3) (2016), “[f]or any assessment levied pursuant to this subsection on a settlement entered into by the parties, the date on which…

West Virginia Supreme Court Clarifies Statutory Peer Review Privilege

February 17, 2016

On February 9, 2016, the West Virginia Supreme Court (“Supreme Court”) decided State ex rel. Wheeling Hospital, Inc. v. Wilson, No. 15-0558 (W. Va. February 9, 2016), which took up the issue of the Peer Review Privilege codified at W. Va. Code § 30-3C-1 et seq.  In clarifying the meaning of the language contained in West Virginia’s Peer Review Statute, the Supreme Court recognized “an urgent need…

SCOTUS Rules In Favor Of ACA

June 25, 2015

In the landmark case of King v. Burwell, the United States Supreme Court has upheld the ability of federally-run insurance exchanges to offer federal subsidy monies to Americans seeking health coverage under the Affordable Care Act. The vote was 6-3, with Justices Alito, Scalia, and Thomas dissenting. Justice Kennedy joined Chief Justice Roberts and the majority from the National Federation of…

Ex-Parte Contacts with Treating Physicians in Kentucky

June 24, 2015

The Kentucky Supreme Court rendered an opinion on June 11, 2015, establishing the law in Kentucky on ex parte communications with a party’s non-expert treating physician, i.e. interviewing the Plaintiff’s treating physicians in advance of a deposition.  In Caldwell v. Hon. A.C. McKay Chauvin, the plaintiff in an underlying medical negligence action sought a writ from the Kentucky…