Health Law Monitor

Supreme Court to Decide Whether Federal Courts Will Enforce State Statutes Requiring Pre-Suit Affidavits Against Health Care Providers

March 10, 2025

On March 10, 2025, the Supreme Court of the United States agreed to hear Berk v. Choy, No. 23-1620, 2024 U.S. App. LEXIS 18336 (3d Cir. July 25, 2024), a case over whether a Delaware statute which requires service of an affidavit of merit before a claimant can sue a health care provider will be applied in cases filed in federal court.   This is important to health care providers because the Supreme…

CCPA in Professional Liability Claims

August 21, 2024

In an effort to get around the American Rule of no recovery for attorney fees on negligence claims, an avenue sometimes explored is the addition of a claim under the Colorado Consumer Protection Act, C.R.S. §6-1-101 et seq. The Act provides for recovery of attorney fees by a successful plaintiff (but not a successful defense unless the claim is frivolous), and treble damages. C.R.S. §6-1-113(2).…

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…