Jackson Kelly PLLC

Health Law Monitor

Litigation and medical malpractice defense

The Right to Recover Pre-Majority Medical Expenses

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

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 8th, 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 The bill dispenses with the practice agreement requirement.2  Now repealed, W. Va.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

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

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

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

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

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

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…

Senate Bill 6 and its Impact on Health Care Professionals

The West Virginia Legislature recently amended the Medical Professional Liability Act, W.Va. Code 55-7B-1, et seq. (“MPLA”) through Senate Bill 6.  These amendments accomplished several things including broadening the statutory definitions of “health care provider” and “health care” to encompass a wider range of health care professionals, health care related activities, and provide MPLA…

 

© 2021 Jackson Kelly PLLC. All Rights Reserved.