Health Law Monitor

Senate Bill 6 and its Impact on Health Care Professionals

April 7, 2015

By: Laurie K. Miller

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 protections to entities related to health care providers. Statutory prerequisites for expert testimony were also strengthened. Senate Bill 6 was, at least in part, the Legislature’s response to a series of decisions of the Supreme Court of Appeals of West Virginia which narrowly interpreted the MPLA, creating a class of claims against health care providers falling outside the MPLA, most notably Manor Care v. Douglas. In Manor Care, the West Virginia Supreme Court of Appeals affirmed a jury verdict apportioning an award against a nursing home between “ordinary” and “medical” negligence, and then applying the MPLA only to the portion for “medical” negligence. Below is a summary of a few of the changes to the MPLA occasioned by Senate Bill 6.

First, as indicated above, Senate Bill 6 substantially amended the definition of “health care.” The existing subsection (e) stated “health care… means any act or treatment performed or furnished, or which should have been performed or furnished, by any health care provider for, to or on behalf of a patient during the patient's medical care, treatment or confinement.” The amendment changes the “any act or treatment” language to “any act, service or treatment,” and broadens the definition to include those “pursuant to or in furtherance” of a plan of care or under the direction of a health care provider “for, to or on behalf” of a patient “during the patient’s medical care, treatment or confinement.” The amendment also provides “health care” includes but is not limited to “staffing, medical transport, custodial care or basic care, infection control, positioning, hydration, nutrition and similar patient services….” Finally, the amendment includes in the definition “[t]he process employed by health care providers and health care facilities for the appointment, employment, contracting, credentialing, privileging and supervision of health care providers.”

Senate Bill 6 also amended section 55-7B-2(g) by adding pharmacists and certified nursing assistants to the definition of “health care provider.” It also adds “any person supervised by or acting under the direction of a licensed professional in a health care facility” in an effort to ensure that persons who carry out orders are subject to the MPLA.

The definition of “medical professional liability,” was also expanded to include “other claims that may be contemporaneous to or related to the alleged tort or breach of contract or otherwise provided, all in the context of rendering health care services.”

These changes expand (and are intended to expand) the definition of health care and medical professional liability to ensure the MPLA applies to services typically provided to patients in hospitals and nursing homes as part of the overall plan of care, but which could be considered “ordinary” negligence under Manor Care v. Douglas. In Manor Care, the plaintiffs’ claims included understaffing and failure to provide adequate nutrition and hydration. Lawyers for the Douglas family argued these services were not “health care” but rather “ordinary negligence.” They argued that there was evidence as to how non-healthcare decisions like staffing and budgets affected Ms. Douglas’s care. The jury was then allowed to apportion by percentage between “medical” and “ordinary” negligence, with the MPLA applying only to the percentage of the award of noneconomic loss that was “medical” negligence.

Senate Bill 6 also extended the application of the MPLA applies to other corporate entities related to the health care provider or facility which treats the patients, including parent and sister corporations. This was an issue in the Manor Care decision where claims against “non-health care provider” corporations, such as services provided by a related management company, were held not protected by the MPLA. The plaintiff argued these entities were not health care providers or facilities and were therefore not entitled to the protection of the MPLA. “Related entity” is now defined as “any corporation, foundation, partnership, joint venture, professional limited liability company, limited liability company, trust, affiliate or other entity under common control or ownership, whether directly indirectly, partially or completely, legally, beneficially or constructively, with a health care provider or health care facility; or which owns directly, indirectly, beneficially or constructively any part of a health care provider or health care facility.” The concept of related entity is also found in the amendment to section 55-7B-2(f):

(f) "Health care facility" means any clinic, hospital, nursing home or assisted living facility, including personal care home, residential care community and residential board and care home, or behavioral health care facility or comprehensive community mental health/mental retardation center, in and licensed by the State of West Virginia and any state-operated institution or clinic providing health care and any related entity to the health care facility.

These changes are important to nursing homes, which have individual buildings or facilities which are generally owned by parent entities, and have certain services provided by separate corporations, such as budgeting and management services. These changes can also be important to hospitals as they will ensure the MPLA applies to related entities in a hospital system, or which are designed to provide services to several hospitals, and more particularly to entities set up to employ physicians. The changes reflect the evolving way of providing health care services and provide the MPLA is applicable.

Senate Bill 6 also strengthens expert witness requirements in MPLA cases. Specifically, Senate Bill 6 adds a requirement in §55-7B-7(a)(4) that “the expert witness’s opinion is grounded on scientifically valid peer reviewed studies, if available.”

Senate Bill 6 also created new rebuttable presumptions (§55-7B-7a)against the introduction of certain information “unless it applies specifically to the injured person or it involves substantially similar conduct that occurred within one year of the particular incident involved….” This section is intended to stop the introduction of state and federal investigative reports, disciplinary actions, accreditation reports or assessment of penalties unless they apply to the injured person or substantially similar conduct within one year of the incident involved. It prohibits the introduction of evidence about staffing levels if state staffing requirements are met. Finally, even if the evidence satisfies these provisions, it may only be admitted if there is a final order which is otherwise admissible under the West Virginia Rules of Evidence.

This new statute also provides that where a health care facility or health care provider “demonstrates compliance with minimum staffing requirements under state law, the health care facility or health care provider is entitle to a rebuttable presumption that appropriate staffing was provided.”

Senate Bill 6 is an extremely important bill, particularly for hospitals and long-term care facilities and requires close examination. How it will be interpreted and whether all of the changes will pass constitutional muster in the courts remains to be seen.

Laurie K. Miller, CMSP | Counsel | Jackson Kelly PLLC

500 Lee Street East, P.O. Box 553, Suite 1600 | Charleston, WV 25301-0553 | www.JacksonKelly.com

Thomas J. Hurney, Jr. | Member | Jackson Kelly PLLC

500 Lee Street East, Suite 1600 | Charleston, WV 25301-3202 | www.JacksonKelly.com

Attorneys