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WV Legislature Amends Comparative Fault and Medical Professional Liability Acts

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The West Virginia State Legislature recently passed amendments to WV Code § 55-7-13d (the "Comparative Fault Act") and § 55-7B-5 of the Medical Professional Liability Act. This alert serves to highlight the changes to these two code provisions.

First, the following amendments were enacted to the Comparative Fault Act, which will affect causes of action arising or accruing after May 24, 2016:

  • Explicitly removing dollar-for-dollar setoffs representing prejudgment settlement amounts when jurors assess non-party liability at trial. This change removes the previous version's apparent grant of both a proportionate verdict reduction based on a percentage of a non-party’s liability and an implicit dollar-for-dollar setoff based on the total amount of settlement value between plaintiffs and settling parties. Conversely, now the total verdict may only be reduced by a jury's assessment of a non-party's proportionate fault at trial.
  • Clarifying the intent of the previous version to provide for a complete bar against all recovery for all damages resulting from all injuries occurring during the commission or flight from a felony or violent misdemeanor and explicitly including wrongful death actions under the Act.
  • Providing for a mandatory stay of a civil action, upon motion by a defendant, during the pendency of any criminal action that forms the basis of the support of the complete bar to recovery as noted above.
  • Correcting the non-party liability notification requirement from the previous "108" days to the more logical "180" days.

Second, the following amendments were enacted to the Medical Professional Liability Act:

  • Providing for a complete defense for actions against health care providers (including pharmacies) related to the prescription or dispense of controlled substances when a plaintiff’s damages arise as a proximate result of his or her violation of the Uniform Controlled Substances Act, similar state and federal law, or the commission of felonies and violent misdemeanors.
  • Limiting such defense if a plaintiff proves that health care providers (or pharmacies) prescribed or dispensed controlled substances, which were the proximate cause of a plaintiff's injuries, in violation of the Uniform Controlled Substances Act and/or similar state and federal law.  However, it remains unclear if the amendment requires a plaintiff to make a prima facie showing of such violations, in order to avoid motions to dismiss or motions for summary judgment.

Click here to read the full text of Senate Bill 7, which was passed on February 24, 2016.

Please contact the authors for more information regarding how these changes could affect your business.

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