Opinion by WV Supreme Court in Boggs v. Camden Clark Memorial Hospital

The West Virginia Supreme Court of Appeals issued a decision in the Boggs v. Camden Clark case which I orginally reported on back in an October 2004 blog post. As you will recall, this was the first case to be heard by the Court challenging several medical liability reform provisions enacted by the West Virginia Legislature in recent years.



The case involved a plaintiff whose suit was dismissed by a Circuit Court Judge in Wood County when the plaintiff's counsel failed to provide a signed certificate of merit statement from a physician and failed to serve the notice of claim by certified mail. Both the signed certificate of merit and the requirment that the notice be sent by certified mail were requirements put into law under HB 601 which passed on December 1, 2001 after a 5-week special session dealing specifically with our state's liability insurance crisis. These reforms were then followed in 2003 by the passage of HB 2122 which enacted more significant reforms including lowering the caps on damages.



The 4 to 1 decision (Justice Maynard dissenting) found in favor of the plaintiffs . The decision permitted the plaintiff to amend his complaint, and allowed the reinstated complaint to be governed by the Medical Professional Liability Act II (prior to the reduction of the caps of damages).



To read the opinion issued by the court and the dissent issued by Justice Maynard, you may access the Supreme Court's web page by clicking on the link below.



Following is a AP news article from the Clarleston Gazette regarding the decision:



AP - 12/9

Supreme Court revives malpractice lawsuit



CHARLESTON, W.Va. (AP) -- A paperwork error was not serious enough to force the dismissal of a medical malpractice lawsuit filed by the family of a woman who died at a Parkersburg hospital, the state Supreme Court has ruled.



A Wood County judge had tossed out the June 29, 2003, lawsuit filed by the family of Hilda Boggs because a lawyer gave Camden Clark Memorial Hospital written notice 27 days prior to filing the lawsuit, when state law requires 30 days notice.



The high court ruled 4-1 Wednesday to revive the lawsuit. Writing for the majority, Justice Warren McGraw said the hospital had known since February 2002 that the family intended to file a lawsuit.



Boggs' family can seek $1 million in damages for pain and suffering allegedly caused by her 2001 death at Camden Clark.



If the family had to refile the lawsuit, a state law that took effect July 1, 2003, would have capped the non-economic damages at $500,000.



Boggs, a 50-year-old teacher, was hospitalized after breaking her ankle in a fall at Mineral Wells Elementary School.

HHS to Issue Additional HIPAA Rules

According to an article in the December 14, 2004 report from Health Data Management HHS is set to publish four additional HIPAA Rules in the coming months.



The proposed rules include:

• A rule to set standards for electronic claims attachments, expected in January 2005;
• A rule to enforce HIPAA administrative simplification provisions, set for February 2005;
• A rule to establish a national identifier for health plans, set for April 2005; and
• A rule to regularly revise the HIPAA transactions and codes sets rule, scheduled for June 2005.

These additional regulations will apply to all covered entities who are now complying with the privacy rules which went into effect in 2003. Health care providers will need to monitor these new regulations and the impact they may have on business operations.

Another Blog on HIPAA Issues

I ran across HIPAA Blog covering medical privacy issues involving the Privacy Standards under the Health Insurance Portability and Accountability Act of 1996 (HIPAA) and other technology and legal tidbits. I have found the content on the blog excellent and look forward to watching developments posted on this blog. The blog is authored by Jeffrey Drummond of Jackson Walker, LLP in Dallas, TX.

Office of West Virginia Attorney General Announces New Prescription Drug Comparision Web Site

I noticed on a couple of articles, including an article by IHealthBeat.org, that the Office of West Virginia Attorney General has created a prescription drug comparison web site. The Associated Press reported that the Attorney General announced the purpose of the website was to educate consumers and help them reduce drug costs.



According to the Associated Press article, the site includes a list of 24 commonly prescribed drugs and their full retail prices at pharmacies across the state. It also features links to state and federal prescription drug discount programs.



It appears that the information is based upon a survey of various pharmacies around the state of West Virginia. You can view a list of the pharmacies that participated in the survey.



Following is the introductory information posted on the new website:



"According to statistics supplied by the Robert C. Byrd Institute for Health Policy Research, on any given day approximately 425,107 West Virginians (40,637 children, 292,599 non-elderly adults, and 91,871 older adults) go without prescription drug coverage. These citizens have to pay the full retail price for medications out of their own pockets. Additionally, there are many West Virginians who do have health insurance but lack adequate coverage for prescription drugs and must buy them at full price. If you are one of these citizens or a caregiver for one of them, this site may be a useful tool that you will find helpful.



On this site, you will find results of surveys of the prices of commonly prescribed prescription drugs at pharmacies in various counties across the state. To find the prescription drug prices at pharmacies surveyed by our office, use the search option on the top or bottom of this page to get started.



This information will show you the value of comparison-shopping among pharmacies to get the best price for your prescription drugs. Remember, this is a voluntary program and we do not have survey results from every pharmacy in the state. Keep in mind that prices change frequently. Always call or visit your pharmacy to find out the price before buying your medication . . ."

WV Launches One Stop Online Business Registration

I was glad to see an announcement last week regarding the a new web portal which allows businesses to register online to operate in West Virginia. The web portal called Business4WV.com appears to aggregate the registration process for various West Virginia state agencies, including the forms required by West Virginia Secretary of State Office, West Virginia State Tax Department, Workers' Compensation Commission and Bureau of Employment Programs.



I haven't registered for a Business4WV Account to manage the business filings that I do on behalf of clients so I can't give you a detailed review of how well the new system works -- but I plan to register soon and give it a try. Anything that can make the process easier for businesses in West Virginia and businesses wanting to come to West Virginia to register will be an improvement over the current system which allows limited online filing, requires hard copy filings and does not provide a coordinated system of one-stop registration.



The new system was created by Tygart Technology, Inc. which has provided a summary of how the new e-government system works. The company describes the system as an enterprise-wide Business-to-Government (B2G) Exchange designed to host a large number of e-services (including e-filings) offered by numerous state agencies. Currently the project integrates the filings involving the four state government agencies listed above.



The Business Organization Division of the Secretary of State was typically the place that most attorneys or others start to create and register a new legal entity, authorize an entity to do business in West Virginia, reserve a business name, etc. You then were required to complete the Business Registration Application (WV/BUS-APP) and foward the form to the West Virginia State Tax Department who would establish an account for the new entity and forared the form to other state agencys, such as, Workers' Compensation and Unemployment Compensation. Depending on the type of entity and the business involved you often had to then make additional filings with licensure boards, local/municipal licensing agencies, etc.

AMA News Report on WV Tort Reform Challenge

In today's online version of the American Medical News (amednews.com) there is an article discussing the challenges in various state courts to recently enacted legislative medical liability tort reform, including the appeal of Boggs v. Camden-Clarke Memorial Hospital, et al. before the West Virginia Supreme Court of Appeals.



If you want to read the individual briefs filed by the Appellant and Appellee in this case you can find them on the West Virginia Supreme Court of Appeals Argument Docket for November 9, 2004.



For those of you interested in the tort reform issues in West Virginia the decision in this case will be interesting to watch.

WV Supreme Court of Appeals Provides Access to Scanned Copies of Briefs

The West Virginia Supreme Court of Appeals has added a new feature to its website. The Court now provides access to scanned PDF copies of the briefs filed in particular matters on appeal with the Court. Links to the briefs filed in a particlar matter appear under the Court Calendar and Docket page. You must pull up the particular month and day of the scheduled arguments to locate the filed briefs. For example, the briefs filed in matters argued before the Court on November 9, 2004 can be found here.



It is great to see the staff at the West Virginia Supreme Court of Appeals take the lead nationally on technology issues in the court system. Now that briefs can be accessed via the web I would suggest that the Court add a wi-fi connection at the Court so that you can access the briefs and other important Court information while you are waiting for your argument on the docket. I suspect that the Clerk of the Court, Rory Perry, who is leading the charge on technology issues for the Court likely has plans to add wi-fi cabability in the future.



I want to thank another West Virginia blogger, Brian Peterson, for bringing this new feature to my attention on his West Virginia Legal Weblog.