2004 Virginia Legislative Update

Published on: 7/14/2004

July 14, 2004

In a session best remembered for debate over Virginia's biennial budget, the 2004 session of the General Assembly did enact laws of interest to physicians, health care facilities and liability carriers. Unless otherwise noted, all enactments became effective July 1, 2004.

In a surprising move in response to the availability crisis created by the liquidation of a prominent Virginia carrier, §2.2-1839.1 was enacted, providing that certain qualified physicians and sole community hospitals may purchase medical malpractice insurance from the risk management plan administered by the Virginia Department of Treasury. The provisions of the bill are not effective until July 1, 2006.

The General Assembly provided relief from liability by adding a new §54.1-2962.2, which provides that the physician-patient relationship created by virtue of an on-call physician or his agent evaluating or treating the patient in an emergency room is terminated upon discharge of the patient from the emergency room.

In an effort to further reduce the financial impact on defendants of the voluntary case dismissal by non-suit, the pre-trial dismissal "window" in which the plaintiff may avoid an assessment of fees and travel costs of expert witnesses scheduled to appear at trial was increased from five to seven days.

The General Assembly amended the provisions of §8.01-262 regarding permissible venue to provide that a defendant may be sued in a city or county wherein he conducts "substantial business activity" as opposed to where he "regularly conducts affairs or business activity." This moderates, to some extent, forum shopping by plaintiffs.

An amendment to §8.01-581.17 extends the privileges of confidential communications to quality assurance or peer review committees established under (1) a national or state peer review entity, (2) a national or state accreditation entity, (3) a national professional association of health care providers or Virginia chapter of such an association, (4) an MCHIP licensee and (5) a statewide or local association representing health care providers licensed in Virginia.

The statutes controlling certificates of public need were amended to modify the criteria relating to the extent to which the project will be accessible to all residents of the area proposed to be served by a medical care facility to require the Commissioner of Health to consider the effects on accessibility on any proposed relocation of an existing service or facility.

A number of bills which did not pass in 2004 may be seen again in 2005. HB 1226, a bill to create immunity from liability for physicians rendering indigent health care, was passed by indefinitely by the House Committee for Courts of Justice. HB 1484, a bill requiring that all parties attend and participate in a medical malpractice review panel hearing, was tabled by the House Committee for Courts of Justice. The same committee failed to report out HB 1126, a bill to permit motions for summary judgment to be based upon depositions. This committee also continued until 2005 HB 495, a bill requiring the party requesting issuance of a witness summons to a treating physician to pay the physician's costs and expenses incurred in responding to the summons, including fees and costs associated with health care services that are cancelled or rescheduled.

One piece of legislation stricken from the docket of the House Committee on Health, Welfare and Institutions in the 2004 session is unlikely to reappear in 2005. This is HB 521, a bill to require, as a condition of licensure, that each hospital report medical errors committed by physicians and other health care providers granted privileges to practice at the hospital.