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Student-athlete medical aid still divisive

After months of discussion on a compromise bill, doctors and lawyers are still at loggerheads over the best way to protect medical professionals who treat injured student-athletes from malpractice lawsuits.

A bill governing how school athletic officials deal with students who suffer concussions in games died in the waning hours of the last legislative session. The disagreement was the main reason.

Doctors and lawyers in the Legislature could not resolve differences over whether medical professionals should have some protection from such lawsuits, so the bill never came up for a vote.

Nine months later, the plaintiffs bar and medical representatives are still sharply divided on the matter.

Doctors say they are less likely to render aid at athletic events if they know they could be open to lawsuits. Lawyers say plaintiffs should not be forced to give up their legal rights to file a lawsuit should something go wrong.

On Monday, a legislative subcommittee studying matters of student wellness met to review potential legislation that would limit liability in such cases.

The proposed legislation caps the amount a volunteer team physician or other medical professional who renders emergency care at an athletic event can be sued at the maximum limit of that doctor's medical liability insurance coverage.

The proposal would also allow volunteer team physicians to be covered by a county school board's liability policy through the state Board of Risk and Insurance Management, in addition to their private malpractice insurance.

However, other doctors who may happen to be attending an event would not have that coverage.

Anthony Majestro, an attorney and vice president of the West Virginia Association for Justice, helped draft the legislation. He said he believed volunteer team physicians already had coverage under school board policies but the new proposal makes that even more clear.

Right now, physicians must sign an agreement with a school if they would like to be able to render emergency aid at a game. The proposal would eliminate that requirement, Majestro said.

Boone County Democratic Sen. Ron Stollings, a doctor, sharply criticized the draft.

Stollings, who has spontaneously responded to emergencies at athletic events in the past, said Majestro's proposal still left doctors with too much legal liability.

Stollings preferred granting doctors who spontaneously respond to injuries at sporting events immunity from lawsuits. If that were not possible, he would prefer that BRIM pick up the doctor's liability coverage. 

"I thought our intent was that we would be covered by BRIM and we would not have any civil liability beyond what BRIM covers, and this does not do that," Stollings said.

He said the proposal contains "extreme vagueness" that would still make doctors think twice about rendering care.

"I certainly appreciate the fact that we're trying to move forward on this, but if anything I think this is a step backwards," Stollings said.

There are Good Samaritan laws that protect people who respond to emergencies. However, Majestro noted that some non-life threatening injuries, such as a broken ankle or sprain, might not be covered under that law.

Majestro also said allowing liability insurance coverage, instead of blanket immunity, had some benefits.

"I think this bill is still a good thing for those who seek to be volunteers because insurance coverage provides you a coverage that immunity doesn't, because they pay for the lawyers," he said. "The existence of the BRIM coverage provides both the indemnity and the defense to the action should somebody file a suit."

Sen. Bob Plymale, D-Wayne, said he didn't want children to miss out on immediate medical attention because doctors were worried about being exposed to lawsuits.

He said the state should give doctors enough liability coverage so they won't hesitate.

"I want to make sure we cover them," Plymale said.

He said he agreed with Stollings' approach to provide either immunity or BRIM coverage to any medical professionals who spontaneously respond to events.

The committee's staff will continue working on the plan and provide lawmakers with an updated draft during January interim meetings.

Plymale said he hoped the new draft would take care of some of the concerns Stollings brought up.

"We really would like to take care of it to the fullest extent so that in January when we come back we can have a bill that can go before the full committee and can be voted on and we're not going to have a fight like we did with the last session," he said.


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