§55-7B-1. Legislative findings and declaration of purpose.
§55-7B-4. Health care injuries; limitations of actions; exceptions; venue.
§55-7B-5. Health care actions; complaint; specific amount of damages not to be stated; limitation on bad faith claims; filing of first party bad faith claims; when plaintiff’s criminal conduct bars recovery.
§55-7B-6. Prerequisites for filing an action against a health care provider; procedures; sanctions.
§55-7B-6a. Access to medical records.
§55-7B-6b. Expedited resolution of cases against health care providers; time frames.
§55-7B-7. Testimony of expert witness on standard of care.
§55-7B-7a. Admissibility and use of certain information.
§55-7B-9a. Reduction in compensatory damages for economic losses for payments from collateral sources for the same injury.
§55-7B-9b. Limitations on third-party claims.
§55-7B-9c. Limit on liability for treatment of emergency conditions for which patient is admitted to a designated trauma center; exceptions; emergency rules.
§55-7B-9d. Adjustment of verdict for past medical expenses.
§55-7B-10. Effective date; applicability of provisions.
§55-7B-12. Self-funding program; requirements; minimum standards.
(3) The authority of medical licensing boards to effectively regulate and discipline the health care providers under such board.
(a) “Board” means the State Board of Risk and Insurance Management.
(4) Any contractual or voluntary wage continuation plan provided by an employer or otherwise or any other system intended to provide wages during a period of disability.
(c) “Consumer Price Index” means the most recent Consumer Price Index for All Consumers published by the United States Department of Labor.
(d) “Emergency condition” means any acute traumatic injury or acute medical condition which, according to standardized criteria for triage, involves a significant risk of death or the precipitation of significant complications or disabilities, impairment of bodily functions or, with respect to a pregnant woman, a significant risk to the health of the unborn child.
(3) The process employed by health care providers and health care facilities for the appointment, employment, contracting, credentialing, privileging and supervision of health care providers.
(f) “Health care facility” means any clinic, hospital, pharmacy, nursing home, assisted living facility, residential care community, end-stage renal disease facility, home health agency, child welfare agency, group residential facility, behavioral health care facility or comprehensive community mental health center, intellectual/developmental disability center or program, or other ambulatory health care facility, in and licensed, regulated or certified by the State of West Virginia under state or federal law and any state-operated institution or clinic providing health care and any related entity to the health care facility.
(g) “Health care provider” means a person, partnership, corporation, professional limited liability company, health care facility, entity or institution licensed by, or certified in, this state or another state, to provide health care or professional health care services, including, but not limited to, a physician, osteopathic physician, physician assistant, advanced practice registered nurse, hospital, health care facility, dentist, registered or licensed practical nurse, optometrist, podiatrist, chiropractor, physical therapist, speech-language pathologist, audiologist, occupational therapist, psychologist, pharmacist, technician, certified nursing assistant, emergency medical service personnel, emergency medical services authority or agency, any person supervised by or acting under the direction of a licensed professional, any person taking actions or providing service or treatment pursuant to or in furtherance of a physician’s plan of care, a health care facility’s plan of care, medical diagnosis or treatment; or an officer, employee or agent of a health care provider acting in the course and scope of the officer’s, employee’s or agent’s employment.
(h) “Medical injury” means injury or death to a patient arising or resulting from the rendering of or failure to render health care.
(i) “Medical professional liability” means any liability for damages resulting from the death or injury of a person for any tort or breach of contract based on health care services rendered, or which should have been rendered, by a health care provider or health care facility to a patient. It also means 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.
(j) “Medical professional liability insurance” means a contract of insurance or any actuarially sound self-funding program that pays for the legal liability of a health care facility or health care provider arising from a claim of medical professional liability. In order to qualify as medical professional liability insurance for purposes of this article, a self-funding program for an individual physician must meet the requirements and minimum standards set forth in section twelve of this article.
(k) “Noneconomic loss” means losses, including, but not limited to, pain, suffering, mental anguish and grief.
(l) “Occurrence” means any and all injuries to a patient arising from health care rendered by a health care facility or a health care provider and includes any continuing, additional or follow-up care provided to that patient for reasons relating to the original health care provided, regardless if the injuries arise during a single date or multiple dates of treatment, single or multiple patient encounters, or a single admission or a series of admissions.
(m) “Patient” means a natural person who receives or should have received health care from a licensed health care provider under a contract, expressed or implied.
(n) “Plaintiff” means a patient or representative of a patient who brings an action for medical professional liability under this article.
(o) “Related entity” means 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 or 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.
(p) “Representative” means the spouse, parent, guardian, trustee, attorney or other legal agent of another.
(2) Such failure was a proximate cause of the injury or death.
(b) If the plaintiff proceeds on the "loss of chance" theory, i.e., that the health care provider's failure to follow the accepted standard of care deprived the patient of a chance of recovery or increased the risk of harm to the patient which was a substantial factor in bringing about the ultimate injury to the patient, the plaintiff must also prove, to a reasonable degree of medical probability, that following the accepted standard of care would have resulted in a greater than twenty-five percent chance that the patient would have had an improved recovery or would have survived.
(a) A cause of action for injury to a person alleging medical professional liability against a health care provider, except a nursing home, assisted living facility, their related entities or employees or a distinct part of an acute care hospital providing intermediate care or skilled nursing care or its employees, arises as of the date of injury, except as provided in subsection (c) of this section, and must be commenced within two years of the date of such injury, or within two years of the date when such person discovers, or with the exercise of reasonable diligence, should have discovered such injury, whichever last occurs: Provided, That in no event shall any such action be commenced more than ten years after the date of injury.
(b) A cause of action for injury to a person alleging medical professional liability against a nursing home, assisted living facility, their related entities or employees or a distinct part of an acute care hospital providing intermediate care or skilled nursing care or its employees arises as of the date of injury, except as provided in subsection (c) of this section, and must be commenced within one year of the date of such injury, or within one year of the date when such person discovers, or with the exercise of reasonable diligence, should have discovered such injury, whichever last occurs: Provided, That in no event shall any such action be commenced more than ten years after the date of injury.
(c) A cause of action for injury to a minor, brought by or on behalf of a minor who was under the age of ten years at the time of such injury, shall be commenced within two years of the date of such injury, or prior to the minor’s twelfth birthday, whichever provides the longer period.
(d) The periods of limitation set forth in this section shall be tolled for any period during which the health care provider or its representative has committed fraud or collusion by concealing or misrepresenting material facts about the injury.
(e) Any medical professional liability action against a nursing home, assisted living facility, related entity or employee or a distinct part of an acute care hospital providing intermediate care or skilled nursing care or its employees shall be brought in the circuit court of the county in which the nursing home, assisted living facility or acute care hospital providing intermediate care or skilled nursing care, at which the alleged act of medical professional liability occurred is located, unless otherwise agreed upon by the nursing home, assisted living facility, related entity or a distinct part of an acute care hospital providing intermediate care or skilled nursing care and the plaintiff. Nothing in this subsection shall prohibit a party from removing the action to federal court.
(a) In any medical professional liability action against a health care provider no specific dollar amount or figure may be included in the complaint, but the complaint may include a statement reciting that the minimum jurisdictional amount established for filing the action is satisfied. However, any party defendant may at any time request a written statement setting forth the nature and amount of damages being sought. The request shall be served upon the plaintiff who shall serve a responsive statement as to the damages sought within thirty days thereafter. If no response is served within the thirty days, the party defendant requesting the statement may petition the court in which the action is pending to order the plaintiff to serve a responsive statement.
(b) Notwithstanding any other provision of law, absent privity of contract, no plaintiff who files a medical professional liability action against a health care provider may file an independent cause of action against any insurer of the health care provider alleging the insurer has violated the provisions of subdivision (9), section four, article eleven, chapter thirty-three of this code. Insofar as the provisions of section three of said article prohibit the conduct defined in subdivision (9), section four of said article, no plaintiff who files a medical professional liability action against a health care provider may file an independent cause of action against any insurer of the health care provider alleging the insurer has violated the provisions of section three of said article.
(c) No health care provider may file a cause of action against his or her insurer alleging the insurer has violated the provisions of subdivision (9), section four, article eleven, chapter thirty-three of this code until the jury has rendered a verdict in the underlying medical professional liability action or the case has otherwise been dismissed, resolved or disposed of.
(d) No action related to the prescription or dispensation of controlled substances may be maintained against a health care provider pursuant to this article by or on behalf of a person whose damages arise as a proximate result of a violation of the Uniform Controlled Substances Act, as set forth in chapter sixty-a of this code, the commission of a felony, a violent crime which is a misdemeanor, or any other state or federal law related to controlled substances: Provided, That an action may be maintained pursuant to this article if the plaintiff alleges and proves by a preponderance of the evidence that the health care provider dispensed or prescribed a controlled substance or substances in violation of state or federal law, and that such prescription or dispensation in violation of state or federal law was a proximate cause of the injury or death.
(a) Notwithstanding any other provision of this code, no person may file a medical professional liability action against any health care provider without complying with the provisions of this section.
(b) At least thirty days prior to the filing of a medical professional liability action against a health care provider, the claimant shall serve by certified mail, return receipt requested, a notice of claim on each health care provider the claimant will join in litigation. The notice of claim shall include a statement of the theory or theories of liability upon which a cause of action may be based, and a list of all health care providers and health care facilities to whom notices of claim are being sent, together with a screening certificate of merit. The screening certificate of merit shall be executed under oath by a health care provider qualified as an expert under the West Virginia rules of evidence and shall state with particularity: (1) The expert’s familiarity with the applicable standard of care in issue; (2) the expert’s qualifications; (3) the expert’s opinion as to how the applicable standard of care was breached; and (4) the expert’s opinion as to how the breach of the applicable standard of care resulted in injury or death. A separate screening certificate of merit must be provided for each health care provider against whom a claim is asserted. The person signing the screening certificate of merit shall have no financial interest in the underlying claim, but may participate as an expert witness in any judicial proceeding. Nothing in this subsection may be construed to limit the application of Rule 15 of the Rules of Civil Procedure.
(c) Notwithstanding any provision of this code, if a claimant or his or her counsel, believes that no screening certificate of merit is necessary because the cause of action is based upon a well-established legal theory of liability which does not require expert testimony supporting a breach of the applicable standard of care, the claimant or his or her counsel shall file a statement specifically setting forth the basis of the alleged liability of the health care provider in lieu of a screening certificate of merit.
(d) Except for medical professional liability actions against a nursing home, assisted living facility, their related entities or employees or a distinct part of an acute care hospital providing intermediate care or skilled nursing care or its employees, if a claimant or his or her counsel has insufficient time to obtain a screening certificate of merit prior to the expiration of the applicable statute of limitations, the claimant shall comply with the provisions of subsection (b) of this section except that the claimant or his or her counsel shall furnish the health care provider with a statement of intent to provide a screening certificate of merit within sixty days of the date the health care provider receives the notice of claim.
(e) In medical professional liability actions against a nursing home, assisted living facility, their related entities or employees or a distinct part of an acute care hospital providing intermediate care or skilled nursing care or its employees, if a claimant or his or her counsel has insufficient time to obtain a screening certificate of merit prior to the expiration of the applicable statute of limitations, the claimant shall comply with the provisions of subsection (b) of this section except that the claimant or his or her counsel shall furnish the health care provider with a statement of intent to provide a screening certificate of merit within one hundred eighty days of the date the health care provider receives the notice of claim.
(f) Any health care provider who receives a notice of claim pursuant to the provisions of this section may respond, in writing, to the claimant or his or her counsel within thirty days of receipt of the claim or within thirty days of receipt of the screening certificate of merit if the claimant is proceeding pursuant to the provisions of subsection (d) or (e) of this section. The response may state that the health care provider has a bona fide defense and the name of the health care provider’s counsel, if any.
(g) Upon receipt of the notice of claim or of the screening certificate of merit, if the claimant is proceeding pursuant to the provisions of subsection (d) or (e) of this section, the health care provider is entitled to prelitigation mediation before a qualified mediator upon written demand to the claimant.
(h) If the health care provider demands mediation pursuant to the provisions of subsection (g) of this section, the mediation shall be concluded within forty-five days of the date of the written demand. The mediation shall otherwise be conducted pursuant to rule 25 of the trial court rules, unless portions of the rule are clearly not applicable to a mediation conducted prior to the filing of a complaint or unless the Supreme Court of Appeals promulgates rules governing mediation prior to the filing of a complaint. If mediation is conducted, the claimant may depose the health care provider before mediation or take the testimony of the health care provider during the mediation.
(i)(1) Except for medical professional liability actions against a nursing home, assisted living facility, their related entities or employees or a distinct part of an acute care hospital providing intermediate care or skilled nursing care or its employees, and except as otherwise provided in this subsection, any statute of limitations applicable to a cause of action against a health care provider upon whom notice was served for alleged medical professional liability shall be tolled from the date of mail of a notice of claim to thirty days following receipt of a response to the notice of claim, thirty days from the date a response to the notice of claim would be due, or thirty days from the receipt by the claimant of written notice from the mediator that the mediation has not resulted in a settlement of the alleged claim and that mediation is concluded, whichever last occurs.
(2) In medical professional liability actions against a nursing home, assisted living facility, their related entities or employees or a distinct part of an acute care hospital providing intermediate care or skilled nursing care or its employees, except as otherwise provided in this subsection, any statute of limitations applicable to a cause of action against a health care provider upon whom notice was served for alleged medical professional liability shall be tolled one hundred eighty days from the date of mail of a notice of claim to thirty days following receipt of a response to the notice of claim, thirty days from the date a response to the notice of claim would be due, or thirty days from the receipt by the claimant of written notice from the mediator that the mediation has not resulted in a settlement of the alleged claim and that mediation is concluded, whichever last occurs.
(3) If a claimant has sent a notice of claim relating to any injury or death to more than one health care provider, any one of whom has demanded mediation, then the statute of limitations shall be tolled with respect to, and only with respect to, those health care providers to whom the claimant sent a notice of claim to thirty days from the receipt of the claimant of written notice from the mediator that the mediation has not resulted in a settlement of the alleged claim and that mediation is concluded.
(j) Notwithstanding any other provision of this code, a notice of claim, a health care provider’s response to any notice claim, a screening certificate of merit and the results of any mediation conducted pursuant to the provisions of this section are confidential and are not admissible as evidence in any court proceeding unless the court, upon hearing, determines that failure to disclose the contents would cause a miscarriage of justice.
(a) Within thirty days of the filing of an answer by a defendant in a medical professional liability action or, if there are multiple defendants, within thirty days following the filing of the last answer, the plaintiff shall provide each defendant and each defendant shall provide the plaintiff with access, as if a request had been made for production of documents pursuant to rule 34 of the rules of civil procedure, to all medical records pertaining to the alleged act or acts of medical professional liability which: (1) Are reasonably related to the plaintiff's claim; and (2) are in the party's control. The plaintiff shall also provide releases for such other medical records known to the plaintiff but not under his or her control but which relate to the plaintiff's claim. If the action is one alleging wrongful death, the records shall be for the deceased except inasmuch as the plaintiff alleges injury to himself or herself.
(b) Upon receipt and review of the records referred to in subsection (a) of this section, any party may make a written request to any other party for medical records of the plaintiff or the deceased related to his or her medical care and which are reasonably related to the plaintiff's claim. Such request shall be specific as to the type of record requested and shall be accompanied by a brief statement as to why its disclosure would be relevant to preparation of a claim or of a defense. The party receiving the request shall provide access to any such records under his or her control or a release for medical records for such records not under his or her control unless the party receiving the request believes that the records requested are not reasonably related to the claim.
(c) If a party receives a request for existing records he or she believes are not reasonably related to the claim, he or she shall provide written notice to the requesting party of the existence of such records and schedule a hearing before the court to determine whether access should be provided.
(d) If a party has reasonable cause to believe that medical records reasonably related to the claim of medical negligence exist and access have not been provided or a release has not been provided therefor, he or she shall give written notice thereof to the party upon whom the request is made, and if said records are not received within fourteen days of the written notice, obtain a hearing on the matter before the court.
(e) In the event a hearing is required pursuant to the provisions of subsection (c) or (d) of this section, the court at the conclusion thereof shall make a finding as to the reasonableness of the parties' request for or refusal to provide records and may assess costs pursuant to the rules of civil procedure.
(a) In each professional liability action filed against a health care provider, the court shall convene a mandatory status conference within sixty days after the appearance of the defendant. It shall be the duty of the defendant to schedule the conference with the court upon proper notice to the plaintiff.
(b) During the status conference the parties shall inform the court as to the status of the action, the identification of contested facts and issues, the progress of discovery and the time necessary to complete discovery. The plaintiff shall advise the court whether the plaintiff intends to proceed without an expert, whether the expert who signed the screening certificate of merit will testify upon trial or whether additional experts will be offered by plaintiff. The court shall determine whether the plaintiff may proceed without an expert or otherwise establish dates for the disclosure of expert witnesses by both the plaintiff and all defendants. The court shall also order the parties to participate in mandatory mediation. The mediation shall be conducted pursuant to the provisions of trial court rule 25.
(c) Absent an order expressly setting forth reasons why the interests of justice would otherwise be served, the court shall enter a scheduling order which sets a trial date within twenty-four months from the date the defendant made an appearance, or if there is more than one defendant, twenty-four months from the date the last defendant makes an appearance in the proceeding. The trial date shall be adhered to unless, for good cause shown, the court enters an order continuing the trial date.
(d) The court may order a summary jury trial of the case if all parties represent a case is ready for trial and jointly move the court for a summary jury trial, as provided in section six-c of this article.
(e) Counsel and parties are subject to sanctions for failures and lack of preparation specified in rule 16(f) of the rules of civil procedure respecting pretrial conferences or orders and are subject to the payment of reasonable expenses, including attorneys fees, for failure to participate in good faith in the development and submission of a proposed discovery plan as required by the rules of civil procedure.
(f) In the event that the court determines prior to trial that either party is presenting or relying upon a frivolous or dilatory claim or defense, for which there is no reasonable basis in fact or at law, the court may direct in any final judgment the payment to the prevailing party of reasonable litigation expenses, including deposition and subpoena expenses, travel expenses incurred by the party, and such other expenses necessary to the maintenance of the action, excluding attorney's fees and expenses.
(a) The court must determine the date of the summary jury trial, the length of presentations by counsel, and the length of deliberations by the jury, so that the proceeding can be completed in no more than one day.
(b) Unless the court orders otherwise, the parties or representatives of the parties must be present at the summary jury trial.
(c) The trial shall be conducted before a six-member jury selected from the regular jury panel. The court shall conduct a brief voir dire of the panel, and each party may exercise two challenges. No alternate jurors will be impaneled.
(d) All evidence shall be presented by the attorneys for the parties. The attorneys may summarize, quote from, and comment on pleadings, depositions, or other discovery requests and responses, exhibits and statements of potential witnesses. No potential testimony of a witness may be referred to unless the reference is based on: (i) The product of discovery procedures; (ii) a written sworn statement of the witness; or (iii) an affidavit of counsel stating that although an affidavit of the witness is not available and cannot be obtained by the exercise of reasonable diligence, the witness would be called at trial and counsel has been told the substance of the testimony of the witness. The substance of the witness' testimony must also be included in the affidavit of counsel.
(e) Unless the court orders otherwise, presentations shall be limited to one hour for each party. In the case of multiple parties represented by separate counsel, the court shall make a reasonable adjustment of the time allowed.
(f) Opposing counsel may object during the course of a presentation if the presentation violates the provisions of subsection (d) of this section or goes beyond the limits of propriety in statements as to evidence or other comments.
(g) Following the presentations by counsel, the court shall give an abbreviated set of instructions to the jury on the applicable law. The jury will be encouraged to return a verdict that represents a unanimous verdict of the jurors. If after a reasonable time a unanimous verdict is not possible, the jury shall be directed to return a special verdict consisting of an anonymous statement of each juror's finding on liability and damages. Following the verdict, the court may invite, but may not require, the jurors to informally discuss the case with the attorneys and the parties.
(h) Unless the court orders otherwise, the proceedings will not be recorded. However, a party may arrange for recording at its own expense. Statements in briefs or summaries submitted in connection with the summary jury trial and statements by counsel at trial are not admissible in any evidentiary proceeding. The summary jury trial verdict is not admissible in any evidentiary proceeding.
(i) Within thirty days following the jury verdict, each party must file a notice setting forth whether the party intends to accept the summary jury trial verdict or whether the party rejects the summary jury trial verdict and desires to proceed to trial. If all parties accept the summary jury trial verdict, the verdict will be deemed a final determination on the merits and judgment may be entered on the verdict by the court. If a verdict is rendered upon the subsequent trial of the case which is not more than twenty percent more favorable to a party who rejected the summary jury trial verdict and indicated a desire to proceed to trial, the rejecting party is liable for the costs incurred by the other party or parties subsequent to the summary jury trial, in a similar manner as is provided in rule 68(c) of the rules of civil procedure when a claimant rejects an offer of judgment, and is liable for attorneys' fees incurred after the summary jury trial.
Acts, 2014 Reg. Sess., Ch. 99.
(a) The applicable standard of care and a defendant's failure to meet the standard of care, if at issue, shall be established in medical professional liability cases by the plaintiff by testimony of one or more knowledgeable, competent expert witnesses if required by the court. A proposed expert witness may only be found competent to testify if the foundation for his or her testimony is first laid establishing that: (1) The opinion is actually held by the expert witness; (2) the opinion can be testified to with reasonable medical probability; (3) the expert witness possesses professional knowledge and expertise coupled with knowledge of the applicable standard of care to which his or her expert opinion testimony is addressed; (4) the expert witness's opinion is grounded on scientifically valid peer-reviewed studies if available; (5) the expert witness maintains a current license to practice medicine with the appropriate licensing authority of any state of the United States: Provided, That the expert witness's license has not been revoked or suspended in the past year in any state; and (6) the expert witness is engaged or qualified in a medical field in which the practitioner has experience and/or training in diagnosing or treating injuries or conditions similar to those of the patient. If the witness meets all of these qualifications and devoted, at the time of the medical injury, sixty percent of his or her professional time annually to the active clinical practice in his or her medical field or specialty, or to teaching in his or her medical field or speciality in an accredited university, there shall be a rebuttable presumption that the witness is qualified as an expert. The parties shall have the opportunity to impeach any witness's qualifications as an expert. Financial records of an expert witness are not discoverable or relevant to prove the amount of time the expert witness spends in active practice or teaching in his or her medical field unless good cause can be shown to the court.
(b) Nothing contained in this section limits a trial court's discretion to determine the competency or lack of competency of a witness on a ground not specifically enumerated in this section.
(4) An assessment of a civil or criminal penalty.
(b) In any action brought, if the health care facility or health care provider demonstrates compliance with the minimum staffing requirements under state law, the health care facility or health care provider is entitled to a rebuttable presumption that appropriate staffing was provided.
(c) Information under this section may only be introduced in a proceeding if it is otherwise admissible under the West Virginia Rules of Evidence.
(c) On January 1, 2004, and in each year thereafter, the limitation for compensatory damages contained in subsections (a) and (b) of this section shall increase to account for inflation by an amount equal to the Consumer Price Index published by the United States Department of Labor, not to exceed one hundred fifty percent of the amounts specified in said subsections. (d) The limitations on noneconomic damages contained in subsections (a), (b), (c) and (e) of this section are not available to any defendant in an action pursuant to this article which does not have medical professional liability insurance in the aggregate amount of at least $1 million for each occurrence covering the medical injury which is the subject of the action.
(5) The percentage of fault, if any, attributable to each of the defendants.
(b) The trier of fact shall, in assessing percentages of fault, consider the fault of all alleged parties, including the fault of any person who has settled a claim with the plaintiff arising out of the same medical injury.
(c) If the trier of fact renders a verdict for the plaintiff, the court shall enter judgment of several, but not joint, liability against each defendant in accordance with the percentage of fault attributed to the defendant by the trier of fact.
(d) To determine the amount of judgment to be entered against each defendant, the court shall first, after adjusting the verdict as provided in section nine-a of this article, reduce the adjusted verdict by the amount of any pre-verdict settlement arising out of the same medical injury. The court shall then, with regard to each defendant, multiply the total amount of damages remaining, with prejudgment interest recoverable by the plaintiff, by the percentage of fault attributed to each defendant by the trier of fact. The resulting amount of damages, together with any post-judgment interest accrued, shall be the maximum recoverable against the defendant. To determine the amount of judgment to be entered against each defendant when there is no preverdict settlement, the court shall first, after adjusting the verdict as provided in section nine-a of this article, multiply the total amount of damages remaining with any prejudgment interest recoverable by the plaintiff, by the percentage of fault attributed to each defendant by the trier of fact. The resulting amount of damages, together with any post-judgment interest accrued, shall be the maximum amount recoverable damages against each defendant.
(e) When any defendant's percentage of the verdict exceeds the remaining amounts due the plaintiff after the mandatory reductions, each defendant shall be liable only for the defendant's pro rata share of the remainder of the verdict as calculated by the court from the remaining defendants to the action. The plaintiff's total award may never exceed the jury's verdict less any statutory or court-ordered reductions.
(f) Nothing in this section is meant to eliminate or diminish any defenses or immunities which exist as of the effective date of this section, except as expressly noted in this section.
(g) Nothing in this article is meant to preclude a health care provider from being held responsible for the portion of fault attributed by the trier of fact to any person acting as the health care provider's agent or servant or to preclude imposition of fault otherwise imputable or attributable to the health care provider under claims of vicarious liability. A health care provider may not be held vicariously liable for the acts of a nonemployee pursuant to a theory of ostensible agency unless the alleged agent does not maintain professional liability insurance covering the medical injury which is the subject of the action in the aggregate amount of at least $1 million for each occurrence.
(a) In any action arising after the effective date of this section, a defendant who has been found liable to the plaintiff for damages for medical care, rehabilitation services, lost earnings or other economic losses may present to the court, after the trier of fact has rendered a verdict, but before entry of judgment, evidence of payments the plaintiff has received for the same injury from collateral sources.
(3) The amount of the future expenses is readily reducible to a sum certain.
(c) In a hearing held pursuant to subsection (a) of this section, the plaintiff may present evidence of the value of payments or contributions he or she has made to secure the right to the benefits paid by the collateral source.
(4) The total amount of any premiums or contributions paid by the plaintiff in exchange for the collateral source payments in each category of economic loss found by the trier of fact.
(e) The court shall subtract the total premiums the plaintiff was found to have paid in each category of economic loss from the total collateral source benefits the plaintiff received with regard to that category of economic loss to arrive at the net amount of collateral source payments.
(f) The court shall then subtract the net amount of collateral source payments received or to be received by the plaintiff in each category of economic loss from the total amount of damages awarded the plaintiff by the trier of fact for that category of economic loss to arrive at the adjusted verdict.
(5) A settlement between the plaintiff and another tortfeasor.
(h) After determining the amount of the adjusted verdict, the court shall enter judgment in accordance with the provisions of section nine of this article.
An action may not be maintained against a health care provider pursuant to this article by or on behalf of a third-party nonpatient for rendering or failing to render health care services to a patient whose subsequent act is a proximate cause of injury or death to the third party unless the health care provider rendered or failed to render health care services in willful and wanton or reckless disregard of a foreseeable risk of harm to third persons. Nothing in this section shall be construed to prevent the personal representative of a deceased patient from maintaining a wrongful death action on behalf of such patient pursuant to article seven of this chapter or to prevent a derivative claim for loss of consortium arising from injury or death to the patient arising from the negligence of a health care provider within the meaning of this article.
(a) In any action brought under this article for injury to or death of a patient as a result of health care services or assistance rendered in good faith and necessitated by an emergency condition for which the patient enters a health care facility designated by the Office of Emergency Medical Services as a trauma center, including health care services or assistance rendered in good faith by a licensed emergency medical services authority or agency, certified emergency medical service personnel or an employee of a licensed emergency medical services authority or agency, the total amount of civil damages recoverable may not exceed $500,000, for each occurrence, exclusive of interest computed from the date of judgment, and regardless of the number of plaintiffs or the number of defendants or, in the case of wrongful death, regardless of the number of distributees.
(b) On January 1, 2016, and in each year thereafter, the limitation on the total amount of civil damages contained in subsection (a) of this section shall increase to account for inflation as determined by the Consumer Price Index published by the United States Department of Labor: Provided, That increases on the limitation of damages shall not exceed one hundred fifty percent of the amounts specified in said subsection.
(c) Beginning July 1, 2016, a plaintiff who, as a result of an injury suffered prior to or after said date, suffers or has suffered economic damages, as determined by the trier of fact or the agreement of the parties, in excess of the limitation of liability in section (a) of this section and for whom recovery from the Patient Injury Compensation Fund is precluded pursuant to section one, article twelve-d, chapter twenty-nine of this code may recover additional economic damages of up to $1 million. This amount is not subject to the adjustment for inflation set forth in subsection (b) of this section.
(b)(d) The limitation of liability in subsection (a) of this section also applies to any act or omission of a health care provider in rendering continued care or assistance in the event that surgery is required as a result of the emergency condition within a reasonable time after the patient's condition is stabilized.
(2) Is unrelated to the original emergency condition.
(f) In the event that: (1) A physician provides follow-up care to a patient to whom the physician rendered care or assistance pursuant to subsection (a) of this section; and (2) a medical condition arises during the course of the follow-up care that is directly related to the original emergency condition for which care or assistance was rendered pursuant to said subsection, there is rebuttable presumption that the medical condition was the result of the original emergency condition and that the limitation on liability provided by said subsection applies with respect to that medical condition.
(g) There is a rebuttable presumption that a medical condition which arises in the course of follow-up care provided by the designated trauma center health care provider who rendered good faith care or assistance for the original emergency condition is directly related to the original emergency condition where the follow-up care is provided within a reasonable time after the patient's admission to the designated trauma center.
(2) In clear violation of established written protocols for triage and emergency health care procedures developed by the Office of Emergency Medical Services in accordance with subsection (e) of this section. In the event that the Office of Emergency Medical Services has not developed a written triage or emergency medical protocol by the effective date of this section, the limitation on liability provided under subsection (a) of this section does not apply where health care or assistance is rendered under this section in violation of nationally recognized standards for triage and emergency health care procedures.
(i) The Office of Emergency Medical Services shall, prior to the effective date of this section, develop a written protocol specifying recognized and accepted standards for triage and emergency health care procedures for treatment of emergency conditions necessitating admission of the patient to a designated trauma center.
(j) In its discretion, the Office of Emergency Medical Services may grant provisional trauma center status for a period of up to one year to a health care facility applying for designated trauma center status. A facility given provisional trauma center status is eligible for the limitation on liability provided in subsection (a) (i) of this section. If, at the end of the provisional period, the facility has not been approved by the Office of Emergency Medical Services as a designated trauma center, the facility is no longer eligible for the limitation on liability provided in subsection (a) of this section.
(k) The Commissioner of the Bureau for Public Health may grant an applicant for designated trauma center status a one-time only extension of provisional trauma center status, upon submission by the facility of a written request for extension, accompanied by a detailed explanation and plan of action to fulfill the requirements for a designated trauma center. If, at the end of the six-month period, the facility has not been approved by the Office of Emergency Medical Services as a designated trauma center, the facility no longer has the protection of the limitation on liability provided in subsection (a) of this section.
(l) If the Office of Emergency Medical Services determines that a health care facility no longer meets the requirements for a designated trauma center, it shall revoke the designation, at which time the limitation on liability established by subsection (a) of this section ceases to apply to that health care facility for services or treatment rendered thereafter.
(3) System accountability, including medical review and audit to assure system quality. Any medical review committees established to assure system quality shall include all levels of care, including emergency medical service providers, and both the review committees and the providers shall qualify for all the rights and protections established in article three-c, chapter thirty of this code.
(2) The total amount of past medical expenses incurred but not paid by or on behalf of the plaintiff for which the plaintiff or another person on behalf of the plaintiff is obligated to pay.
(a) The provisions of House Bill 149, enacted during the first extraordinary session of the Legislature, 1986, shall be effective at the same time that the provisions of Enrolled Senate Bill 714, enacted during the regular session of the Legislature, 1986, become effective, and the provisions of said House Bill 149 shall be deemed to amend the provisions of Enrolled Senate Bill 714. The provisions of this article shall not apply to injuries which occur before the effective date of said Enrolled Senate Bill 714.
The amendments to this article as provided in House Bill 601, enacted during the sixth extraordinary session of the Legislature, 2001, apply to all causes of action alleging medical professional liability which are filed on or after March 1, 2002.
The amendments to this article provided in Enrolled Committee Substitute for House Bill 2122 during the regular session of the Legislature, 2003, apply to all causes of action alleging medical professional liability which are filed on or after July 1, 2003.
(b) The amendments to this article provided in Enrolled Committee Substitute for Senate Bill 6 during the regular session of the Legislature, 2015, apply to all causes of action alleging medical professional liability which are filed on or after July 1, 2015.
(c) The amendments to this article provided in Enrolled Committee Substitute for Senate Bill 338 during the regular session of the Legislature, 2017, apply to all causes of action alleging medical professional liability which arise or accrue on or after July 1, 2017.
(a) If any provision of this article as enacted during the first extraordinary session of the Legislature, 1986, in House Bill 149, or as enacted during the regular session of the Legislature, 1986, in Senate Bill 714, or as enacted during the regular session of the Legislature, 2015, or in Senate Bill 338, as enacted during the regular session of the Legislature, 2017, or the application thereof to any person or circumstance is held invalid, the invalidity does not affect other provisions or applications of this article, and to this end, the provisions of this article are declared to be severable.
(b) If any provision of the amendments to section five of this article, any provision of section six-d of this article or any provision of the amendments to section eleven, article six, chapter fifty-six of this code as provided in House Bill 601, enacted during the sixth extraordinary session of the Legislature, 2001, is held invalid, or the application thereof to any person is held invalid, then, notwithstanding any other provision of law, every other provision of said House Bill 601 shall be deemed invalid and of no further force and effect.
(c) If any provision of the amendments to section six or ten of this article or any provision of section six-a, six-b or six-c of this article as provided in House Bill 601, enacted during the sixth extraordinary session of the Legislature, 2001, is held invalid, the invalidity does not affect other provisions or applications of this article, and to this end, such provisions are deemed severable.
(a) An irrevocable trust may be established by or for the benefit of the physician and funded by conveyance to the trustee of the sum of not less than $1 million, in cash or cash equivalents, subject to disbursement and replenishment from time to time, as described in this section, and exclusive of funds needed for maintenance, administration, legal defense and all other costs.
(b) A physician who has established a trust pursuant to this section may subsequently terminate the trust and elect to acquire coverage from a commercial medical professional liability insurance carrier. The assets of the trust may not be distributed to the physician settlor until the costs associated with the administration of the trust have been satisfied and the trustee receives certification that the physician has acquired medical professional liability insurance tail coverage or prior acts coverage, whichever is applicable. The tail coverage or prior acts coverage must cover the time period from the establishment of the trust to the effective date of the newly acquired medical professional liability insurance coverage or twelve years, whichever is shorter.
(c) For a period of not less than the applicable statute of limitations for medical professional liability, a physician who has established an actuarially sound physician self-funding insurance program under this section and has such a program in effect at the time of retirement shall, following his or her retirement, either maintain the trust in effect at funding levels required by this section, or purchase and maintain in force and effect tail insurance as required by article twenty-d, chapter thirty-three of this code.
(4) Require that the physician replenish the trust so as to maintain at all times a funding level of no less than $1 million or such greater amount as set forth in the most current actuarial opinion as described in subdivision (2) of this subsection, exclusive of funds needed for maintenance, administration, defense or other costs.
(e) The trustee, acting directly or through its hired professionals, as appropriate, shall periodically, but not less frequently than annually, evaluate and set required trust funding levels for the trust; make assessments against the physician for payments into the trust in order to replenish and maintain the trust at levels required by this subsection and required to render the trust actuarially sound from time to time; and otherwise take such actions as may appear necessary, desirable or appropriate to fulfill the purposes and integrity of the trust. Should the physician fail to timely meet any of the requests or requirements of the trustee with regard to funding of the trust or otherwise, or should the trust at any time fail to meet all the requirements of this subsection, thereupon the trust arrangement will conclusively no longer qualify under this article as an actuarially sound self-funding program: Provided, That all assets of the trust at the time of any such disqualifying event or circumstance will remain trust assets and may not be distributed to the physician settlor of the trust until the latter of the date on which any and all medical professional liability claims asserted or pending against the physician at the time of such disqualifying event or circumstance or within the applicable statute of limitations for medical malpractice liability thereafter have been finally adjudicated or otherwise resolved and fully satisfied to the extent of trust assets available for such purpose.
(f) In the event that more than one claim arises within the period since the last annual evaluation, a new evaluation will be performed within sixty days or at the time of the next annual audit, whichever is shorter, in order to evaluate the trust and replenish funds to ensure that its assets total not less than $1 million, or such other amount that is actuarially determined necessary to satisfy the aggregate outstanding claims, whichever is greater, exclusive of funds needed for maintenance, administration, legal defense or other costs.


text:
The ECHR case of Islamova v. Russia (application no. 5713/11).
The ECHR case of Mezhiyeva v. Russia (application no. 44297/06).
The ECHR case of Ireziyevy v. Russia (application no. 21135/09).
The ECHR case of Zhebrailova and Others v. Russia (application no. 40166/07).
The ECHR case of Gambulatova v. Russia (application no. 11237/10).
The ECHR case of Sultygov and Others v. Russia (application nos. 42575/07, 53679/07, 311/08, 424/08, 3375/08, 4560/08, 35569/08, 62220/10, 3222/11, 22257/11, 24744/11 and 36897/11).
The ECHR cases of Dobriyeva and others v. Russia (application nos. 53036/08, 61785/08, 8594/09, 24708/09, 30327/09, 36965/09, 61258/09, 63608/09, 67322/09, 4334/10, 4345/10, 11873/10, 25515/10, 30592/10, 32797/10, 33944/10, 36141/10, 52446/10, 62244/10 and 66420/10).
The ECHR case of Dobriyeva and others v. Russia (application no. 18407/10).

matches: v. v. v. v. v. v. v. v.


text:
B. The Text of Article III, Section. 2 Defines a "Case"
The individual amici curiae, Hon. John T. Doolittle (R-CA), Hon. George Radanovich (R-CA), Hon. Tom Tancredo (R-CO), Hon. Bob Stump (R-AZ), Hon. Barbara Cubin (R-WY), Hon. Tom A. Coburn (R-OK), Hon. Wally Herger (R-CA), and Hon. John E. Peterson (R-PA), are Members of the United States House of Representatives. These colleagues of the Petitioners support the Petitioners' efforts in this litigation to resist efforts by the Executive to circumvent the legislative process set forth in the Constitution. (1) The individual amici also have a direct interest in the issue involved, i.e., whether Members of the House of Representatives have standing to contest in court executive directives usurping the legislative role of the House of Representatives.
This question in this case is whether four Members of the House of Representatives have legal standing under Article III, Section 2 to challenge President Clinton's Executive Order establishing the American Heritage Rivers Initiative. Relying almost exclusively upon this Court's recent opinion in Raines v. Byrd, the courts below ruled that they did not. These rulings were erroneous.
First, the courts below misapplied, not only the rule in Raines, but the rule in Coleman v. Miller. As for Coleman, the courts below incorrectly limited its reach to the specific facts of that case. As for Raines, the courts below erroneously applied a rule applicable only to intralegislative disputes ungoverned by any specific provision of the Constitution to an interbranch dispute governed by the procedural rules of Article I, Section 7 and Article II, Section 3 guaranteeing specific voting rights and other legislative prerogatives to members of Congress. Hence, the standing rule in Coleman, not Raines, applies. Second, the courts below ignored the Law of the Constitution, substituting the language of judicial opinions for the text of the Constitution. In doing so, they ignored Article III, Section 2, which provides that "the judicial power shall extend to all Cases ... in Equity arising under this Constitution" and Article I, Sections 1, 2, 4, and 7, which vest specific legal rights in individual members of Congress to participate in the law- making process prescribed by Article I, Section 7 and Article II, Section 3. Finally, the constitutional principle of separation of powers obliges this Court to grant the Petitioners standing. Otherwise, the liberties of the people guaranteed by the constitutional scheme dividing powers will be seriously eroded.
In his February 1997 State of the Union address, President William Clinton announced his intention to create an American Heritage Rivers Initiative ("AHRI"), whereby he would designate selected rivers as "Heritage Rivers" to "help communities alongside them revitalize their waterfronts and clean up pollution." 33 Weekly Comp. Pres. Doc. 141 (Feb. 4, 1997). Thereafter, the President directed several executive agencies to implement the initiative, establishing an American Heritage Rivers Interagency Committee which, in turn, conducted an investigation, including public hearings, and provided the President with policy recommendations and proposed rules.
In response, on September 11, 1997, President Clinton issued Executive Order 13061, 62 Fed. Reg. 48445 (1997) establishing AHRI. Executive Order 13061 initiated a new federal regulatory policy designed "to protect and restore rivers and their adjacent communities," which authorized the President to "designate rivers that meet certain criteria as 'American Heritage Rivers'" and to direct "executive agencies ... to the extent permitted by law [to] coordinate Federal plans, functions, programs, and resources to preserve, protect, and restore rivers and their associated resources important to our history, culture, and natural heritage." Chenoweth v. Clinton, 997 F. Supp. 36, 39 (D.D.C. 1998).
In this Executive Order, President Clinton acted in a manner comparable to President Harry Truman's seizure of the nation's steel mills, which bypassed Congress, and took control of the steel mills pursuant to "a presidential policy ... in a manner prescribed by the President." Youngstown Sheet & Tube Co. v. Sawyer, 343 U.S. 579, 588 (1952).
In this case, four Members of the House of Representatives assert that the President has, by action comparable to that in Youngstown, seized from them their constitutionally-guaranteed right to vote, as well as other legislative prerogatives that are rightfully theirs as members of the House Resources Committee. This is not a "generalized grievance" which they suffered in common with the American people. Rather, it is a "personal, particularized, and concrete injury." The Petitioners have been "completely" deprived of their right to vote on whether to initiate legislation regarding America's rivers, a power explicitly granted to them, and denied to the President, by Article I, Section 7, and Article II, Section 3 of the U.S. Constitution.
At issue in this case is whether Petitioners' constitutionally-guaranteed rights are "personal, particularized, concrete, and otherwise judicially cognizable." Relying primarily upon this Court's decisions in Raines v. Byrd, 521 U.S. 811 (1997) and Coleman v. Miller, 307 U.S. 433 (1939), the courts below ruled that Petitioners did not meet this standard.
I. THE COURTS BELOW DECIDED THE STANDING QUESTION IN CONFLICT WITH COLEMAN V. MILLER AND RAINES V. BYRD.
A. The Courts Below Misapplied Coleman v. Miller.
According to the Court of Appeals below, the Petitioners lacked legal standing because "the Representatives do not allege that the necessary majorities in the Congress voted to block the AHRI [and], therefore they cannot claim their votes were effectively nullified by the machinations of the Executive." Chenoweth v. Clinton, 181 F.3d at 116 (D.C. Cir. 1999). This ruling, in turn, reflected the Court of Appeals' view that Raines v. Byrd narrowed the rule, announced in Coleman v. Miller, that only "legislators whose votes would have been sufficient to defeat (or enact) a specific legislative Act have standing to sue...." Id.
This is not the rule of Coleman, but its holding. As explained in Raines, Coleman held that the legislators in that case had clearly satisfied the legal rule "that their votes have been completely nullified," because they had shown that, as a matter of fact, their "votes would have been sufficient to defeat (or enact) a specific legislative Act...." Raines v. Byrd, supra, 521 U.S. at 823.
In Raines, this Court did not limit the application of Coleman to its particular facts. After concluding that the plaintiffs' claim in Coleman and Raines were not on the same factual footing, this Court continued its analysis whether the Raines plaintiff had demonstrated a "level of vote nullification" sufficient to support a claim of "a plain, direct, and adequate interest in maintaining the effectiveness of their votes" as required by Coleman. Only after deciding that the plaintiffs in Raines complained of an "abstract dilution of institutional legislative power" did this Court conclude that they did not have standing. Raines, supra, 521 U.S. at 826.
The Coleman rule, then, does not require proof that Petitioners' votes would have been sufficient to defeat (or enact) a specific legislative Act, as the Court of Appeals below held. Rather, Petitioners only need demonstrate that their constitutionally-guaranteed vote as Members of the House of Representatives has been so "nullified" as to create a "plain, direct, and adequate interest in maintaining the effectiveness of their votes." Petitioners have met this standard.
B. The Rule of Coleman v. Miller Has Been Met.
Article I, Section 7 sets forth the specific process by which an act "becomes a law," and details the respective roles to be played by the House, the Senate, and the President. Although Article II, Section 3 permits the President to take an initiative role in the law-making process, it expressly limits that role to "recommending to their [Congress's] Consideration such Measures as he shall judge necessary or expedient...." See Clinton v. New York, 524 U.S. 417, 438 (1998). Under Article I, Section 7, it is for Congress to decide whether to take a presidentially-recommended "Measure" and translate it into a "Bill...Order, Resolution or Vote," a constitutional prerequisite before such a "Measure" can ever become a law. If Congress takes such action, then Article I, Section 7 limits the role of the President to approve or disapprove the "Measure" initiated by Congress. If Congress takes no action, the President may not act, no matter how "necessary and expedient" he thinks that his recommended "Measure" may be. Id., 542 U.S. at 448-49.
As this Court has rightfully observed, this "prescription for legislative action in Article I, [Section] 7, represents the Framers' decision that the legislative power of the Federal Government be exercised in accord with a single, finely wrought and exhaustively considered, procedure." I.N.S. v. Chadha, 462 U.S. 919, 951 (1983). By initiating the AHRI, without any participation whatsoever by Congress, President Clinton has turned this "single, finely wrought and exhaustively considered, procedure" upside down. Instead of limiting his action to a recommendation to Congress for its "Consideration," as prescribed by Article II, Section 3, the President has acted unilaterally. Instead of waiting for Congress to take the initiative to draft and approve a "Bill" or "Order," as prescribed by Article I, Section 7, the President has supplanted Congress by promulgating Executive Order 13061. Instead of the President responding to a Congressional Bill or Order with his signature or his veto, the President has forced the Congress to respond to his initiative. In so acting, the President has "completely nullified" the vote of every member of Congress, as guaranteed by Article I, Section 7.
Further, the President substituted a presidentially-appointed and constituted Interagency Committee on American Heritage Rivers to "Consider" his proposed "Measure" in the place of the Resources Committee of the House of Representatives which had been duly constituted by the Speaker of the House and to which the Petitioners had been appointed. Thus, instead of a Congressional Committee initiating and conducting the appropriate investigation, holding public hearings, and making the necessary policy recommendations for an AHRI or some variation of it, the President bypassed the entire process. By ignoring the command of Article II, Section 3, the President "completely nullified" the Committee votes of the four petitioning House Members, all of whom serve on the House Resources Committee (which has jurisdiction of the AHRI's subject matter), denying to them their constitutionally-guaranteed right to "Consider" whatever "Measures" the President "shall judge necessary and expedient."
Despite the President's action, completely nullifying the voting rights and other legislative prerogatives vested by the Constitution in the House, including the Petitioners, the courts below ruled that the Petitioners lacked standing. In explanation of their rulings, the district judge observed that, "legislative remedies were still available to them," 997 F. Supp. at 39, while the Court of Appeals wrote that, "[i]t is uncontested that the Congress could terminate the AHRI were a sufficient number in each House so inclined." 181 F.3d at 116. But a vote to terminate an action unilaterally taken by the President is not the same vote as one concerning whether to take action in the first place. Nor is "consideration" of a measure, after that measure has been given the force of law, the same as consideration of that same measure before it became law.
C. Raines v. Byrd Does Not Apply Here.
The courts below claimed that Raines v. Byrd, supra, dictated their rulings that a vote to repeal is the constitutional equivalent to a vote to initiate. That is not correct.
In Raines, no member of Congress was denied his constitutionally-guaranteed right to vote on the Line Item Veto Act before it became a law. The Act began as a Bill in Congress, not as an Executive Order in the White House. Thus, it was Congress, not the President, which took the initial legislative action to diminish its own powers. 521 U.S. at 813. That is why this Court concluded in Raines that the complaining Senators' and Representatives' "votes were given full effect. They simply lost that vote." Id., at 824.
But the Petitioners here were not on the losing side of a vote in Congress. By issuing Executive Order 13061, the President bypassed Congress completely. Unlike Raines, then, this is not a "mere intra-parliamentary controversy." 307 U.S. at 441.
Indeed, the dispute here is not even arguably an intra-legislative controversy, as was the case in Coleman. Unlike the Lieutenant Governor in Coleman, the President does not have a "vote" in either house of Congress. By the terms of Article II, Section 3 of the Constitution, the President only has a right to recommend a legislative measure before a vote and, by the terms of Article I, Section 7, he only has the right to approve or disapprove a legislative bill or other action after a vote. He cannot intrude into the legislative process any other way. If he does, he certainly usurps the rights of individual Members of Congress such as Petitioners who, in turn, have legal standing to vindicate "an institutional injury," because each one has "a plain, direct and adequate interest in maintaining the effectiveness of their votes." Coleman v. Miller, supra, 307 U.S. at 438.
D. The People's Representatives, Like the People, Have Standing to Protect Their Right to Vote.
Should this Court turn its back on the rule in Coleman, then, it would have to reject not only the "controlling authorities" of Hawke v. Smith, 253 U.S. 221 (1920), and Leser v. Garnett, 258 U.S. 130 (1922) (as Chief Justice Hughes pointed out in Coleman, 307 U.S. at 438-41), but also a long line of cases from Colegrove v. Green, 328 U.S. 549 (1946) to Baker v. Carr, 369 U.S. 186, 206-08 (1962). For nearly 80 years this Court has held that a "citizen and elector" has standing to assert a claim that his right to vote has been unconstitutionally impaired. Contrary to the assertions of the courts below, legal standing of the people's representative, like that of the citizen/elector, does not require a claim of diminished voting power in relation to a specific piece of legislation. See Raines v. Byrd, supra, 521 U.S. at 837 (Stevens, J., dissenting).
For standing, it is enough that the complaint is rooted in the denial of specific constitutional procedural guarantees vesting a right to vote in the people's elected representatives as Members of Congress.
II. THE COURTS BELOW DECIDED THE STANDING QUESTION IN CONFLICT WITH ARTICLE III, SECTION 2 OF THE CONSTITUTION.
A. The Law of the Constitution Governs.
The real issue in this case is whether the Petitioners have legal standing under the Law of the Constitution. Yet the Court of Appeals below never even mentioned the applicable constitutional text, much less analyzed it. Although the district court referred to the text once, it explained its decision solely on the basis of this Court's and the Court of Appeals' precedent without any analysis of the relevant constitutional text.
This rule -- that the law and court opinions are not interchangeable terms -- was well understood and applied in the first case in which this Court ruled an Act of Congress unconstitutional. In Marbury v. Madison, 5 U.S. (1 Cranch) 137, 180 (1803), Chief Justice John Marshall wrote that "a law repugnant to the constitution is void; and that courts, as well as other departments, are bound by that instrument." (Emphasis added.) This followed, the Chief Justice reasoned, not only from the very nature of a written constitution, but from the language of Article VI, which states that "this Constitution ... shall be the Supreme Law of the Land ... and [t]he Senators and Representatives ... and all executive and judicial Officers, shall be bound by Oath or Affirmation, to support this Constitution...." Had the courts below examined the relevant constitutional text, they would have ruled that the Law of the Constitution confirms that the Petitioners have standing.
B. The Text of Article III, Section 2 Defines a "Case."
According to Article III, Section 2, "[t]he judicial Power [of the United States] shall extend to all Cases, in Law and Equity, arising under this Constitution...." The constitutional document, itself, does not define the key term, "Case," but does provide the precise source from which to glean such a definition. To qualify as a "Case," a matter in dispute must be the kind of contest traditionally recognized by courts of "Law" or "Equity" in existence in the several states at the time the Constitution was written. See, e.g, The Federalist No. 80; Madison, Notes of Debates in the Federal Convention of 1787 539 (Norton: 1987) (hereinafter Madison's Notes.) This choice was deliberate, the Framers having specifically rejected a proposal that the judiciary have an active general "revisory power over the actions of Congress." Muskrat v. United States, 219 U.S. 346, 361 (1911); Madison's Notes, supra, at 32, 461-65.
At the same time, the Framers agreed to extend the jurisdiction of courts to "Cases ... arising under this Constitution," contests that, in 1787, were not traditionally within the jurisdiction of the English common law and equity courts. II Story, Commentaries on the Constitution Sections 1645-46 (5th ed. 1891) (hereinafter Story's Commentaries). This decision also was deliberate, endorsed over the vigorous objections of several delegates. Madison's Notes, supra, at 462-65. By limiting the jurisdiction to cases as they were defined at law and in equity, however, these objections were overcome (Madison's Notes at 393, 538-39), and the federal courts soon began adjudicating cases involving questions of application of the Constitution. I Warren, The Supreme Court in United States History 62-84 (1937); II Story's Commentaries, supra, at Section 1647.
By the express terms of Article III, Section 2, the Framers contemplated that the Constitution would be a new source of rights which, in turn, would expand the jurisdiction of the federal courts beyond that enjoyed by the common law and equity courts. At the same time, by that section's express terms, the Framers contemplated that the judicial power extended only to those rights created by the Constitution that were "legal" in nature. As Justice Felix Frankfurter observed in Coleman v. Miller, supra, 307 U.S. at 460, the jurisdiction of the courts extended to "legal" issues, not "political"ones, only the former being "the staple of judicial business."
C. The Constitution Vests a Legal Right in Petitioners.
In Marbury v. Madison, supra, Chief Justice Marshall addressed both of these issues, looking to the statutory and constitutional texts, first, to discover the rules by which appointments to federal office are governed and, second, to determine whether a claim to a disputed appointment before it was a matter of obligation or discretion. The Court decided that the applicable statutory and constitutional provisions established that an appointment to the federal office in question occurred at the time that the President's seal was placed on the appointment papers, the President only having the power of appointment. Having held that the act of delivery of the appointment papers was only a "ministerial" act, and that the nature of the office to which the person had been appointed was judicial, this Court concluded that the appointee had a "vested legal right" in the appointment, obligatory upon the President.
The same principle applied in Marbury also applies here. The Petitioners' claim is rooted in Article I, Section 7 and Article II, Section 3, both of which govern the President's participation in the legislative process. See Clinton v. New York, supra, 524 U.S. at 429-30, 438-39. Under Article I, Section 7, only Congress has the power to conduct the formal legislative process by which a proposal may become a law, with the President playing only a responsive role triggered by Congress presenting a legislative measure, previously agreed to by each House, for the President's approval or disapproval. This "finely wrought" procedure demands, as this Court has consistently ruled, that no measure can become a federal law unless it is a "product" of the process spelled out in Article I, Section 7. Id., 524 U.S. at 439-40; Chadha, supra, 462 U.S. at 951.
Article II, Section 3 reinforces this reading of Article I, Section 7. As Joseph Story observed, Article II, Section 3 "require[s] the President to lay before Congress all facts and information which may assist their deliberations; and in enabling him at once to point out the evil and to suggest a remedy." II Story, Commentaries on the Constitution, supra, Section 1561 (emphasis added).
Because the Constitution establishes that the President has absolutely no authority "to enact, to amend, or to repeal statutes" (Clinton v. New York, supra, 524 U.S. at 414), and further that this authority rests with Congress, the question is whether the Constitution further provides the Petitioners, all duly elected Members of the House of Representatives, "vested legal rights" to participate in the formal legislative process set forth in the Constitution. The answer is yes.
Article I, Section 1 of the Constitution "vest[s] ... [a]ll legislative Powers herein granted in a Congress of the United States, which shall consist of a Senate and House of Representatives." Article I, Section 2 states that the "House of Representatives shall be composed of Members chosen by the People of the several States...." Article I, Section 5 provides that the "House shall be the Judge of the Elections, Returns and Qualifications of its own Members...." Thus, once a person is elected to the House of Representatives, and recognized as having been so elected, that person is "vested" with all the legislative prerogatives conferred upon him by the Constitution and the rules of the House, insofar as those rules are consistent with the commands of the Constitution. See Powell v. McCormack, 395 U.S. 486 (1969).
Indeed, if a justice of the peace appointed by the President has a "vested legal right" to the prerogatives of a judicial office created by statute, as this Court held in Marbury v. Madison, supra, then surely a Member of the House of Representatives, elected by the people and judged qualified to serve, has a "vested legal right" to the prerogatives of a legislative office created by the Constitution. Thus, as there was a "case in equity" within the meaning of Article III, Section 2 in Marbury v. Madison, supra, so there is a "case in equity" here.
D. Petitioners' Claim is a "Case...in Equity": Personal, Particularized, and Concrete.
Both courts below dismissed plaintiffs' standing on the grounds that their injury was not a "personal, particularized, concrete" one, but an "institutional injury" suffered by all members of the House equally, and therefore, nonjusticiable. These rulings mistake not only the nature of the injury suffered by each plaintiff, but the principles governing the requirement that a case, within the meaning of Article III, Section 2, must not be a grievance shared in common by people generally.
As Justice Frankfurter noted in Coleman v. Miller, supra, the parties who seek adjudication of a dispute in a federal court must be real "adversaries" presenting "a concrete, living contest," not an "abstract, intellectual problem" or an otherwise "undifferentiated [issue of] general interest" common to the general public. 307 U.S. at 460. This view of the reach of judicial power is supported not only by the text of Article III, Section 2, but by its historical context as well.
Unquestionably, a "case in law or equity" must meet the common law requirement that two or more adversarial parties are before the court seeking an authoritative resolution of a real, concrete, and personal controversy, not an advisory opinion subject to revision by either the executive or the legislative branches. This has been the Court's view since the founding of the American republic. See, e.g., I Warren The Supreme Court in United States History 108-111 (1937); Hayburn's Case, 2 U.S. (2 Dall.) 409 (1792); Muskrat v. United States, supra, 219 U.S. at 346.
Because of this textual and historical understanding, this Court has guarded against entry into intra-legislative disputes, recognizing not only that the Constitution does not authorize this Court to exercise "'some amorphous general supervision of the operations of government'" (Raines v. Byrd, supra, 521 U.S. at 829), but also that an individual member of the legislative branch embroiled in an intra-legislative dispute is not acting in his individual capacity, "but as [a] political representative [of the people] executing the legislative process." Thus, the legislator has no better standing to challenge the constitutionality of a measure duly enacted by a majority of his colleagues than a citizen and taxpayer that he represents. See Frothingham v. Mellon, 262 U.S. 447 (1923).
This case, however, presents no contest between Petitioners and their fellow legislators. Rather, it presents an interbranch dispute between Petitioners and the President that is governed by precise rules of procedure laid down in the constitutional text. Unlike other interbranch disputes, such as Goldwater v. Carter, 444 U.S. 996 (1979), this is not a dispute that the Constitution has left to be resolved politically, but one that this Court has acknowledged to be governed by precise rules of procedure unrevisable by either of the two branches. See Chadha, supra, and Clinton v. New York, supra.
E. "Prudential" Concerns Have No Place Here.
In Raines v. Byrd, supra, a majority of this Court expressed concern that, if it entertained law suits between members of the executive and judicial branches, it may be "improperly and unnecessarily plunged into ... bitter political battle[s] waged between the President and Congress." Thus, it worried that, if pressed into service to adjudicate such disputes, it might risk the "'public esteem for the federal courts and ... the peaceful coexistence of the countermajoritarian implications of judicial review and the democratic principles upon which our Federal Government in the final analysis rests.'" Id., 521 U.S. at 827-29. Such prudential concerns have no place in determining whether Petitioners have standing. First, the text of Article III, Section 2 contains a precise command, leaving no such prudential discretion to the courts: "The judicial Power shall extend to all Cases, in Law and Equity, arising under this Constitution...." (Emphasis added.) If a contest -- even one between individual legislators and the President -- qualifies as a "case" within the meaning of this provision, the courts must take jurisdiction. Second, the very nature of judicial power belies the claim that the courts have discretion to deny standing, notwithstanding their constitutional obligations. As Chief Justice John Marshall observed in Osborn v. The Bank of the United States, 22 U.S. (9 Wheat) 738, 866 (1824): "[j]udicial power, as contradistinguished from the power of the laws, has no existence. Courts are the mere instruments of the law, and can will nothing.... Judicial power is never exercised for the purpose of giving effect to the will of the Judge; always for the purpose of giving effect ... to the will of the law."
III. VINDICATION OF THE EXCLUSIVE LEGISLATIVE ROLE OF CONGRESS IS THE DUTY AND OBLIGATION OF THIS COURT.
The legislative, executive and judicial functions of the national government have been separated for the purpose of better securing liberty. Bowsher v. Synar, 478 U.S. 714, 721-22 (1986). Violations of the constitutional structure of government have a far-reaching effect. As Justice Kennedy has recently observed, "[l]iberty is always at stake when one or more of the branches seek to transgress the separation of powers." Clinton v. New York, supra, 524 U.S. at 450 (1998) (Kennedy, J., concurring). Such a transgression has clearly been raised by this case, where the President has usurped the lawmaking function.
This Court has observed that the constitutional separation of powers works to "assure full, vigorous, and open debate on the great issues affecting the people." Bowsher, supra, 478 U.S. at 722. It ensures "that legislation should not be enacted unless it has been carefully and fully considered by the Nation's elected officials." Chadha, supra, 462 U.S. at 943. However, such debate and careful consideration do not occur when the President has acted unilaterally as a lawmaker.
For the reasons set forth above, we respectfully urge this Court to grant the Petition for Writ of Certiorari.
1. Pursuant to Supreme Court Rule 37.6, it is hereby certified that no counsel for a party authored this brief in whole or in part, and that no person or entity other than these amici curiae made a monetary contribution to the preparation or submission of this brief.
2. Amici requested and received the written consents of the parties to the filing of this brief amicus curiae. Such written consents, in the form of letters from counsel of record for the various parties, have been submitted for filing to the Clerk of Court.
3. President Clinton's action regarding the American Heritage Rivers Initiative is not an isolated event, but rather part of a protracted assault on the legislative powers given Congress under Article I. President Clinton and his advisors have been both consistent and outspoken in their disregard for the limitations imposed on the executive branch by the Constitution. As Senator Orrin Hatch (R-UT), Chairman of the Senate Judiciary Committee, has observed, "[t]his President has a propensity to bypass Congress and the States and rule by executive order; in other words, by fiat." U.S. Congress, House Committee on Resources, April 29, 1997 Hearings, "Establishment of the Grand Staircase-Escalante National Monument by President Clinton on September 18, 1996," p. 12.
In 1998, the Los Angeles Times reported on "a blitz of executive orders during the next few weeks, part of a White House strategy to make progress on Clinton's domestic agenda with or without congressional help." Elizabeth Shogren, "Clinton to Bypass Congress in Blitz of Executive Orders," Los Angeles Times, p. A1, July 4, 1998. White House spokesman Jake Siewart stated that "[w]e've been fairly unapologetic about finding ways to act where we've found that Congress hasn't acted." Jonathan Weisman, "Clinton Finds Novel Ways to Enact Policies Without Congress' OK," Baltimore Sun, reprinted in Dallas Morning News, p. 8A, December 26, 1999. Perhaps no one has put his admiration for the raw power implicit in the Clinton doctrine of executive orders more succinctly than Clinton advisor Paul Begala: "Stroke of the Pen. Law of the Land. Kinda Cool." James Bennet, "True to Form, Clinton Shifts Energies Back to U.S. Focus," New York Times, July 5, 1998, section 1, p. 10. White House Chief of Staff John Podesta developed "Project Podesta," a program to bypass Congress using executive orders and changes to federal rules. Paul Bedard, "Washington Whispers," U.S. News & World Report, Nov. 1, 1999, p. 13.
The courts have not totally disregarded President Clinton's assault on Congress' legislative authority. See Chamber of Commerce of the U.S. v. Reich, 74 F.3d 1322 (D.C. Cir. 1996), invalidating a presidential Executive Order (No. 12954), for only the second time in U.S. history. A more extended treatment of this subject can be found at William J. Olson and Alan Woll, "Executive Orders and National Emergencies: How Presidents Have Come to 'Run the Country' by Usurping Legislative Power," Policy Analysis, No. 358, October 28, 1999, published by the CATO Institute, www.cato.org/pubs/pas/pa-358es.html.

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text:
GEORGE ABELL, APPLICANT, v. THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA, IN AND FOR THE COUNTY OF WASHOE, HONORABLE THOMAS F. MORAN, THE JUDGE THEREOF, AND LUVIE MOORE ABELL, RESPONDENTS.
No. 3203Supreme Court of Nevada.
ORIGINAL PROCEEDING in certiorari by George Abell against the Second Judicial District Court of the State of Nevada in and for Washoe County; Hon. Thomas F. Moran, the judge thereof, and Luvie Moore Abell, to set aside an order. Order annulled and setaside.
143 P. 429; Moore v. Superior Court (Cal.), 263 P. 1009; Scott v. Scott (Iowa), 156 N.W. 835; Blachly v. Blachly, 151 N.W. 447.
Even though the order was only temporary or interlocutory, notice was nevertheless necessary before the making and entry of the same. Gitsch v. Wight (Utah), 211 P. 705.
The order of May 14, 1937, is void for the reason that at the time the same was made and entered no affidavit or affidavits, or any other evidence at all, was before the court, showing that there has been a change or circumstances since the entry of the decree, warranting its modification. 42 C.J. 493, 494; Smith v. Smith, 245 N.W. 644; Dechert v. Dechert, 46 Nev. 140, 205 P. 593; Sweeney v. Sweeney, 42 Nev. 431, 179 P. 638; sec. 9462 N.C.L.; Cariens v. Cariens, 50 W. Va. 113, 40 S.E. 335, 55 L.R.A. 930; 9 R.C.L. 476, 477.
The applicant being absent from the county where his attorney resides and the attorney being better informed relative to the facts and matters stated in the application, verification thereof by the attorney was proper. 11 C.J. 154; Madison v. Piper, 53 P. 395; People v. Coleman, 41 Hun (N.Y.), 307; Matter of Belmont, 40 Misc. 133, 81 N.Y.S. 240.
Section 8573 N.C.L. enumerates the different ways that a defendant may appear in an action. We fail to see how the applicant could have exhausted his rights in the trial court without taking the procedure that he did, and how he could have exercised this right in any other way except by general appearance, in view of the foregoing section of the code. We believe the applicant would have been estopped had he not proceeded in the trial court as he did.
The order of May 14 is not a final order; it is a preliminary or interlocutory order. Elsman v. Elsman, 54 Nev. 28, 3 P.2d 1071.
It is well settled that certiorari will not lie to review an interlocutory order. 11 C.J. 126, 127.
Defendant appeared generally on May 24 when there was a hearing on his motion to vacate the order of May 14. Any error in granting an order without notice is cured by a hearing upon a motion to vacate the order. Thomas v. San Diego College, 43 P. 965.
The decree expressly reserved jurisdiction, and it has been held that in a divorce suit the action is pending as long as the court has any control over the status of minor children until such time as said children reach the age of majority. Gifford v. Gifford, 207 P. 1100; Ott v. Ott, 15 P.2d 897; Smith v. Smith, 132 S.W. 312; Kaplun v. Kaplun, 227 S.W. 984; Tinker v. Tinker, 290 P. 187.
No notice of the order of May 14 was required. Sections 9462 and 8921 N.C.L.; Kentz v. Kentz, 209 S.W. 200; Morrill v. Morrill, 77 A. 1.
Applicant is estopped from seeking a writ of certiorari, by his moving to vacate the order and consenting to the setting of plaintiff’s motion to modify the decree. 11 C.J. 138; Hart v. Winship, 146 N.W. 169; People v. Weld, 6 N.Y.S. 173.
Section 3232 N.C.L. does not provide that the application may be made on behalf of the applicant by his attorney.
Applicant has a plain, speedy and adequate remedy at law or in equity.
This is an original proceeding in certiorari.
child (Tyler Abell) from the 15th day of May until the 15th day of November, in each year, and that respondent Luvie Moore Abell should have the custody of said child from the 15th day of November until the 15th day of May, in each and every year. The court reserved jurisdiction to enter further and different orders herein, relative to the custody of said minor child.
The motion was set for hearing for the 18th day of June 1937, at 10 o’clock, a.m.
“Good cause appearing therefor, and pending the hearing of the motion filed on May 14, 1937, to modify the decree entered in the above entitled court on April 18, 1935, relative to the custody and support of Tyler Abell, the minor child of the parties. It is ordered that the sole and exclusive care, custody, and control of the minor child of the parties, to-wit, Tyler Abell, is hereby ordered to the plaintiff until further order of the Court.
On May 24, 1937, applicant made a motion in said court for an order vacating and setting aside the foregoing order as unauthorized and void. The court denied applicant’s motion.
not verified by the applicant but by one of his attorneys, respondents contend that it was not made by the party beneficially interested. Dismissal of the writ is urged on this account. But the application is made by the person beneficially interested, to wit, the father of the minor child, through one of his attorneys. Verification by the attorney is not improper under the facts stated in the application. The statute does not require the affidavit to be made by the party beneficially interested. In this regard it reads: “The application shall be made on affidavit by the party beneficially interested.” Section 9232 N.C.L.
1, 2. The application in certiorari proceedings is a pleading. Madison v. Piper, 6 Idaho, 137, 53 P. 395. In the instant case it shows that the party is absent from the county where his attorney, the affiant, resides; further, that the affiant is better informed relative to the facts and matters stated in the application.
“The court, upon good cause shown, may change the custody of such minor children, if they should be satisfied that such change will be for the welfare of such children.” Section 9462 N.C.L.
The necessity, however, for giving notice in such a case finds general support in the authorities dealing with the question under statutes of a similar character. Blachly v. Blachly, 169 Iowa, 489, 151 N.W. 447; Rogers v. Rogers, 51 Ohio St. 1, 36 N.E. 310; Shallcross v. Shallcross, 135 Ky. 418, 122 S.W. 223; Kendall v. Kendall, 5 Kan. App. 688, 48 P. 940, 941; In re Culp, 2 Cal.App. 70, 83 P. 89; Phillips v. Phillips, 24 W. Va. 591; Gitsch v. Wight, 61 Utah, 175, 211 P. 705; Purdy v. Ernst, 93 Kans. 157, 143 P. 429; 19 C.J. 352.
The writ of certiorari was sustained.
3. The rule is thus stated in 19 C.J. 352; that proper notice of an application to modify a decree of divorce as to the custody of a minor child should be given to the adverse party, whether required by statute or not.
4. The question of the right of the parents to the custody of the minor child involved the determination of a substantive right. This was litigated and determined in the divorce proceeding. The decree in this respect was final on the conditions then existing, but this did not prevent a subsequent adjudication of the matter. An opportunity for the adverse party to be heard, however, was of the essence of any such proceeding. The denial of this was a denial to petitioner of his day in court.
If the order had been made on the motion of Luvie Moore Abell, it would have been the duty of the court to have denied it under rule 10 of the rules of the district court (4 N.C.L. p. 2477). It will be observed that the exceptions in said rule are cases where no substantive rights are involved.
The section of the Civil Code of Practice of Kansas authorizing the court after a divorce is granted to modify or change any order concerning the custody of the children does not provide for notice.
See authorities cited in note 38 to the text.
As stated by an eminent authority: “Proceedings for modification (as to custody) are in the nature of new proceedings and require proper notice to the opposite party, and new evidence not available in the divorce suit.” 2 Schouler, Marriage and Divorce (6th ed.), sec. 1899.
7. There is no merit in respondents’ claim that applicant is estopped from seeking the writ because he moved to vacate the order and afterwards consented to the setting of the motion to modify the decree for hearing.
City of Los Angeles v. Eighth Judicial District Court, 58 Nev. 1, 67 P.2d 1019.
8. The contention that the writ should not be granted because applicant had a remedy by appeal is also without merit. It would not have been adequate under the circumstances.
An order of this court has been made annulling and setting aside said order of May 14, 1937.

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