Medical Malpractice Settlement Agreement

MEDICAL MALPRACTICE SETTLEMENT AGREEMENT AND MUTUAL RELEASE

(West Virginia — Medical Professional Liability Act)

1. PARTIES & RECITALS

1.1 Parties

This Medical Malpractice Settlement Agreement and Mutual Release (the "Agreement") is entered into as of [EFFECTIVE DATE] by and between:

(a) [CLAIMANT FULL LEGAL NAME], an individual residing at [ADDRESS] ("Claimant"); and

(b) [PROVIDER FULL LEGAL NAME], [a West Virginia professional corporation / hospital / individual physician licensed under W. Va. Code § 30-3-1 et seq.], with principal office at [ADDRESS] ("Provider"); and

(c) [INSURER, IF SIGNATORY], the professional liability insurer for Provider ("Insurer").

Each a "Party"; collectively, the "Parties."

1.2 Recitals

A. Claimant alleges that Provider's medical services rendered on or about [DATE(S) OF CARE] at [FACILITY] breached the applicable standard of care, resulting in [DESCRIBE INJURY/DEATH] (the "Claim").

B. The Claim was or could have been asserted as a "medical professional liability action" within the meaning of W. Va. Code § 55-7B-2(i), and is or was the subject of an action styled [CASE CAPTION], pending or filed in the Circuit Court of [COUNTY] County, West Virginia (Civil Action No. [__________]) (the "Action").

C. Claimant served (or would have served) a Notice of Claim and Screening Certificate of Merit on Provider under W. Va. Code § 55-7B-6.

D. The Parties wish to fully and finally resolve the Claim and the Action without any admission of liability, in compromise of disputed claims, and in conformity with the Medical Professional Liability Act, W. Va. Code § 55-7B-1 et seq.

NOW, THEREFORE, in consideration of the mutual promises herein and other good and valuable consideration, the receipt and sufficiency of which are acknowledged, the Parties agree as follows.

2. DEFINITIONS

"Action" — has the meaning in Recital B.

"Claim" — has the meaning in Recital A and includes all known and unknown claims of medical professional liability arising from the care described in Recital A.

"Confidential Information" — Section 5.3.

"Effective Date" — the date of last signature.

"MPLA" — the West Virginia Medical Professional Liability Act, W. Va. Code § 55-7B-1 et seq.

"Medicare/Medicaid Liens" — any claim or right of reimbursement asserted by the Centers for Medicare & Medicaid Services, the West Virginia Department of Health and Human Resources Bureau for Medical Services, or any Medicare Advantage / Part C / Part D plan.

"Released Claims" — Section 3.3.

"Settlement Amount" — the consideration set forth in Section 3.1.

"NPDB" — the National Practitioner Data Bank established under 42 U.S.C. §§ 11131-11137.

3. SETTLEMENT TERMS

3.1 Settlement Amount

Provider and/or Insurer shall pay Claimant a total of $[AMOUNT] (the "Settlement Amount"), allocated as follows:

3.2 Payment Method

☐ Lump sum — paid within [30] days of Effective Date and receipt of executed releases, W-9, and lien resolution documentation.
☐ Structured settlement — periodic payments per the Periodic Payment Schedule attached as Exhibit A, funded by qualified assignment under I.R.C. § 130 to [ASSIGNEE] with annuity issued by [LIFE INSURER, A.M. Best rating ≥ A].

3.3 Released Claims; Scope of Release

In consideration of the Settlement Amount, Claimant, on behalf of Claimant and Claimant's heirs, executors, administrators, successors, and assigns (the "Releasing Parties"), hereby fully and forever releases, acquits, and discharges Provider, Insurer, and each of their respective parents, subsidiaries, affiliates, predecessors, successors, officers, directors, employees, agents, attorneys, and insurers (the "Released Parties") from any and all claims, demands, actions, causes of action, damages, costs, attorneys' fees, expenses, and liabilities of every kind, whether known or unknown, asserted or unasserted, accrued or unaccrued, in law or in equity, arising out of or in any way related to the Claim, the Action, or the care described in Recital A.

3.4 Unknown Claims

The Releasing Parties expressly assume the risk of any presently unknown claims and waive any right to assert that any provision of West Virginia law preserves unknown claims, including any common-law equivalent of California Civil Code § 1542.

3.5 No Admission of Liability

This Agreement is a compromise of disputed claims. Nothing herein constitutes an admission of liability, fault, or wrongdoing by any Party.

4. LIENS, OFFSETS & TAX

4.1 Medicare Secondary Payer

The Parties acknowledge their obligations under 42 U.S.C. § 1395y(b)(2) and the SMART Act. Claimant represents that [Claimant is / is not] a Medicare beneficiary. If Claimant is a Medicare beneficiary or has a reasonable expectation of Medicare entitlement within thirty (30) months:

(a) Claimant shall obtain a Conditional Payment Letter and Final Demand from CMS through the Benefits Coordination & Recovery Center;
(b) The Parties shall report this Settlement to CMS under Section 111 of the MMSEA (42 U.S.C. § 1395y(b)(8));
(c) A Medicare Set-Aside Arrangement of $[AMOUNT] ☐ is / ☐ is not established, with administration by [professional administrator / self-administered].

4.2 Medicaid Lien

Claimant shall resolve any West Virginia Medicaid lien with the WV DHHR Bureau for Medical Services prior to distribution, consistent with W. Va. Code § 9-5-11 and Arkansas Dep't of Health & Human Servs. v. Ahlborn, 547 U.S. 268 (2006).

4.3 Other Liens

Claimant warrants disclosure and resolution of all hospital, ERISA, military (TRICARE/VA), workers' compensation, and attorney charging liens. Claimant indemnifies Released Parties under Section 6.1.

4.4 Tax Treatment

The Parties intend the portion of the Settlement Amount allocated to personal physical injuries to qualify for exclusion from gross income under I.R.C. § 104(a)(2). Each Party is responsible for its own taxes, and neither Party provides tax advice. Claimant should consult independent tax counsel.

4.5 NPDB Reporting

The Parties acknowledge that any payment made for the benefit of a practitioner in settlement of a written claim for medical malpractice must be reported to the National Practitioner Data Bank under 42 U.S.C. § 11131 and 45 C.F.R. Part 60. Provider/Insurer shall make any required NPDB report; Claimant shall not interfere with such reporting.

5. CONFIDENTIALITY & NON-DISPARAGEMENT

5.1 Confidentiality. The terms of this Agreement, including the Settlement Amount, are confidential. Claimant and Claimant's counsel shall not disclose the terms except:
(a) To Claimant's accountants, tax advisors, attorneys, and immediate family on a need-to-know basis bound by equivalent confidentiality;
(b) As required by court order, subpoena, NPDB reporting, CMS/Medicaid reporting, or tax authority;
(c) To enforce this Agreement.

5.2 Non-Disparagement. Each Party agrees not to make any public statement disparaging the other Party concerning the Claim. Nothing herein restricts truthful testimony, regulatory complaints to the WV Board of Medicine, or statements protected by law.

5.3 Liquidated Damages. Material breach of Section 5.1 shall entitle the non-breaching Party to liquidated damages of $[AMOUNT] per disclosure, plus injunctive relief and attorneys' fees.

6. REPRESENTATIONS, WARRANTIES & INDEMNITY

6.1 Claimant Representations.
(a) Claimant has full capacity and authority to execute this Agreement;
(b) Claimant has not assigned any portion of the Claim;
(c) Claimant has disclosed all liens and reimbursement claims;
(d) Claimant has had the opportunity to consult independent counsel and tax advisors;
(e) Claimant indemnifies and holds harmless the Released Parties from any lien, subrogation claim, or assignment asserted by any third party arising from the Claim or this Settlement.

6.2 Provider/Insurer Representations. Authority; binding obligation; funds available to pay the Settlement Amount; compliance with NPDB and Section 111 reporting.

6.3 Court Approval (if required). If Claimant is a minor, protected person, or wrongful-death beneficiary, the Parties shall obtain approval from the Circuit Court of [COUNTY] County, West Virginia under W. Va. R. Civ. P. 17 and applicable wrongful-death procedures, W. Va. Code § 55-7-6.

7. DISPUTE RESOLUTION

7.1 Governing Law. West Virginia law governs, without regard to conflicts principles.

7.2 Forum. Exclusive jurisdiction in the Circuit Court of [COUNTY] County, West Virginia, or where federal jurisdiction exists, the U.S. District Court for the [Northern/Southern] District of West Virginia.

7.3 Optional Arbitration. ☐ Disputes arising under this Agreement (excluding lien-resolution and CMS/Medicaid matters) may be submitted to confidential binding arbitration before a single arbitrator under the AAA Commercial Arbitration Rules in [CITY], West Virginia, under the West Virginia Revised Uniform Arbitration Act, W. Va. Code § 55-10-8 et seq.

7.4 Jury Trial Waiver. ☐ EACH PARTY KNOWINGLY WAIVES TRIAL BY JURY IN ANY ACTION TO ENFORCE THIS AGREEMENT.

7.5 Attorneys' Fees. Prevailing Party in any enforcement action recovers reasonable attorneys' fees and costs.

8. GENERAL PROVISIONS

8.1 Entire Agreement. This Agreement, with all Exhibits, is the entire agreement and supersedes all prior negotiations.
8.2 Amendments. Only in writing, signed by all Parties.
8.3 Severability. Invalid provisions are severable; the court may reform to preserve enforceability.
8.4 Counterparts; Electronic Signatures. Permitted under the West Virginia Uniform Electronic Transactions Act, W. Va. Code § 39A-1-1 et seq.
8.5 Notices. Written; personal delivery, overnight courier, or certified mail to the addresses below.
8.6 Construction. Headings for convenience; drafter rule waived; "including" means "including without limitation."
8.7 Dismissal of Action. Within [14] days after receipt of the Settlement Amount and execution of releases, Claimant shall file a Stipulation of Dismissal with prejudice of the Action, each Party to bear its own costs and fees except as expressly provided.

9. ACKNOWLEDGMENTS

The Parties acknowledge:

☐ They have read and understand this Agreement;
☐ They have had an opportunity to consult independent counsel of their choosing;
☐ They enter this Agreement voluntarily, free of duress or undue influence;
☐ They understand this Agreement is FINAL and BINDING, releasing all Released Claims, including unknown claims;
☐ Tax advice has not been provided by opposing counsel; independent tax advice is recommended;
☐ Medicare/Medicaid lien resolution responsibilities have been explained.

10. EXECUTION

IN WITNESS WHEREOF, the Parties have executed this Agreement as of the Effective Date.

Notarization (if required by court order):

State of West Virginia, County of __________: Subscribed and sworn before me this ____ day of __________, 20__. Notary Public: ☐ ____________________. My commission expires: [__/__/____].

11. EXHIBITS

• Exhibit A — Periodic Payment Schedule (if structured)
• Exhibit B — Medicare Set-Aside Arrangement (if applicable)
• Exhibit C — Lien Resolution Documentation
• Exhibit D — Stipulation of Dismissal With Prejudice
• Exhibit E — IRS Form W-9

Sources & References

• W. Va. Code § 55-7B-1 et seq. (Medical Professional Liability Act)
• W. Va. Code § 55-7B-6 (Pre-Suit Notice; Screening Certificate of Merit)
• W. Va. Code § 55-7B-7 (Informed consent expert testimony)
• W. Va. Code § 55-7B-8 (Noneconomic damages cap; CPI-indexed since 2004, max 150% of base)
• W. Va. Code § 55-7B-9 (Several liability)
• W. Va. Code § 55-7-6 (Wrongful death)
• W. Va. Code § 9-5-11 (Medicaid lien)
• 42 U.S.C. §§ 11131-11137 (NPDB); 45 C.F.R. Part 60
• 42 U.S.C. § 1395y(b) (Medicare Secondary Payer); Section 111 of MMSEA
• I.R.C. § 104(a)(2); § 130 (qualified assignment)
• Arkansas Dep't of Health & Human Servs. v. Ahlborn, 547 U.S. 268 (2006)

This template is provided for informational purposes only and must be reviewed by qualified West Virginia counsel before use.