West Virginia Medical Malpractice Laws

If you're filing a West Virginia medical malpractice lawsuit, here are a few procedural rules and state laws you need to know about.

By , J.D.

Before you decide to file a medical malpractice lawsuit in West Virginia, be aware that these cases are notoriously complex. Strict procedural rules need to be obeyed, volumes of medical records need to be sifted through and analyzed, and the plaintiff's "burden of proof" is substantial. In this article, we'll take a look at the West Virginia statute of limitations deadline for medical malpractice lawsuits, the state's "Screening Certificate of Merit" requirement, and the cap on damages in these kinds of cases.

The West Virginia Medical Malpractice Statute of Limitations

If you are thinking about filing a medical malpractice lawsuit in West Virginia, the first thing you need to be aware of is the statute of limitations. This is a state law that puts a strict limit on the amount of time you have to get your case started in the state's civil court system.

West Virginia's statute of limitations for medical malpractice lawsuits against a health care provider says that this kind of case "must be commenced within two years of the date of such injury, or within two year of the date when such person discovers, or with the exercise of reasonable diligence, should have discovered such injury, whichever last occurs."

However, the statute of limitations is one year from the date of the injury or death, or "within one year of the date when such person discovers, or with the exercise of reasonable diligence, should have discovered such injury or death," whichever is later, if your claim is against:

  • a nursing home
  • an assisted living facility
  • a part of a hospital providing intermediate or skilled nursing care, or
  • an employee of any of those facilities

In either of these situations, West Virginia law states that, "in no event shall any such action be commenced more than ten years after the date of the medical injury." This is known as a "statute of repose," and it means that if more than ten years have passed since the malpractice occurred, the lawsuit is time-barred, no matter how serious the medical error might have been, and regardless of whether the patient had a reasonable opportunity to discover that he or she was harmed by it.

Finally, the statute of limitations is "tolled"—meaning that the "clock" is stopped from running—for any time period where the defendant health care provider "committed fraud or collusion by concealing or misrepresenting material facts about the injury."

Having read all of this, you might be wondering what happens if West Virginia's statute of limitations deadline has passed but you try to file your medical malpractice lawsuit anyway. In that scenario, it's a safe bet that the doctor or health care facility you're trying to sue will ask the court to dismiss the case, and the court will grant the request. If that happens, that will be the end of your lawsuit. That's why it's so important to comply with the statute of limitations in a medical malpractice case.

You can read the full text of West Virginia's medical malpractice statute of limitations online at West Virginia Code section 55-7B-4.

Notice of Claim and "Screening Certificate of Merit" in West Virginia Medical Malpractice Cases

At least 30 days prior to filing a medical malpractice lawsuit, West Virginia Code section 55-7B-6 requires the plaintiff to send a "notice of claim" to each health care provider being sued. This notice must be sent via certified mail, and it must include:

  • a statement of the grounds for the lawsuit, and the theory of liability on which it is based
  • a list of all health care providers receiving the notice, and
  • a "screening certificate of merit."

The "screening certificate of merit" is a written statement by a health care provider who qualifies as an "expert" under West Virginia civil court rules. In the statement, the medical expert must describe his or her:

  • qualifications as an expert under West Virginia law
  • familiarity with the medical standard of care appropriate to the circumstances under which the plaintiff was treated (West Virginia defines this "standard of care" as "that degree of care, skill and learning required or expected of a reasonable, prudent health care provider in the profession or class to which the health care provider belongs acting in the same or similar circumstances")
  • opinion as to how the defendant failed to provide treatment in line with the applicable standard of care, and how that failure resulted in injury to the plaintiff.
This is a simplified explanation of the "screening certificate of merit" requirement. Check out the full details at West Virginia Code section 55-7B-6.

West Virginia's Medical Malpractice Damages Cap

Like a number of states, West Virginia has legislated a "cap" on the amount of compensation a plaintiff can receive in a medical malpractice case. The controversial impact of laws like this is that, even where a plaintiff establishes the defendant's liability for malpractice, there is a limit on the actual amount of damages the plaintiff can receive, regardless of the extent of the plaintiff's specific losses.

West Virginia puts a $250,000 per-occurrence cap, adjusted annually for inflation, on non-economic damages in medical malpractice cases. This cap bumps up to $500,000, also adjusted annually for inflation, for non-economic damages if the medical malpractice resulted in certain catastrophic damages including wrongful death, permanent and serious disfigurement, or an injury that permanently prevents the plaintiff from being able to care for him/herself and perform life-sustaining activities. For the details, see West Virginia Code section 55-7B-8.

So, what are these all-important "non-economic damages"? In any injury case, non-economic damages include compensation for things like pain and suffering, emotional distress, and loss of enjoyment of life. Non-economic damages are said to be more "subjective" from plaintiff to plaintiff, and they're not so easy to capture with a dollar amount.

Remember that West Virginia does not cap economic damages in medical malpractice cases. Economic (sometimes called "special") medical malpractice damages typically consist of payment for past and future medical care, reimbursement of lost income, compensation for lost earning capacity, and other financial losses that can be attributed to the defendant's malpractice.

This article provides a brief summary of some of the West Virginia laws that any medical malpractice plaintiff needs to have in mind. If you've got questions about how the state's laws will affect your potential situation, an experienced West Virginia medical malpractice attorney will have the answers.

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