What is the West Virginia statute of limitations for a medical malpractice lawsuit?
First, a little background: A statute of limitations is a law that limits the amount of time you have to file a lawsuit after you have suffered some type of loss or injury.
Like a lot of states, West Virginia has a dedicated statute of limitations for medical malpractice lawsuits, and it specifies 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.”
Keep in mind that if you are relying on the second part of this statute -- the “discovery rule” -- as the plaintiff you have the burden of proving that you did not discover, and you could not have reasonably discovered, the occurrence of the malpractice until the time when you finally took action.
You can read the full text of West Virginia’s medical malpractice statute of limitations online at West Virginia Code section 55-7B-4.
The West Virginia law goes on to state that, “in no event shall any such action be commenced more than ten years after the date of 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 may 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 understand the statute of limitations. Learn more about the Statute of Limitations in a Medical Malpractice Case.
by: David Goguen, J.D.