West Virginia Medical Malpractice Laws and Statutory Rules

Find out what steps you'll need to take to file a negligence lawsuit against a medical professional in West Virginia.

By , MSLIS · Long Island University

If you've suffered an injury as a result of a health care provider's substandard care in West Virginia, you might be considering a medical malpractice claim. It's important to point out that these cases are almost always extremely complicated—making the help of a good medical malpractice attorney a must—but it can also be useful to understand the general outline of the process before you decide to head to court. Read on to find out more about the basics of West Virginia medical malpractice law, including:

  • the deadline on filing the case in the state's civil court system
  • some of the procedural hoops you'll need to jump through when starting your claim, and
  • the state's statutory cap on damages if your case succeeds.

West Virginia's Statute of Limitations for Medical Malpractice Lawsuits

All states have laws called "statutes of limitations" that set specific—and strictly enforced—time limits for filing a lawsuit in civil court. Medical malpractice statutes of limitations can be especially complex because they often contain a number of separate deadlines, depending on the type of medical negligence at issue in the case. West Virginia's law is no different. The time limits for filing a medical malpractice lawsuit are as follows:

When the 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. The law gives a plaintiff (the person filing the lawsuit) in this situation one year from the date of the medical injury or death, or one year from the date that the person discovers, or "with the exercise of reasonable diligence," should have discovered the injury or death resulting from the underlying medical error, whichever is later. But, under what's called a "statute of repose," the law states that "in no event" can a medical malpractice lawsuit be filed more than ten years after the date of the medical error—even if you didn't know about (and couldn't reasonably have known about) your injuries during those ten years.

When the claim is against another type of health care provider. In this case, a plaintiff has two years from the date of the medical injury or death, or two years from the date the person discovers—or "with the exercise of reasonable diligence, should have discovered"—the injury, whichever is later. But the law applies the same statute of repose as described above in these types of cases, too.

When the patient is a child younger than ten years of age at the time of the injury. In this case, the child (or a parent or guardian) must file the claim within two years of the date of the injury, or before the child's 12th birthday, whichever period is longer.

In all of the situations outlined above the statute of limitations is "tolled" (or paused) for any period of time the health care provider (or a representative) has committed "fraud or collusion by concealing or misrepresenting material facts about the injury."

(W.Va. Code § 55-7B-4 (2022).)

Prerequisites for Filing a Medical Malpractice Lawsuit in West Virginia

In the state's efforts at tort reform, West Virginia legislators have enacted a number of procedural rules that a potential plaintiff in a medical malpractice suit must follow when initiating the claim, including the "notice of claim" and "screening certificate of merit" requirements, as described below.

At least 30 days before filing a medical malpractice lawsuit, a potential plaintiff in a West Virginia medical malpractice lawsuit must send each health care provider who will be named in the case a "notice of claim." The notice must:

  • be sent by certified mail, return receipt requested
  • include a statement of the theory of liability on which the case is based
  • list the names of all health care providers and/or facilities who will be receiving notices of claim, and
  • be accompanied by a "screening certificate of merit."

A "screening certificate of merit" is a written document, executed under oath by a health care provider who qualifies as a medical expert under West Virginia law. The certificate must include:

  • the expert's qualifications
  • the basis for the expert's familiarity with the applicable medical standard of care in the case and how that standard was breached
  • the expert's opinion as to how that breach resulted in injury or death, and
  • a list of all medical records and other information reviewed by the expert when executing the screening certificate of merit.

A separate screening certificate of merit must be provided for each health care provider named in the plaintiff's claim.

This is only a brief overview of these complex prerequisites. For full details on what's required—and for information on the rare cases when the screening certificate of merit might not be needed—see W.Va. Code § 55-7B-6.

The Damages Cap in West Virginia Medical Malpractice Cases

Like many states, West Virginia law limits (or "caps") the amount of compensation ("damages") a plaintiff can receive in a successful medical malpractice case.

And like most states with such limits, West Virginia's caps on compensation apply only to noneconomic damages. Noneconomic damages are intended to compensate for the types of injuries that are difficult to put a specific dollar amount on, such as pain and suffering, mental anguish, and grief. In West Virginia, noneconomic damages in medical malpractice cases are capped at $250,000 per occurrence, adjusted annually for inflation. The cap on noneconomic damages increases to $500,000 per occurrence, also adjusted annually for inflation, in cases involving:

  • wrongful death
  • permanent and substantial physical deformity, loss of use of a limb or loss of a bodily organ system, or
  • permanent physical or mental functional injury that permanently prevents the injured person from being able to independently care for himself or herself and perform life-sustaining activities.

It's important to note that this cap doesn't apply to economic damages, which can include compensation for lost wages, reduced earning capacity, and the costs of past or future medical care. There are no statutory limits to the amount of economic damages you can be awarded in a West Virginia medical malpractice case.

(W.Va. Code § 55-7B-8 (2022).)

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