Medical malpractice law in West Virginia has embraced some tort reform concepts while retaining other claimant-friendly provisions. While damage caps are in place, they are fairly high in comparison with those in place in other states. "Joint and several liability" is the law of the land in nearly every case where there are multiple defendants, meaning that claimants can collect the full amount of any judgment from one physician. Read on to find out more about the basics of West Virginia medical malpractice law.
West Virginia uses a two-year statute of limitations for medical malpractice cases, meaning that a plaintiff has two years to go to court and get the case started. In claims involving an injury (not death), the two-year period begins at either the time of the injury or the date when the claimant reasonably should have discovered the injury. In cases involving death caused by malpractice, the claim must be brought within two years of the date of death.
In medical malpractice cases involving claimants under the age of ten, the statute of limitations is slightly longer. Claims must be brought within two years of the date of the injury or prior to the claimant’s twelfth birthday, whichever period is longer.
West Virginia does not have any mediation or arbitration requirements. Parties are free to mediate or arbitrate should they so choose.
Expert testimony is required to both establish and prove the medical standard of care in a West Virginia medical malpractice case.
Medical experts in West Virginia need to “be engaged or qualified in the same or substantially similar medical field as the defendant health care provider” according to W. Va. Code Sec. 55-7B-7. This means that a podiatrist cannot provide expert testimony implicating a brain surgeon in a malpractice case. This rule is followed except in cases deemed simple enough where “common knowledge” would suffice or the doctrine of res ipsa loquitur is being relied upon, meaning that the defendant's wrongful action "speaks for itself."
West Virginia caps non-economic losses (which include pain and suffering, emotional distress, lost enjoyment) in medical malpractice claims at $250,000 ($500,000 in certain cases of catastrophic injury or wrongful death) per claim. This statute has already survived a challenge based on constitutionality. Economic losses are not capped, so medical expenses, lost income, and other calculable damages aren't limited by any law.
West Virginia, unlike most states, does not require physicians to carry malpractice insurance. West Virginia also does not have a state Patient Compensation Fund.
Joint and several liability is the law of the land in West Virginia, meaning that in cases with multiple responsible defendants, each defendant care provider is liable for the entirety of a verdict, regardless of actual percentage of fault. The only exception to this rule is where an individual physician’s responsibility is found to share less than 25% of the overall negligence. In that instance, the provider is only responsible for a pro-rated share of the verdict, based on percentage of fault.
West Virginia medical malpractice law also employs a modified comparative negligence system with regard to fault of the claimant. In West Virginia, a claimant’s action is barred if his negligence equals or surpasses the combined negligence of all the other parties in the case. If the claimant’s negligence is less than that of the defendants’, any recovery will be reduced by the proportion of the claimant’s own negligence.