Instantly Connect For Your Follansbee Medical Malpractice Consultation When Filling Out Form
Follansbee Medical Malpractice Legal Help
A medical mistake leaves questions that are hard to put down: what went wrong, who was responsible, and whether West Virginia law gives you a way to hold them accountable.
The sections below set out the West Virginia law that applies to malpractice claims and explain how to reach, through needanattorney.net, an attorney in our network who handles them.
Medical Malpractice Under West Virginia Law
Under W. Va. Code § 55-7B-3, a claim has two necessary elements: a failure to meet the degree of care, skill and learning a reasonable, prudent provider in that profession or class would show in the same or similar circumstances, and proximate cause of the injury or death.
If a claim is brought on a loss of chance theory, the plaintiff must also prove, to a reasonable degree of medical probability, that following the accepted standard of care would have resulted in a greater than 25 percent chance of an improved recovery or of survival (W. Va. Code § 55-7B-3).
Not every complication is malpractice. A claim needs both a failure in the care and proof that the failure caused the injury.
Types of Medical Malpractice Cases
Whatever the kind of mistake, a claim comes back to two questions: did the care depart from accepted practice, and did that cause the injury?
Missed or late diagnosis
A late or missed diagnosis can allow an illness to progress. These claims look at what the provider did, what was reasonably available to do, and what an earlier diagnosis would have changed.
Errors in the operating room
A surgical complication is not always a mistake, but a wrong site procedure, a retained object or an avoidable injury during an operation may be. The claim looks at what was done and at what caused the harm.
Errors with medications
A prescription or dosing mistake may involve a physician, a pharmacy or a hospital staff member. A claim looks at who made the error and what it caused.
Birth injuries
Claims about harm at birth look at the care given and ask whether a departure from accepted practice caused the injury, which is why complete records matter.
How Long You Have to File in West Virginia
A medical professional liability action must be commenced within two years of the date of the injury or death, or within two years of the date the person discovers, or with reasonable diligence should have discovered, the injury, whichever last occurs (W. Va. Code § 55-7B-4).
W. Va. Code § 55-7B-4 sets a 10 year ceiling, counted from the medical injury, on any of these actions, except that a child injured before age ten has until the 12th birthday if that is longer (W. Va. Code § 55-7B-4(c)).
Concealment matters: under W. Va. Code § 55-7B-4, fraud or collusion by the provider in hiding or misstating material facts about the injury tolls the filing periods.
If the claim is against a nursing home, an assisted living facility or a skilled nursing unit of an acute care hospital, the period is one year (W. Va. Code § 55-7B-4).
Children and the Filing Deadline
A child under 10 when injured has the longer of two years from the injury and the time until the 12th birthday (W. Va. Code § 55-7B-4).
Because the rule in W. Va. Code § 55-7B-4 turns on the child’s age at the time of the injury, the age on that date should be confirmed early.
Pre Suit Steps in West Virginia
The first step is a notice of claim: W. Va. Code § 55-7B-6 requires service by certified mail on each provider the claimant will join, at least 30 days before filing suit.
A screening certificate of merit has to accompany the notice (W. Va. Code § 55-7B-6): it is signed under oath by a qualified health care provider and a separate one is needed for each provider against whom a claim is made.
The certificate has to state the basis of the expert’s familiarity with the standard of care, the expert’s qualifications, how the standard of care was breached, how the breach resulted in injury or death, and a list of the records reviewed (W. Va. Code § 55-7B-6).
The certificate can be replaced by a statement when the claim is based on a well established theory of liability, and it can follow within 60 days of a statement of intent when time is short (120 days for a nursing home, assisted living facility or a related entity, or for the nursing care part of an acute care hospital) (W. Va. Code § 55-7B-6).
A provider who receives the notice may respond in writing within 30 days, and is entitled to prelitigation mediation on written demand, which has to be concluded within 45 days of the demand (W. Va. Code § 55-7B-6).
The Expert Requirement
The applicable standard of care and the defendant’s failure to meet it are established by the testimony of one or more knowledgeable, competent expert witnesses if required by the court (W. Va. Code § 55-7B-7).
W. Va. Code § 55-7B-7 lists what must be shown before an expert is found competent, including that the opinion is actually held, is stated with reasonable medical probability, and rests on knowledge of the applicable standard of care.
W. Va. Code § 55-7B-7 presumes an expert qualified, subject to rebuttal, if sixty percent of the expert’s professional time went to clinical practice or teaching in the field when the injury occurred.
Compensation Limits for a Malpractice Claim
Compensatory damages for noneconomic loss may not exceed $250,000 for each occurrence, regardless of the number of plaintiffs or defendants or, in a wrongful death case, the number of distributees (W. Va. Code § 55-7B-8).
W. Va. Code § 55-7B-8 allows up to $500,000 for each occurrence for wrongful death, permanent and substantial deformity, loss of a limb or organ system, or a permanent injury that prevents independent self care.
Both limits increase each year with the Consumer Price Index, by an amount not to exceed one hundred fifty percent of the amounts in the statute, and they are not available to a defendant without at least $1,000,000 in medical professional liability insurance for each occurrence (W. Va. Code § 55-7B-8).
That does not set the value of any claim. What can be recovered still depends on the injury, the proof and the share of fault found against each defendant.
Shared Fault and Several Liability
W. Va. Code § 55-7B-9 has the jury assign a percentage of fault to each plaintiff and each defendant, taking into account every alleged party, even one who has already settled.
Judgment is entered for several, but not joint, liability against each defendant in accordance with the percentage of fault attributed to it (W. Va. Code § 55-7B-9).
Listing each provider who touched the care, and the dates, is useful before the first consultation.
When a Patient Dies
Under W. Va. Code § 55-7-6, the personal representative, not the family members individually, brings the wrongful death action.
W. Va. Code § 55-7-6 sets two years from the death as the time to commence a wrongful death action.
What a family may recover after a death is described in W. Va. Code § 55-7-6: solace and companionship damages, lost income and services, and the expenses of care and burial. For a malpractice claim the noneconomic limit in W. Va. Code § 55-7B-8 also has to be considered.
If the Provider Is a Public Entity
A separate act sets two years against a political subdivision from when the cause arose or the injury was or should have been discovered, with a longer period for a child under ten and tolling for concealment or fraud; the act does not cover hospitals of a political subdivision (W. Va. Code § 29-12A-3 and W. Va. Code § 29-12A-6).
Against a political subdivision, punitive damages are prohibited, economic loss is not limited, and noneconomic loss may not exceed $500,000 in favor of any one person, and a defendant with 25 percent or more of the negligence can be jointly and severally liable; the act does not cover hospitals of a political subdivision (W. Va. Code § 29-12A-3 and W. Va. Code § 29-12A-7).
If the care came from a public hospital or clinic, say so early: whether the political subdivision rules apply, and what else is required, depends on the provider.
Where a Brooke County Malpractice Case Is Filed
Under W. Va. Code § 56-1-1, the circuit court of a county where a defendant resides or where the cause of action arose is a proper place to file; for treatment in Follansbee, that can be Brooke County.
Local Courts and Hospitals in Follansbee
Follansbee lies in Brooke County, according to Census Bureau place and county names. Brooke County is part of the 1st Judicial Circuit, and the West Virginia Judiciary gives the clerk’s office address as Brooke County Judicial Center, 620 Main Street, Wellsburg, WV 26070. The West Virginia Office of Emergency Medical Services trauma center list dated December 16, 2022 also names Weirton Medical Center in Weirton, in Brooke County, as an IV. Whichever hospital treated you, request your full records and an itemized bill early, and keep a list of the providers you saw.
Speak With a Follansbee Malpractice Attorney
A short written account of what happened, with the names of the providers and the dates, gives an attorney a useful starting point, even if you are missing some records.
The form on this page sends your details to an attorney in our network who handles medical malpractice claims in West Virginia, so you can talk through what happened and what your options are.
Frequently Asked Questions
What if the hospital or provider is a government entity?
A separate act limits damages against many local government bodies, but it expressly leaves out hospitals of a political subdivision and their employees (W. Va. Code § 29-12A-3), so whether any limit applies depends on who ran the hospital or clinic.
Does West Virginia have a discovery rule for malpractice?
A discovery rule applies, with a 10 year limit from the injury (W. Va. Code § 55-7B-4).
Is a certificate of merit required in West Virginia?
A statement executed under oath by a qualified health care provider setting out the expert’s familiarity with the standard of care, qualifications, how it was breached, how the breach caused the injury, and the records reviewed (W. Va. Code § 55-7B-6).
What if more than one provider was at fault?
Each defendant is responsible for its own percentage of fault (W. Va. Code § 55-7B-9), so the right providers need to be named.
What if the patient was a minor when the injury happened?
A child may have more time. W. Va. Code § 55-7B-4 gives the longer of two years and the time until the 12th birthday for a child who was under 10 at the time of the injury.
What must happen before I can sue a provider in West Virginia?
A notice of claim, served at least 30 days before suit, with a screening certificate of merit (W. Va. Code § 55-7B-6).
Who can serve as an expert in a West Virginia malpractice case?
An expert needs knowledge of the applicable standard of care, a current license and experience with similar conditions, among other things (W. Va. Code § 55-7B-7).
Where to Look Next
If the care happened elsewhere in West Virginia, these pages may be a better starting point.
