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Medical Malpractice Attorneys for New Martinsville, WV
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
To succeed in West Virginia, a patient has to show both a departure from the care, skill and learning expected of a reasonable, prudent provider in the same profession or class and that the departure was a proximate cause of the harm (W. Va. Code § 55-7B-3).
A loss of chance claim has an added requirement in West Virginia: proof to a reasonable degree of medical probability of a greater than 25 percent chance that proper care would have improved recovery or survival (W. Va. Code § 55-7B-3).
An unexpected outcome does not prove a mistake. What matters is whether care in New Martinsville departed from accepted practice and whether that departure caused the harm.
Common Medical Malpractice Claims
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?
Failure to diagnose
Diagnostic claims turn on timing: what was known when, what a careful provider would have done with the same symptoms, and what an earlier diagnosis would have changed.
Mistakes during surgery
Problems before, during or after an operation can all lead to claims: planning, the procedure itself, anesthesia and follow up care. The question is whether the care departed from accepted practice and caused the injury.
Prescription and dosing mistakes
Giving the wrong medication, the wrong amount or a drug that conflicts with something the patient already takes can cause serious harm. A claim looks at where in the process the care fell short.
Harm to a mother or baby at birth
Birth injury claims examine monitoring, decisions about delivery and care after the baby is born, and ask whether any departure from accepted practice caused the harm.
The West Virginia Filing Deadline
West Virginia allows two years from the injury or death, or two years from discovery, whichever is later (W. Va. Code § 55-7B-4); discovery means when the patient found, or with reasonable diligence should have found, the injury.
W. Va. Code § 55-7B-4 sets a 10 year ceiling, counted from the medical injury, on any of these actions.
W. Va. Code § 55-7B-4 tolls the periods for a provider’s fraud or collusion in concealing or misrepresenting material facts about the injury.
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).
Injuries to Minors Under West Virginia Law
West Virginia gives a child injured before the age of 10 until the 12th birthday or two years from the injury, whichever is longer (W. Va. Code § 55-7B-4).
The statute speaks of a minor who was under the age of 10 at the time of the injury, so the date of the injury and the child’s age on that date are the first facts to establish.
Notice of Claim and Certificate of Merit
Before a lawsuit, West Virginia requires a notice of claim served by certified mail on each health care provider the claimant will join, at least 30 days before the complaint is filed (W. Va. Code § 55-7B-6).
With the notice, the claimant provides a screening certificate of merit executed under oath by a qualified health care provider, as W. Va. Code § 55-7B-6 requires.
What the certificate must contain is spelled out in W. Va. Code § 55-7B-6: the expert’s basis and qualifications, how the standard was breached, how the breach caused the injury or death, and the records reviewed.
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).
Mediation can come before the lawsuit: a provider that receives the notice may demand it, and W. Va. Code § 55-7B-6 requires it to be concluded within 45 days.
Expert Witnesses and the Standard of Care
W. Va. Code § 55-7B-7 calls for one or more knowledgeable, competent expert witnesses on the standard of care and the failure to meet it, if required by the court.
The foundation for an expert’s testimony under W. Va. Code § 55-7B-7 includes knowledge of the applicable standard of care, a current license and experience diagnosing or treating similar conditions.
A sixty percent clinical practice or teaching record in the relevant field at the time of the injury gives a rebuttable presumption of qualification (W. Va. Code § 55-7B-7).
Compensation Limits for a Malpractice Claim
Under W. Va. Code § 55-7B-8, the starting limit on noneconomic compensatory damages is $250,000 per occurrence, regardless of the number of plaintiffs, defendants or wrongful death distributees.
The higher limit of $500,000 per occurrence applies to wrongful death and to the permanent injuries listed in W. Va. Code § 55-7B-8.
The dollar figures in W. Va. Code § 55-7B-8 are not fixed: they rise with the Consumer Price Index, capped at one hundred fifty percent, and a defendant without $1,000,000 of coverage per occurrence cannot use them.
The absence of a limit does not mean any amount is guaranteed; the outcome of a claim depends on its facts and the evidence.
Shared Fault and Several Liability
Fault is allocated by percentage under W. Va. Code § 55-7B-9, and the fact finder considers the fault of all alleged parties, including anyone who settled the same injury claim.
When a hospital and a physician are both named, W. Va. Code § 55-7B-9 makes each responsible for its own percentage, not for the whole.
Records that show every provider involved in the care help an attorney see how fault may be shared.
When a Patient Dies
A wrongful death action is brought by and in the name of the personal representative of the deceased person (W. Va. Code § 55-7-6).
Two years after the death is the limit for a wrongful death action in West Virginia (W. Va. Code § 55-7-6).
W. Va. Code § 55-7-6 lists what a verdict includes: sorrow, mental anguish and solace, reasonably expected loss of income and services, care and hospital expenses, and funeral expenses.
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).
A claim involving a public provider can carry rules of its own, so tell the attorney at the first consultation who ran the hospital or clinic.
Where a Wetzel 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 New Martinsville, that can be Wetzel County.
Local Courts and Hospitals in New Martinsville
New Martinsville lies in Wetzel County, according to Census Bureau place and county names. In New Martinsville, the West Virginia Judiciary lists the clerk for the 2nd Judicial Circuit and Wetzel County at Wetzel County Courthouse, 200 Main Street, New Martinsville, WV 26155. The state trauma center list from the Office of Emergency Medical Services, dated December 16, 2022, shows Wetzel County Hospital in New Martinsville as a Level IV trauma center. If your care took place at a hospital like this, ask for the complete chart and an itemized bill, and write down every provider who treated you.
Speak With a New Martinsville Malpractice Attorney
People often start with a simple timeline of the care they received in New Martinsville, along with discharge papers, test results and any letters from the provider or the insurer.
Fill out the form above and we will work to put you in touch with an attorney in our network who handles malpractice claims in West Virginia. Starting sooner gives you more room to gather records.
Frequently Asked Questions
How much can I recover for pain and suffering in West Virginia?
Noneconomic damages are limited to $250,000 for each occurrence, or $500,000 for wrongful death and certain permanent injuries, adjusted each year for inflation (W. Va. Code § 55-7B-8).
What is a loss of chance claim?
It is a claim that the care reduced the chance of a better outcome. W. Va. Code § 55-7B-3 allows it if the lost chance was greater than 25 percent.
What is the filing deadline for a malpractice claim in West Virginia?
Generally two years, counted from the injury or from its discovery, whichever is later, with a 10 year outer limit (W. Va. Code § 55-7B-4).
What must happen before I can sue a provider in West Virginia?
A notice of claim has to be served by certified mail on each provider at least 30 days before filing, together with the screening certificate of merit or a statement allowed in its place (W. Va. Code § 55-7B-6).
What if the hospital or provider is a government entity?
Possibly, but a separate act that sets two years against a political subdivision (W. Va. Code § 29-12A-6) expressly leaves out hospitals of a political subdivision and their employees (W. Va. Code § 29-12A-3), so an attorney should confirm which rules apply to your claim.
In what county would a New Martinsville claim be brought?
W. Va. Code § 56-1-1 allows the county where the cause of action arose or where a defendant resides, so Wetzel County is often one option for care in New Martinsville.
Is there a final cutoff for a malpractice claim in West Virginia?
Yes. The two years can run from discovery, but no action may be commenced more than 10 years after the date of the medical injury (W. Va. Code § 55-7B-4). A child injured before age ten has until the 12th birthday if that is longer, and the periods are tolled while the provider conceals or misstates the facts through fraud or collusion (W. Va. Code § 55-7B-4(c) and (d)).
Other Pages That May Help
If your matter is in another part of West Virginia, start from the directory or a nearby community page.
