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Summersville Medical Malpractice Legal Help
When medical care in Summersville goes wrong, the harm is physical, financial and personal at once, and it is hard to know whether what happened is a legal claim.
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.
W. Va. Code § 55-7B-3 sets a threshold for loss of chance theories: a greater than 25 percent chance of an improved recovery or of survival, shown to a reasonable degree of medical probability.
Medical care does not always succeed, and an unhappy outcome is not by itself malpractice; the claim has to connect a failure in care to the injury.
Types of Medical Malpractice Cases
These are among the kinds of care that lead to claims. Each depends on showing that the care departed from accepted medical practice and that the departure caused the harm.
Failure to diagnose
A claim can arise when a condition is missed or identified late. The question is whether the delay or error departed from accepted medical practice and caused harm that earlier treatment would have avoided.
Errors in the operating room
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.
Medication errors
A wrong drug, a wrong dose, a missed allergy or a harmful interaction can injure a patient. These claims ask who in the chain, the prescriber, pharmacist or nurse, made the error and whether it caused the harm.
Childbirth 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.
The West Virginia Filing Deadline
Under W. Va. Code § 55-7B-4, the deadline is the later of two years from the date of the injury or death and two years from the date the injury was or reasonably should have been discovered.
A discovery rule does not reopen the case without limit: no action may be commenced more than 10 years after the medical injury (W. Va. Code § 55-7B-4).
The periods are tolled for any time during which the provider or its representative has committed fraud or collusion by concealing or misrepresenting material facts about the injury (W. Va. Code § 55-7B-4).
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).
Deadlines for Minors in West Virginia
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).
The child’s age on the date of the injury decides which period applies under W. Va. Code § 55-7B-4, so a birth date and a treatment date are worth having ready.
Steps Required Before a Lawsuit
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).
The notice of claim states the theory or theories of liability and lists all providers and facilities notified, and it comes with a screening certificate of merit executed under oath by a qualified health care provider (W. Va. Code § 55-7B-6).
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 (W. Va. Code § 55-7B-6).
The provider has 30 days to respond to the notice, and may demand prelitigation mediation, to be concluded within 45 days (W. Va. Code § 55-7B-6).
The Expert Requirement
Under W. Va. Code § 55-7B-7, the plaintiff establishes the standard of care and the defendant’s failure to meet it through knowledgeable, competent expert witnesses, if the court requires them.
An expert has to be shown to hold the opinion, to be able to testify to it with reasonable medical probability, to know the applicable standard of care, to hold a current license, and to be engaged or qualified in a field with experience diagnosing or treating similar conditions (W. Va. Code § 55-7B-7).
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
West Virginia limits noneconomic damages in a malpractice case to $250,000 for each occurrence, however many plaintiffs and defendants there are (W. Va. Code § 55-7B-8).
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.
Under W. Va. Code § 55-7B-8, the limits are indexed to the Consumer Price Index each year, up to one hundred fifty percent of the statutory amounts, and require the defendant to carry $1,000,000 of insurance per occurrence.
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
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.
Each defendant pays only according to its own percentage of fault, because W. Va. Code § 55-7B-9 calls for several, not joint, liability.
Listing each provider who touched the care, and the dates, is useful before the first consultation.
Wrongful Death Claims in West Virginia
West Virginia requires a wrongful death action to be brought by the personal representative in the name of the deceased person (W. Va. Code § 55-7-6).
W. Va. Code § 55-7-6 sets two years from the death as the time to commence a wrongful death action.
Damages in a wrongful death case can include sorrow, mental anguish and solace, the loss of the decedent’s income and services, medical and hospital expenses and reasonable funeral expenses (W. Va. Code § 55-7-6).
If the Provider Is a Public Entity
If the provider is a political subdivision, W. Va. Code § 29-12A-6 sets two years after the cause of action arose or was discovered, and a shorter period may apply under other provisions of the code.
Under W. Va. Code § 29-12A-7, punitive damages cannot be awarded against a political subdivision, noneconomic loss is capped at $500,000 for any one person, and economic loss is not limited.
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.
Choosing the County to File In
A civil action may be brought in the circuit court of any county where any of the defendants may reside or the cause of action arose (W. Va. Code § 56-1-1). For care received in Summersville, the county where the claim arose may well be Nicholas County.
Local Courts and Hospitals in Summersville
Summersville lies in Nicholas County, according to Census Bureau place and county names. In Summersville, the West Virginia Judiciary lists the clerk for the 16th Judicial Circuit and Nicholas County at Nicholas County Courthouse, 700 Main Street, Suite 5, Summersville, WV 26651. The state trauma center list from the Office of Emergency Medical Services, dated December 16, 2022, shows Summersville Regional Medical Center in Summersville as a Level IV trauma center. Ask the hospital’s records office for your complete chart and itemized bill, and note which doctors and nurses were involved.
Start Your Summersville Medical Malpractice Claim
If you believe medical care in Summersville caused you or a family member harm, a good first step is to write down what happened, when it happened and who was involved, and to gather the records and bills you already have.
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
Is there a different time limit for public hospitals in West Virginia?
Against a political subdivision, punitive damages are not allowed and noneconomic loss is limited to $500,000 for one person (W. Va. Code § 29-12A-7).
Is there a final cutoff for a malpractice claim in West Virginia?
W. Va. Code § 55-7B-4 allows two years from discovery and stops all claims 10 years after the injury.
What is a screening certificate of merit?
Yes, with the notice of claim, unless the claim rests on a well established theory that needs no expert testimony, in which case a statement of the basis of liability is filed instead (W. Va. Code § 55-7B-6).
Can I recover from every provider who contributed to the harm?
The fact finder assigns a percentage of fault to each defendant, and judgment is several, not joint, according to those percentages (W. Va. Code § 55-7B-9).
What if the patient was a minor when the injury happened?
For a child under 10 when injured, two years from the injury or until the 12th birthday, whichever is longer (W. Va. Code § 55-7B-4).
What is a notice of claim 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?
The standard of care and the failure to meet it are established through expert testimony if the court requires it, and an expert has to meet the foundation requirements of W. Va. Code § 55-7B-7.
Other Pages That May Help
If your matter is in another part of West Virginia, start from the directory or a nearby community page.
