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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.
When a Provider's Care Becomes a Malpractice Claim
West Virginia’s Medical Professional Liability Act requires proof of two things: that the provider failed to exercise the care, skill and learning expected of a reasonable, prudent provider in the same profession or class acting in the same or similar circumstances, and that the failure was a proximate cause of the injury or death (W. Va. Code § 55-7B-3).
When the claim is that a failure to follow the standard of care cost the patient a chance of recovery, W. Va. Code § 55-7B-3 requires proof, to a reasonable degree of medical probability, that proper care would have given a greater than 25 percent chance of improvement or survival.
Not every complication is malpractice. A claim needs both a failure in the care and proof that the failure caused the injury.
Situations That Can Lead to a Malpractice Claim
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
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
Surgery claims may involve an operation on the wrong site or patient, an instrument or object left in the body, damage to nearby structures, or a failure in anesthesia or aftercare. Each is looked at for whether it departed from accepted practice and caused the harm.
Prescription and dosing mistakes
Medication claims often start with a mistake in ordering, dispensing or giving a drug. The question is where in the process the care departed from accepted practice and whether the error caused the harm.
Injuries during pregnancy or delivery
When a mother or baby is harmed before, during or soon after delivery, a claim asks whether the care departed from accepted practice and whether that caused the injury. These cases usually depend heavily on the medical records.
Filing Deadlines Under West Virginia Law
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).
Even with a late discovery, W. Va. Code § 55-7B-4 bars an action brought more than 10 years after the date of the medical injury. 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)).
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).
When the Patient Is a Child
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 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.
What Must Happen Before You File
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.
W. Va. Code § 55-7B-6 lists five things the certificate states with particularity: the expert’s familiarity with the standard of care, qualifications, the breach, the resulting injury or death, and the materials reviewed.
Where no expert testimony is needed, a statement of the basis of liability takes the place of the certificate, and where time is short, a statement of intent allows 60 days to provide it, or 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).
Expert Testimony in a West Virginia Malpractice Case
West Virginia law has the standard of care proved by expert testimony when the court requires it (W. Va. Code § 55-7B-7), which makes finding the right expert an early task.
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).
What West Virginia Law Says About Damage Limits
A malpractice plaintiff in West Virginia faces a $250,000 limit on noneconomic damages for each occurrence, with the exceptions in the next paragraph (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.
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.
The lack of a statutory limit says nothing about what a particular claim is worth, which depends on the harm, the evidence and how fault is divided.
Several Liability in West Virginia
Under W. Va. Code § 55-7B-9, the verdict form asks for the percentage of fault of each plaintiff and each defendant, and settled parties are considered in assessing it.
Each defendant pays only according to its own percentage of fault, because W. Va. Code § 55-7B-9 calls for several, not joint, liability.
Because fault can be assigned to providers who are not defendants, identifying every provider involved in the care early matters.
Wrongful Death Claims in West Virginia
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).
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).
Claims Against Government Health Care Providers
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).
Whether these rules apply to a particular malpractice claim, and what other steps are needed against a state or county provider, depends on who employed the provider, so it is worth telling the attorney at the start whether the hospital or clinic was public.
Venue for a Claim From Bluefield
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 Bluefield, the county where the claim arose may well be Mercer County.
The Court and Hospitals Behind a Bluefield Claim
Mercer County is the county the Census Bureau assigns to Bluefield. In Princeton, the West Virginia Judiciary lists the clerk for the 13th Judicial Circuit and Mercer County at Mercer County Courthouse, 1501 Main Street, Princeton, WV 24740. In Mercer County, Princeton Community Hospital in Princeton is listed as an IV by the West Virginia Office of Emergency Medical Services (list dated December 16, 2022). 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 Bluefield Malpractice Attorney
People often start with a simple timeline of the care they received in Bluefield, along with discharge papers, test results and any letters from the provider or the insurer.
Use the form on this page to be matched with an attorney in our network who handles West Virginia medical malpractice claims. Asking early leaves more time for records and expert review.
Frequently Asked Questions
Does the deadline change for a child injured by medical care?
Yes. 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 qualifications must an expert have in West Virginia?
Sixty percent of professional time in clinical practice or teaching in the field at the time of the injury gives a rebuttable presumption of qualification (W. Va. Code § 55-7B-7).
Is there a wrongful death claim for malpractice in West Virginia?
Two years after the death (W. Va. Code § 55-7-6), and the personal representative brings the action.
Where is a malpractice lawsuit from Bluefield filed?
Venue follows W. Va. Code § 56-1-1: any county where a defendant resides or the cause of action arose, which for care received in Bluefield may be Mercer County.
Does West Virginia limit what I can recover for medical malpractice?
Yes, for noneconomic loss: $250,000 per occurrence, $500,000 in the cases listed in W. Va. Code § 55-7B-8, with an annual inflation increase.
How is fault divided among several providers?
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).
Can I claim for a lost chance of survival in West Virginia?
West Virginia allows loss of chance theories with a threshold of a greater than 25 percent chance of improvement or survival, shown to a reasonable degree of medical probability (W. Va. Code § 55-7B-3).
Nearby Communities We Serve
If the care happened elsewhere in West Virginia, these pages may be a better starting point.
