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Your Charleston Medical Malpractice Attorney
If you or someone you love was hurt by a doctor, nurse or hospital in Charleston, you may be dealing with new medical bills, lost work and worry about what comes next.
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.
A bad result alone is not enough. The question is whether the care departed from accepted practice and whether that departure, rather than the underlying illness or a known risk, caused the harm.
Situations That Can Lead to a Malpractice Claim
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?
Diagnostic errors
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.
Surgical mistakes
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.
Prescription and dosing mistakes
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.
Childbirth injuries
A delivery that goes wrong can leave lasting harm. A claim looks at what the providers knew, what they did and whether that caused the injury.
Time Limits for a West Virginia Malpractice Claim
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.
There is an outer limit: in no event may an action be commenced more than 10 years after the date of the medical injury (W. Va. Code § 55-7B-4).
If the provider concealed or misrepresented material facts about the injury, W. Va. Code § 55-7B-4 tolls the limitation periods for as long as that fraud or collusion lasted.
For nursing homes, assisted living facilities and the skilled nursing parts of acute care hospitals, W. Va. Code § 55-7B-4 sets one year from the injury or from discovery, whichever last occurs, and no more than 10 years after the injury.
Injuries to Minors Under West Virginia Law
Under W. Va. Code § 55-7B-4, an action for an injury to a minor under 10 must be commenced within two years of the injury or before the minor’s 12th birthday, whichever gives more time.
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.
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).
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).
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.
W. Va. Code § 55-7B-6 has two exceptions: a statement of the basis of liability in place of the certificate when no expert is needed, and a statement of intent to provide the certificate within 60 days when the limitation period is about to end.
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.
Why a Qualified Expert Matters
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.
Not every doctor qualifies. Under W. Va. Code § 55-7B-7 the expert must hold a current license, know the standard of care, and have experience or training with similar injuries or conditions.
An expert who also devoted sixty percent of professional time annually to active clinical practice or teaching in the field at the time of the injury is presumed qualified, a presumption the other side may rebut (W. Va. Code § 55-7B-7).
Compensation Limits for a Malpractice Claim
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.
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).
What a claim is worth depends on the injury, the proof and the allocation of fault, not on a statutory ceiling.
Several Liability in West Virginia
In a trial with multiple defendants, the fact finder reports the percentage of fault, if any, attributable to each plaintiff and to each defendant, and considers the fault of all alleged parties, including a person who settled with the plaintiff (W. Va. Code § 55-7B-9).
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).
Knowing who treated the patient, and when, helps an attorney decide whom to name and how fault may be divided.
Wrongful Death After a Medical Error
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).
Every wrongful death action must be commenced within two years after the death of the deceased person (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.
Political Subdivisions in West Virginia
West Virginia treats actions against political subdivisions under their own act, which in W. Va. Code § 29-12A-6 allows two years from when the cause arose or the injury was or reasonably should have been discovered.
The same act prohibits punitive damages against a political subdivision and limits noneconomic loss to $500,000 in favor of any one person, with no limit on economic loss (W. Va. Code § 29-12A-7).
How the political subdivision rules fit with the Medical Professional Liability Act in a given case is something for an attorney to confirm, which is why the first consultation should mention a public hospital or clinic.
Where a Kanawha 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 Charleston, that can be Kanawha County.
The Court and Hospitals Behind a Charleston Claim
Kanawha County is the county the Census Bureau assigns to Charleston. In Charleston, the West Virginia Judiciary lists the clerk for the 8th Judicial Circuit and Kanawha County at Kanawha County Judicial Building, 111 Court Street, Charleston, WV 25301. The West Virginia Office of Emergency Medical Services trauma center list dated December 16, 2022 names CAMC General Hospital in Charleston as a Level I trauma center. CAMC Memorial Hospital in Charleston is listed as a Level IV trauma center by the West Virginia Office of Emergency Medical Services (list dated December 16, 2022). The state trauma center list from the Office of Emergency Medical Services, dated December 16, 2022, shows CAMC Women and Children’s Hospital in Charleston 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.
Next Steps for a Charleston Medical Malpractice Claim
People often start with a simple timeline of the care they received in Charleston, along with discharge papers, test results and any letters from the provider or the insurer.
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?
Possibly: W. Va. Code § 29-12A-6 gives two years against a political subdivision, and an attorney can confirm whether it applies to your claim.
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.
Who signs the certificate of merit in West Virginia?
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).
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.
Does the deadline change for a child injured by medical care?
A child under 10 at the time of the injury has until the 12th birthday or two years from the injury if that is longer (W. Va. Code § 55-7B-4).
Do I have to give notice before filing a malpractice lawsuit in West Virginia?
W. Va. Code § 55-7B-6 requires a notice of claim and a screening certificate of merit to be served on each provider before a lawsuit is filed.
Do I need an expert to bring a malpractice claim in West Virginia?
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.
More Medical Malpractice Pages
Medical care often happens outside your own town; these pages cover other West Virginia communities.
