Instantly Connect For Your Huntington Medical Malpractice Consultation When Filling Out Form
Your Huntington Medical Malpractice Attorney
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.
How West Virginia Law Defines Medical Malpractice
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).
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
The examples that follow are not a complete list, but they show how a claim connects what the provider did or failed to do to the harm.
Misdiagnosis and delayed diagnosis
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
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.
Errors with medications
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.
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).
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.
Care in a nursing home or assisted living facility is on a one year clock under W. Va. Code § 55-7B-4, not two, with the same 10 year outer limit.
Children and the Filing Deadline
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.
Pre Suit Steps in West Virginia
Under W. Va. Code § 55-7B-6, a notice of claim goes by certified mail to every provider who will be a defendant, and it has to be served at least 30 days before filing.
W. Va. Code § 55-7B-6 requires the notice of claim to include a statement of the theories of liability, a list of the providers and facilities notified, and the screening certificate of merit.
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.
Expert Witnesses and the Standard of Care
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.
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.
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).
The Limit on Noneconomic Damages
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 limit rises to $500,000 for each occurrence where the noneconomic loss was for wrongful death, for permanent and substantial physical deformity, loss of use of a limb or loss of a bodily organ system, or for a permanent physical or mental functional injury that permanently prevents the person from caring for himself or herself independently (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
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).
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
Under W. Va. Code § 55-7-6, the personal representative, not the family members individually, brings the wrongful death action.
The wrongful death period is two years from the death (W. Va. Code § 55-7-6), measured from the death itself.
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.
Claims Against Government Health Care Providers
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.
The damages rules for a political subdivision in W. Va. Code § 29-12A-7 include no punitive damages, a $500,000 noneconomic limit for any one person, and no limit on economic loss.
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.
The Court and Hospitals Behind a Huntington Claim
The Census Bureau lists Huntington in more than one county: Cabell County and Wayne County. Cabell County is part of the 6th Judicial Circuit, and the West Virginia Judiciary gives the clerk’s office address as Cabell County Courthouse, 750 Fifth Avenue, Huntington, WV 25701. Wayne County is part of the 10th Judicial Circuit, and the West Virginia Judiciary gives the clerk’s office address as Wayne County Courthouse, 700 Hendricks Street, Wayne, WV 25570. Cabell Huntington Hospital in Huntington is listed as a Level II 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 St. Mary’s Medical Center in Huntington as a Level II 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 Huntington Medical Malpractice Claim
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.
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
How long do I have to file a medical malpractice claim in West Virginia?
Two years from the injury or death, or from discovery, whichever last occurs, and never more than 10 years after the injury (W. Va. Code § 55-7B-4).
What is a notice of claim in West Virginia?
Yes. A notice of claim has to be served by certified mail on each provider at least 30 days before filing (W. Va. Code § 55-7B-6).
Is there a cap on malpractice damages in West Virginia?
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.
What if the delay in treatment reduced my chance of recovery?
Yes, under W. Va. Code § 55-7B-3, if the lost chance was greater than 25 percent.
Is there a final cutoff for a malpractice claim in West Virginia?
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 qualified health care provider signs it under oath, and a separate certificate is needed for each provider sued (W. Va. Code § 55-7B-6).
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).
More Medical Malpractice Pages
If the care happened elsewhere in West Virginia, these pages may be a better starting point.
