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Your Hurricane Medical Malpractice Attorney
Finding out that care in Hurricane fell short can be painful, and sorting out whether it amounts to medical malpractice is a separate question from how you feel about it.
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
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.
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
Malpractice claims come in many forms. The ones below are common, and each depends on linking a failure in care to the injury.
Failure to diagnose
When a provider fails to order the right test, misreads a result or dismisses symptoms, the harm may come from lost time. A claim asks whether an earlier diagnosis was reasonably available and what difference it would have made to treatment.
Mistakes during surgery
Operating room claims examine whether the surgeon and the team followed accepted practice for the procedure, and whether a departure from it, rather than a known risk, 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.
Childbirth injuries
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.
How Long You Have to File in West Virginia
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.
Concealment matters: under W. Va. Code § 55-7B-4, fraud or collusion by the provider in hiding or misstating material facts about the injury tolls the filing periods.
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 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.
Notice of Claim and Certificate of Merit
No one may file a medical professional liability action without complying with W. Va. Code § 55-7B-6. At least 30 days before filing, the claimant must serve a notice of claim by certified mail on each provider to be joined in the lawsuit.
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.
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 (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).
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.
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.
What West Virginia Law Says About Damage Limits
Compensatory damages for noneconomic loss may not exceed $250,000 for each occurrence, regardless of the number of plaintiffs or defendants or, in a wrongful death case, the number of distributees (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.
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).
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.
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.
A Death Caused by Medical Care
Under W. Va. Code § 55-7-6, the personal representative, not the family members individually, brings the wrongful death action.
Every wrongful death action must be commenced within two years after the death of the deceased person (W. Va. Code § 55-7-6).
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.
Political Subdivisions in West Virginia
A separate act has its own rules for actions against a political subdivision: the action must be brought within two years after the cause of action arose or the injury was or should have been discovered, whichever last occurs (W. Va. Code § 29-12A-6).
W. Va. Code § 29-12A-7 bars punitive damages against a political subdivision and sets a $500,000 limit on noneconomic loss for one person, leaving economic loss unlimited.
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.
Choosing the County to File In
W. Va. Code § 56-1-1 gives more than one place to file, including the county where the cause of action arose. Care in Hurricane points to Putnam County as one option, and a corporate defendant may also be sued where its principal office is or where it does business.
The Court and Hospitals Behind a Hurricane Claim
Hurricane lies in Putnam County, according to Census Bureau place and county names. In Winfield, the West Virginia Judiciary lists the clerk for the 7th Judicial Circuit and Putnam County at Putnam County Judicial Building, 12093 Winfield Road, Winfield, WV 25213. The state trauma center list from the Office of Emergency Medical Services, dated December 16, 2022, shows CAMC Teays Valley in Hurricane 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.
Next Steps for a Hurricane 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
Is the deadline different if the patient was a child?
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).
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).
How long does a family have after a death caused by malpractice?
The personal representative sues, and damages may include solace, lost income and services, and expenses (W. Va. Code § 55-7-6).
Where is a malpractice lawsuit from Hurricane 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 Hurricane may be Putnam County.
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.
How is fault divided among several providers?
Under W. Va. Code § 55-7B-9, liability is several, in proportion to fault, and the fault of settled parties is considered too.
What is a loss of chance claim?
Yes, under W. Va. Code § 55-7B-3, if the lost chance was greater than 25 percent.
More Medical Malpractice Pages
Medical care often happens outside your own town; these pages cover other West Virginia communities.
