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Medical Malpractice Help in Martinsburg
Finding out that care in Martinsburg 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.
When a Provider's Care Becomes a Malpractice Claim
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).
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.
Not every complication is malpractice. A claim needs both a failure in the care and proof that the failure caused the injury.
Kinds of Cases That Need a Malpractice Attorney
Malpractice claims come in many forms. The ones below are common, and each depends on linking a failure in care to the injury.
Missed or late diagnosis
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.
Surgical mistakes
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
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
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.
The West Virginia Filing Deadline
The general period in W. Va. Code § 55-7B-4 is two years, counted from the injury or death or from discovery of the injury, whichever last occurs.
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)).
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.
Children and the Filing Deadline
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.
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.
Under W. Va. Code § 55-7B-6, the certificate sets out the expert’s familiarity with the standard of care, qualifications, the opinion on the breach and on causation, and the medical 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 (120 days for a nursing home, assisted living facility or a related entity, or for the nursing care part of an acute care hospital) when the limitation period is about to end.
After the notice, W. Va. Code § 55-7B-6 lets the provider respond within 30 days and demand mediation before the lawsuit, with 45 days to complete it.
Expert Testimony in a West Virginia Malpractice Case
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.
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).
The Limit on Noneconomic Damages
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).
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.
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.
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
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.
When a hospital and a physician are both named, W. Va. Code § 55-7B-9 makes each responsible for its own percentage, not for the whole.
Because fault can be assigned to providers who are not defendants, identifying every provider involved in the care early matters.
When a Patient Dies
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 Public Hospitals and Government Providers
A separate act sets rules for actions against many local government bodies, but it expressly leaves out hospitals of a political subdivision and their employees (W. Va. Code § 29-12A-3). A claim against a public hospital, or against a state run provider, can carry rules of its own, so say early who ran the hospital or clinic.
The same act limits damages against many local government bodies, but it leaves out hospitals of a political subdivision and their employees (W. Va. Code § 29-12A-3), so whether any limit applies depends on who ran the hospital or clinic.
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.
Where a Berkeley County Malpractice Case Is Filed
Where to file depends on the facts. W. Va. Code § 56-1-1 allows the county where a defendant resides or the cause of action arose, and for a Martinsburg claim Berkeley County is often one of them.
Courts and Hospitals Near Martinsburg
Martinsburg lies in Berkeley County, according to Census Bureau place and county names. The West Virginia Judiciary lists the Circuit Clerk for Berkeley County in Martinsburg, in the 27th Judicial Circuit, at Berkeley County Judicial Center, 380 West South Street, Suite 2200, Martinsburg, WV 25401. The state trauma center list from the Office of Emergency Medical Services, dated December 16, 2022, shows Berkeley Medical Center in Martinsburg as a Level III trauma center. Whichever hospital treated you, request your full records and an itemized bill early, and keep a list of the providers you saw.
Next Steps for a Martinsburg Medical Malpractice Claim
If you believe medical care in Martinsburg 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.
Fill out the form above and we will work to put you in touch with an attorney in our network who handles malpractice claims in West Virginia. Starting sooner gives you more room to gather records.
Frequently Asked Questions
What is a screening certificate of merit?
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).
Can I recover from every provider who contributed to the harm?
Each defendant is responsible for its own percentage of fault (W. Va. Code § 55-7B-9), so the right providers need to be named.
What if the hospital or provider is a government entity?
A separate act limits damages against many local government bodies, but it expressly leaves out hospitals of a political subdivision and their employees (W. Va. Code § 29-12A-3), so whether any limit applies depends on who ran the hospital or clinic.
Does West Virginia have a discovery rule for malpractice?
W. Va. Code § 55-7B-4 allows two years from discovery and stops all claims 10 years after the 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)).
Is there a wrongful death claim for malpractice in West Virginia?
The personal representative sues, and damages may include solace, lost income and services, and expenses (W. Va. Code § 55-7-6).
Can I claim for a lost chance of survival in West Virginia?
A claim that a failure to follow the standard of care deprived the patient of a chance of recovery; the plaintiff must prove, to a reasonable degree of medical probability, a greater than 25 percent chance of an improved recovery or survival (W. Va. Code § 55-7B-3).
In what county would a Martinsburg claim be brought?
In the circuit court of a county where a defendant resides or the cause of action arose (W. Va. Code § 56-1-1); for care in Martinsburg that can be Berkeley County.
More Medical Malpractice Pages
If the care happened elsewhere in West Virginia, these pages may be a better starting point.
