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Medical Malpractice Help in Morgantown
Finding out that care in Morgantown 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.
What Counts as Medical Malpractice in West Virginia
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).
A loss of chance claim has an added requirement in West Virginia: proof to a reasonable degree of medical probability of a greater than 25 percent chance that proper care would have improved recovery or survival (W. Va. Code § 55-7B-3).
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.
Kinds of Cases That Need a Malpractice Attorney
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.
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.
Wrong drug or wrong dose
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.
Injuries during pregnancy or delivery
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.
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).
A discovery rule does not reopen the case without limit: no action may be commenced more than 10 years after the medical injury (W. Va. Code § 55-7B-4).
W. Va. Code § 55-7B-4 tolls the periods for a provider’s fraud or collusion in concealing or misrepresenting material facts about the injury.
Claims against a nursing home, an assisted living facility, their related entities or employees, or a distinct part of an acute care hospital providing intermediate or skilled nursing care have a shorter period of one year, with the same discovery wording and the same 10 year limit (W. Va. Code § 55-7B-4).
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).
Because the rule in W. Va. Code § 55-7B-4 turns on the child’s age at the time of the injury, the age on that date should be confirmed early.
Notice of Claim and Certificate of Merit
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.
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.
If the claim rests on a well established theory of liability that does not need expert testimony, the claimant files a statement setting out the basis of liability instead of a certificate. If there is not enough time before the limitation period ends, a statement of intent to provide the certificate is furnished within 60 days (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).
Expert Witnesses and the Standard of Care
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.
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).
Damages in West Virginia Malpractice Claims
Under W. Va. Code § 55-7B-8, the starting limit on noneconomic compensatory damages is $250,000 per occurrence, regardless of the number of plaintiffs, defendants or wrongful death distributees.
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).
That does not set the value of any claim. What can be recovered still depends on the injury, the proof and the share of fault found against each defendant.
Shared Fault and Several Liability
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.
Records that show every provider involved in the care help an attorney see how fault may be shared.
When a Patient Dies
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).
W. Va. Code § 55-7-6 sets two years from the death as the time to commence a wrongful death action.
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).
If the Provider Is a Public Entity
Claims against a political subdivision have a separate time limit: two years after the cause of action arose or the injury was 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.
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 Monongalia County Malpractice Case Is Filed
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 Morgantown, the county where the claim arose may well be Monongalia County.
Local Courts and Hospitals in Morgantown
The Census Bureau places Morgantown in Monongalia County. In Morgantown, the West Virginia Judiciary lists the clerk for the 21st Judicial Circuit and Monongalia County at Monongalia County Justice Center, 75 High Street, Suite 12, Morgantown, WV 26505. WVU Hospitals in Morgantown is listed as a Level I 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 Mon Health Medical Center in Morgantown 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.
Speak With a Morgantown Malpractice Attorney
If you believe medical care in Morgantown 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.
Submit the form on this page and we will work to connect you with an attorney in our network who handles medical malpractice claims in West Virginia. Because filing deadlines are measured in years, not decades, it helps to ask early.
Frequently Asked Questions
Is there a different time limit for public hospitals in West Virginia?
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.
What if I did not find out about the mistake until years later?
A discovery rule applies, with a 10 year limit from the injury (W. Va. Code § 55-7B-4).
Who signs the certificate of merit in West Virginia?
A statement executed under oath by a qualified health care provider setting out the expert’s familiarity with the standard of care, qualifications, how it was breached, how the breach caused the injury, and the records reviewed (W. Va. Code § 55-7B-6).
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 if the patient was a minor when the injury happened?
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 must happen before I can sue a provider 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).
Who can serve as an expert in a West Virginia malpractice case?
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.
Nearby Communities We Serve
If the care happened elsewhere in West Virginia, these pages may be a better starting point.
