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Your Point Pleasant Medical Malpractice Attorney
Finding out that care in Point Pleasant 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
The elements come from W. Va. Code § 55-7B-3: the provider failed to exercise the degree of care, skill and learning expected of a reasonable, prudent provider of the same kind acting in similar circumstances, and that failure was a proximate cause of the injury or death.
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.
Medical care does not always succeed, and an unhappy outcome is not by itself malpractice; the claim has to connect a failure in care to the injury.
Types of Medical Malpractice Cases
Malpractice claims come in many forms. The ones below are common, and each depends on linking a failure in care to the injury.
Diagnostic errors
A late or missed diagnosis can allow an illness to progress. These claims look at what the provider did, what was reasonably available to do, and what an earlier diagnosis would have changed.
Mistakes during surgery
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 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.
Birth 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
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.
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). 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)).
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.
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.
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.
Pre Suit Steps in West Virginia
The first step is a notice of claim: W. Va. Code § 55-7B-6 requires service by certified mail on each provider the claimant will join, at least 30 days before filing suit.
A screening certificate of merit has to accompany the notice (W. Va. Code § 55-7B-6): it is signed under oath by a qualified health care provider and a separate one is needed for each provider against whom a claim is made.
The certificate has to state the basis of the expert’s familiarity with the standard of care, the expert’s qualifications, how the standard of care was breached, how the breach resulted in injury or death, and a list of the records reviewed (W. Va. Code § 55-7B-6).
The certificate can be replaced by a statement when the claim is based on a well established theory of liability, and it can follow within 60 days of a statement of intent when time is short (120 days for a nursing home, assisted living facility or a related entity, or for the nursing care part of an acute care hospital) (W. Va. Code § 55-7B-6).
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
West Virginia law has the standard of care proved by expert testimony when the court requires it (W. Va. Code § 55-7B-7), which makes finding the right expert an early task.
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.
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.
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).
What a claim is worth depends on the injury, the proof and the allocation of fault, not on a statutory ceiling.
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.
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.
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 Government Health Care Providers
A separate act sets two years against a political subdivision from when the cause arose or the injury was or should have been discovered, with a longer period for a child under ten and tolling for concealment or fraud; the act does not cover hospitals of a political subdivision (W. Va. Code § 29-12A-3 and W. Va. Code § 29-12A-6).
Against a political subdivision, punitive damages are prohibited, economic loss is not limited, and noneconomic loss may not exceed $500,000 in favor of any one person, and a defendant with 25 percent or more of the negligence can be jointly and severally liable; the act does not cover hospitals of a political subdivision (W. Va. Code § 29-12A-3 and W. Va. Code § 29-12A-7).
Whether these rules apply to a particular malpractice claim, and what other steps are needed against a state or county provider, depends on who employed the provider, so it is worth telling the attorney at the start whether the hospital or clinic was public.
Courts for a Point Pleasant Claim
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 Point Pleasant claim Mason County is often one of them.
Local Courts and Hospitals in Point Pleasant
Point Pleasant lies in Mason County, according to Census Bureau place and county names. Mason County is part of the 5th Judicial Circuit, and the West Virginia Judiciary gives the clerk’s office address as Mason County Courthouse, 200 Sixth Street, Point Pleasant, WV 25550. The state trauma center list from the Office of Emergency Medical Services, dated December 16, 2022, shows Pleasant Valley Hospital in Point Pleasant 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.
How to Begin With a Point Pleasant Malpractice Attorney
Before you contact anyone, it helps to put the events in order: the dates of treatment, the providers you saw, what you were told and what happened afterward.
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
Who signs the certificate of merit in West Virginia?
A health care provider who is qualified as an expert under the West Virginia rules of evidence signs the screening certificate of merit under oath, and it goes with the notice of claim. If the claim rests on a well established theory of liability that needs no expert testimony, a statement of the basis of liability is filed instead (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.
Are damages limited against a political subdivision?
Yes, for most local government bodies: punitive damages are prohibited, economic loss is not limited and noneconomic loss may not exceed $500,000 for any one person (W. Va. Code § 29-12A-7), but the act does not cover hospitals of a political subdivision (W. Va. Code § 29-12A-3).
Does West Virginia have a discovery rule for malpractice?
Yes. The two years can run from discovery, but no action may be commenced more than 10 years after the date of the medical injury (W. Va. Code § 55-7B-4). 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)).
How long does a family have after a death caused by malpractice?
Two years after the death (W. Va. Code § 55-7-6), and the personal representative brings the action.
Can I claim for a lost chance of survival in West Virginia?
Yes, under W. Va. Code § 55-7B-3, if the lost chance was greater than 25 percent.
In what county would a Point Pleasant claim be brought?
W. Va. Code § 56-1-1 allows the county where the cause of action arose or where a defendant resides, so Mason County is often one option for care in Point Pleasant.
More Medical Malpractice Pages
If the care happened elsewhere in West Virginia, these pages may be a better starting point.
