Instantly Connect For Your South Charleston Medical Malpractice Consultation When Filling Out Form
South Charleston Medical Malpractice Legal Help
If you or someone you love was hurt by a doctor, nurse or hospital in South Charleston, you may be dealing with new medical bills, lost work and worry about what comes next.
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
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.
An unexpected outcome does not prove a mistake. What matters is whether care in South Charleston departed from accepted practice and whether that departure caused the harm.
Common Medical Malpractice Claims
Whatever the kind of mistake, a claim comes back to two questions: did the care depart from accepted practice, and did that cause the injury?
Missed or late 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.
Mistakes during surgery
Problems before, during or after an operation can all lead to claims: planning, the procedure itself, anesthesia and follow up care. The question is whether the care departed from accepted practice and caused the injury.
Medication errors
A prescription or dosing mistake may involve a physician, a pharmacy or a hospital staff member. A claim looks at who made the error and what it caused.
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.
The West Virginia Filing Deadline
Under W. Va. Code § 55-7B-4, the deadline is the later of two years from the date of the injury or death and two years from the date the injury was or reasonably should have been discovered.
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.
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.
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).
Injuries to Minors Under West Virginia Law
For an injury to a minor who was under the age of 10 at the time, the action must be commenced within two years of the injury or before the minor’s 12th birthday, whichever provides the longer period (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.
Steps Required Before a Lawsuit
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.
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.
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).
Why a Qualified Expert Matters
The applicable standard of care and the defendant’s failure to meet it are established by the testimony of one or more knowledgeable, competent expert witnesses if required by the court (W. Va. Code § 55-7B-7).
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).
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).
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 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).
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 lack of a statutory limit says nothing about what a particular claim is worth, which depends on the harm, the evidence and how fault is divided.
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.
Each defendant pays only according to its own percentage of fault, because W. Va. Code § 55-7B-9 calls for several, not joint, liability.
Listing each provider who touched the care, and the dates, is useful before the first consultation.
Wrongful Death After a Medical Error
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).
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).
The same act prohibits punitive damages against a political subdivision and limits noneconomic loss to $500,000 in favor of any one person, with no limit on economic loss (W. Va. Code § 29-12A-7).
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.
Where a Kanawha 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 South Charleston, the county where the claim arose may well be Kanawha County.
Local Courts and Hospitals in South Charleston
South Charleston lies in Kanawha County, according to Census Bureau place and county names. Kanawha County is part of the 8th Judicial Circuit, and the West Virginia Judiciary gives the clerk’s office address as Kanawha County Judicial Building, 111 Court Street, Charleston, WV 25301. The West Virginia Office of Emergency Medical Services trauma center list dated December 16, 2022 names Thomas Memorial Hospital in South Charleston 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 South Charleston Medical Malpractice Claim
People often start with a simple timeline of the care they received in South Charleston, along with discharge papers, test results and any letters from the provider or the insurer.
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 cap on malpractice damages in West Virginia?
The limits are $250,000 and $500,000 per occurrence, indexed to the Consumer Price Index up to one hundred fifty percent, and not available to a defendant without $1,000,000 of insurance per occurrence (W. Va. Code § 55-7B-8).
What is a loss of chance claim?
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).
How long do I have to file a medical malpractice claim in West Virginia?
Generally two years, counted from the injury or from its discovery, whichever is later, with a 10 year outer limit (W. Va. Code § 55-7B-4).
What is a notice of claim in West Virginia?
A notice of claim, served at least 30 days before suit, with a screening certificate of merit (W. Va. Code § 55-7B-6).
Are damages limited against a political subdivision?
Against a political subdivision, punitive damages are not allowed and noneconomic loss is limited to $500,000 for one person (W. Va. Code § 29-12A-7).
Which county would a South Charleston malpractice case be filed in?
W. Va. Code § 56-1-1 allows the county where the cause of action arose or where a defendant resides, so Kanawha County is often one option for care in South Charleston.
What if I did not find out about the mistake until years later?
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).
Where to Look Next
If your matter is in another part of West Virginia, start from the directory or a nearby community page.
