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Medical Malpractice Help in St. Albans
When medical care in St. Albans goes wrong, the harm is physical, financial and personal at once, and it is hard to know whether what happened is a legal claim.
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.
If a claim is brought on a loss of chance theory, the plaintiff must also prove, to a reasonable degree of medical probability, that following the accepted standard of care would have resulted in a greater than 25 percent chance of an improved recovery or of survival (W. Va. Code § 55-7B-3).
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.
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.
Diagnostic errors
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.
Prescription and dosing mistakes
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
Claims about harm at birth look at the care given and ask whether a departure from accepted practice caused the injury, which is why complete records matter.
How Long You Have to File in West Virginia
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.
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).
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
West Virginia gives a child injured before the age of 10 until the 12th birthday or two years from the injury, whichever is longer (W. Va. Code § 55-7B-4).
A parent considering a claim for an injured child should note the age at injury, since W. Va. Code § 55-7B-4 sets its minor rule for children who were under 10 at that time.
What Must Happen Before You File
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.
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.
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 (W. Va. Code § 55-7B-6).
A provider who receives the notice may respond in writing within 30 days, and is entitled to prelitigation mediation on written demand, which has to be concluded within 45 days of the demand (W. Va. Code § 55-7B-6).
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.
What West Virginia Law Says About Damage Limits
West Virginia limits noneconomic damages in a malpractice case to $250,000 for each occurrence, however many plaintiffs and defendants there are (W. Va. Code § 55-7B-8).
Three kinds of loss qualify for the higher $500,000 limit under W. Va. Code § 55-7B-8: wrongful death, permanent and substantial deformity or loss of a limb or organ system, and a permanent functional injury that prevents independent self care.
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.
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.
When More Than One Provider Is Involved
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.
W. Va. Code § 55-7B-9 directs judgment of several but not joint liability, so a defendant is liable in proportion to the fault assigned to it.
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).
W. Va. Code § 55-7-6 sets two years from the death as the time to commence a wrongful death action.
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
West Virginia treats actions against political subdivisions under their own act, which in W. Va. Code § 29-12A-6 allows two years from when the cause arose or the injury was or reasonably should have been discovered.
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.
Courts for a St. Albans 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 St. Albans claim Kanawha County is often one of them.
Courts and Hospitals Near St. Albans
St. Albans lies in Kanawha County, according to Census Bureau place and county names. The West Virginia Judiciary lists the Circuit Clerk for Kanawha County in Charleston, in the 8th Judicial Circuit, at 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 also names CAMC General Hospital in Charleston, in Kanawha County, as an I. In Kanawha County, CAMC Memorial Hospital in Charleston is listed as an IV by the West Virginia Office of Emergency Medical Services (list dated December 16, 2022). Whichever hospital treated you, request your full records and an itemized bill early, and keep a list of the providers you saw.
Speak With a St. Albans 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.
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
What if more than one provider was at fault?
The fact finder assigns a percentage of fault to each defendant, and judgment is several, not joint, according to those percentages (W. Va. Code § 55-7B-9).
Are damages limited against a political subdivision?
A separate act applies to political subdivisions: two years after the cause of action arose or was discovered (W. Va. Code § 29-12A-6), no punitive damages and a $500,000 limit on noneconomic loss for any one person (W. Va. Code § 29-12A-7).
Is there a final cutoff for a malpractice claim in West Virginia?
W. Va. Code § 55-7B-4 allows two years from discovery and stops all claims 10 years after the injury.
Is a certificate of merit required in West Virginia?
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).
Which county would a St. Albans 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 St. Albans.
How much time do I have to sue for medical malpractice in West Virginia?
Two years, with a discovery rule and a 10 year ceiling (W. Va. Code § 55-7B-4); nursing home claims have one year.
Is the deadline different if the patient was a child?
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.
Other Pages That May Help
These pages cover other communities in West Virginia, in case the care you received was somewhere else.
