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A medical mistake leaves questions that are hard to put down: what went wrong, who was responsible, and whether West Virginia law gives you a way to hold them accountable.
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.
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).
An unexpected outcome does not prove a mistake. What matters is whether care in Waverly departed from accepted practice and whether that departure caused the harm.
Types of Medical Malpractice Cases
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?
Misdiagnosis and delayed diagnosis
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
Operating room claims examine whether the surgeon and the team followed accepted practice for the procedure, and whether a departure from it, rather than a known risk, caused the harm.
Errors with medications
Medication claims often start with a mistake in ordering, dispensing or giving a drug. The question is where in the process the care departed from accepted practice and whether the error caused the harm.
Injuries during pregnancy or delivery
When a mother or baby is harmed before, during or soon after delivery, a claim asks whether the care departed from accepted practice and whether that caused the injury. These cases usually depend heavily on the medical records.
Time Limits for a West Virginia Malpractice Claim
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.
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.
Care in a nursing home or assisted living facility is on a one year clock under W. Va. Code § 55-7B-4, not two, with the same 10 year outer limit.
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
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).
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.
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.
There is a rebuttable presumption of competence when the expert spent sixty percent of professional time in clinical practice or teaching in the field at the time of the medical injury (W. Va. Code § 55-7B-7).
The Limit on Noneconomic Damages
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.
The absence of a limit does not mean any amount is guaranteed; the outcome of a claim depends on its facts and the evidence.
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.
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.
Wrongful Death After a Medical Error
W. Va. Code § 55-7-6 has the personal representative bring the action and recover the amount for distribution to those entitled.
The wrongful death period is two years from the death (W. Va. Code § 55-7-6), measured from the death itself.
The jury may award damages that seem fair and just, including sorrow, mental anguish and solace, which may include society, companionship, comfort, guidance, kindly offices and advice of the decedent, compensation for reasonably expected loss of income and of services, protection, care and assistance, and care, treatment, hospital and funeral expenses (W. Va. Code § 55-7-6).
Political Subdivisions in West Virginia
If the provider is a political subdivision, W. Va. Code § 29-12A-6 sets two years after the cause of action arose or was discovered, and a shorter period may apply under other provisions of the code.
Under W. Va. Code § 29-12A-7, punitive damages cannot be awarded against a political subdivision, noneconomic loss is capped at $500,000 for any one person, and economic loss is not limited.
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.
Venue for a Claim From Waverly
Under W. Va. Code § 56-1-1, the circuit court of a county where a defendant resides or where the cause of action arose is a proper place to file; for treatment in Waverly, that can be Wood County.
Local Courts and Hospitals in Waverly
Waverly lies in Wood County, according to Census Bureau place and county names. The West Virginia Judiciary lists the Circuit Clerk for Wood County in Parkersburg, in the 4th Judicial Circuit, at Wood County Judicial Building, 2 Government Square, Room 131, Parkersburg, WV 26101-5353. The West Virginia Office of Emergency Medical Services trauma center list dated December 16, 2022 also names Camden Clark Medical Center in Parkersburg, in Wood County, as an III. 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 Waverly Malpractice Attorney
If you believe medical care in Waverly 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.
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
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).
Which county would a Waverly 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 Wood County is often one option for care in Waverly.
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.
Do I need an expert to bring a malpractice claim in West Virginia?
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.
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.
Does West Virginia have a discovery rule for malpractice?
A discovery rule applies, with a 10 year limit from the injury (W. Va. Code § 55-7B-4).
What is a notice of claim 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).
More Medical Malpractice Pages
These pages cover other communities in West Virginia, in case the care you received was somewhere else.
