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Medical Malpractice Help in Weston
Finding out that care in Weston 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.
How West Virginia Law Defines Medical Malpractice
To succeed in West Virginia, a patient has to show both a departure from the care, skill and learning expected of a reasonable, prudent provider in the same profession or class and that the departure was a proximate cause of the harm (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).
Not every complication is malpractice. A claim needs both a failure in the care and proof that the failure caused the injury.
Situations That Can Lead to a Malpractice Claim
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.
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.
Errors with medications
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
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.
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).
The periods are tolled for any time during which the provider or its representative has committed fraud or collusion by concealing or misrepresenting material facts about the injury (W. Va. Code § 55-7B-4).
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
Under W. Va. Code § 55-7B-4, an action for an injury to a minor under 10 must be commenced within two years of the injury or before the minor’s 12th birthday, whichever gives more time.
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.
Pre Suit Steps in West Virginia
No one may file a medical professional liability action without complying with W. Va. Code § 55-7B-6. At least 30 days before filing, the claimant must serve a notice of claim by certified mail on each provider to be joined in the lawsuit.
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.
W. Va. Code § 55-7B-6 has two exceptions: a statement of the basis of liability in place of the certificate when no expert is needed, and a statement of intent to provide the certificate within 60 days when the limitation period is about to end.
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
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).
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
A malpractice plaintiff in West Virginia faces a $250,000 limit on noneconomic damages for each occurrence, with the exceptions in the next paragraph (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).
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.
What a claim is worth depends on the injury, the proof and the allocation of fault, not on a statutory ceiling.
Several Liability in West Virginia
In a trial with multiple defendants, the fact finder reports the percentage of fault, if any, attributable to each plaintiff and to each defendant, and considers the fault of all alleged parties, including a person who settled with the plaintiff (W. Va. Code § 55-7B-9).
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).
Because fault can be assigned to providers who are not defendants, identifying every provider involved in the care early matters.
A Death Caused by Medical Care
W. Va. Code § 55-7-6 has the personal representative bring the action and recover the amount for distribution to those entitled.
W. Va. Code § 55-7-6 sets two years from the death as the time to commence a wrongful death action.
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
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).
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 Lewis 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 Weston, the county where the claim arose may well be Lewis County.
Local Courts and Hospitals in Weston
Weston lies in Lewis County, according to Census Bureau place and county names. In Weston, the West Virginia Judiciary lists the clerk for the 18th Judicial Circuit and Lewis County at Lewis County Judicial Annex, 117 Court Avenue, Weston, WV 26452. The West Virginia Office of Emergency Medical Services trauma center list dated December 16, 2022 names Stonewall Jackson Memorial Hospital in Weston 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.
Next Steps for a Weston Medical Malpractice Claim
People often start with a simple timeline of the care they received in Weston, 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
What if the delay in treatment reduced my chance of recovery?
Yes, under W. Va. Code § 55-7B-3, if the lost chance was greater than 25 percent.
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 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).
Does West Virginia limit what I can recover for medical malpractice?
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).
Is there a final cutoff for a malpractice claim in West Virginia?
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).
Does the deadline change for a child injured by medical care?
For a child under 10 when injured, two years from the injury or until the 12th birthday, whichever is longer (W. Va. Code § 55-7B-4).
Is a certificate of merit required 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).
Nearby Communities We Serve
If the care happened elsewhere in West Virginia, these pages may be a better starting point.
