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Medical Malpractice Help in Wheeling
Finding out that care in Wheeling 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.
What Counts as Medical Malpractice in West Virginia
Under W. Va. Code § 55-7B-3, a claim has two necessary elements: a failure to meet the degree of care, skill and learning a reasonable, prudent provider in that profession or class would show in the same or similar circumstances, and 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).
An unexpected outcome does not prove a mistake. What matters is whether care in Wheeling 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?
Missed or late 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 errors
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
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.
Childbirth 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.
Time Limits for a West Virginia Malpractice Claim
A medical professional liability action must be commenced within two years of the date of the injury or death, or within two years of the date the person discovers, or with reasonable diligence should have discovered, the injury, whichever last occurs (W. Va. Code § 55-7B-4).
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).
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.
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.
What Must Happen Before You File
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.
W. Va. Code § 55-7B-6 requires the notice of claim to include a statement of the theories of liability, a list of the providers and facilities notified, and the screening certificate of merit.
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.
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).
The Expert Requirement
W. Va. Code § 55-7B-7 calls for one or more knowledgeable, competent expert witnesses on the standard of care and the failure to meet it, if required by the court.
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.
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
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.
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).
What a claim is worth depends on the injury, the proof and the allocation of fault, not on a statutory ceiling.
When More Than One Provider Is Involved
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).
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.
Records that show every provider involved in the care help an attorney see how fault may be shared.
When a Patient Dies
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).
The wrongful death period is two years from the death (W. Va. Code § 55-7-6), measured from the death itself.
W. Va. Code § 55-7-6 lists what a verdict includes: sorrow, mental anguish and solace, reasonably expected loss of income and services, care and hospital expenses, and funeral expenses.
If the Provider Is a Public Entity
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.
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.
Local Courts and Hospitals in Wheeling
The Census Bureau lists Wheeling in more than one county: Marshall County and Ohio County. Marshall County is part of the 2nd Judicial Circuit, and the West Virginia Judiciary gives the clerk’s office address as Marshall County Courthouse, 600 Seventh Street, Moundsville, WV 26041. The West Virginia Judiciary lists the Circuit Clerk for Ohio County in Wheeling, in the 1st Judicial Circuit, at Ohio County City/County Building, 1500 Chapline Street, Wheeling, WV 26003. Wheeling Hospital in Wheeling is listed as a Level III trauma center 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 Wheeling Malpractice Attorney
People often start with a simple timeline of the care they received in Wheeling, along with discharge papers, test results and any letters from the provider or the insurer.
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
Is there a different time limit for public hospitals in West Virginia?
Possibly: W. Va. Code § 29-12A-6 gives two years against a political subdivision, and an attorney can confirm whether it applies to your claim.
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).
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 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.
How much time do I have to sue for medical malpractice in West Virginia?
Two years from the injury or death, or from discovery, whichever last occurs, and never more than 10 years after the injury (W. Va. Code § 55-7B-4).
Do I have to give notice before filing a malpractice lawsuit in West Virginia?
W. Va. Code § 55-7B-6 requires a notice of claim and a screening certificate of merit to be served on each provider before a lawsuit is filed.
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).
Where to Look Next
If your matter is in another part of West Virginia, start from the directory or a nearby community page.
