West Virginia Medical Malpractice Laws

In 2017, a motorcyclist got into an accident and was treated at a Charleston hospital for his injuries. Prior to the first surgery, the patient still maintained the ability to use his arms and legs. This ability was lost after the first surgical operation. By the time the second one was completed, the patient had developed paraplegia. 

The neurosurgeon in charge did not order an MRI before performing the procedure on the patient’s spine. The medical practitioner also failed to use a monitoring device during surgery. These factors led to the patient suffering permanent damage. He is bound to be in a wheelchair for the rest of his life. 

In a trial that concluded in 2022, the jury determined the healthcare provider liable for medical malpractice. The patient, in turn, received an award of $17 million. 

This significant award may suggest that medical malpractice cases in West Virginia lead to large payouts; however, the reality is different. From January 2012 to June 2022, the Mountain State saw $212.52 million in payouts. This number is lower than many states, including neighboring Maryland, which witnessed over $1 billion in the same period. 

Knowing how medical malpractice works in West Virginia is crucial to those aiming to recover total damages from liable healthcare providers. This article seeks to help plaintiffs understand whether their claim meets the definition of malpractice. Additionally, Mountaineers can find information about filing deadlines and fees on this page. 

What Qualifies as Medical Malpractice in West Virginia?

When patients die or get injured because of healthcare treatments or the failure to provide such, that is known as medical malpractice or medical injury in West Virginia. Various acts are considered malpractice, including: 

• Fraudulent concealment. A healthcare provider can decide not to provide information about the injury for the plaintiff to miss the lawsuit filing deadline. 

• Misdiagnosis. This occurs when medical practitioners diagnose patients with conditions they do not suffer from.

• Surgical mistake. An example of this is operating on the wrong part of the body. 

• Medication error. This refers to mistakes healthcare providers make involving factors like prescription, administration, monitoring, and education of various products. 

West Virginia law does not differentiate between healthcare-related malpractice and negligence. However, the two are not synonymous. 

• Medical malpractice pertains to the act wherein healthcare providers fail to meet the certain level of care expected by their patients. One example would be performing unnecessary surgery. 

• Medical negligence refers to decisions that practitioners make that fall short of the degree of care expected from medical professionals. Inadequately following up on treatments is one such form of negligence. 

Note that not all negligent acts are considered malpractice. As such, patients may not be eligible for damages if their injuries are not directly caused by the healthcare provider. 

Who Can You Sue for Medical Malpractice in West Virginia?

There are multiple professionals and organizations that fall under the definition of “health care provider” in West Virginia law. These can become defendants in a medical malpractice claim. Some examples of providers include:

• Physicians. 

• Osteopathic physicians. 

• Physician assistants. 

• Advanced practice registered nurses. 

• Hospitals.

• Dentists.

• Licensed or registered practical nurses. 

• Optometrists. 

• Podiatrists. 

• Chiropractors. 

• Physical therapists. 

• Speech-language pathologists. 

• Audiologists. 

• Occupational therapists. 

• Psychologists. 

• Pharmacists. 

• Technicians.

The definition also encompasses agencies that deliver emergency medical services. Additionally, employees or agents of healthcare providers may be held responsible for malpractice incidents. 

Another thing to note is how liable these providers are in cases involving injuries caused by prescription drugs. There are two ways medical practitioners can be held accountable:

• If the provider knew the product was unsafe for its intended purpose. 

• If the provider did not adhere to changes involving the product’s dosage or administration, as announced by its manufacturer. 

Knowing how healthcare providers, particularly those who prescribe drugs, can be held liable is crucial in West Virginia. The state had the highest rate in the country of opioid drug overdoses. 

Exemptions

Various organizations are generally not held responsible for medical malpractice. 

For instance, licensed behavioral health facilities that provide short-term detoxification services are shielded from liability. This protection is extended if the facility acted in good faith and expected no payment from the patient. 

Another example is retiring or retired physicians who wish to volunteer their expertise for impoverished patients. To do so, they must obtain a special volunteer medical license. They are immune from liability unless they act with willful misconduct or gross negligence. 

The clinic that the physician works for needs to have at least $1 million of liability insurance per instance of malpractice. Additionally, the patient and the physician must have a written agreement showing that the latter provides non-compensated services. 

There is also the concept of sovereign immunity, which refers to the liability protection granted to government agencies. However, its employees may face lawsuits if they perform in bad faith. Instances of medical malpractice that are considered malicious or reckless are also grounds for a lawsuit. 

Some agencies, under state law, possess sovereign immunity. These include the West Virginia Health System and the West Virginia University Hospital. 

West Virginia law also does not permit lawsuits against individuals who assist those experiencing an overdose. This “Good Samaritan” rule allows these persons to avoid certain criminal liabilities when they provide assistance. Criminal liabilities can arise for reasons like public intoxication or possession of controlled substances. The rule does not shield these persons from civil lawsuits or crimes against minors.  

Medical Malpractice Liability Insurance Requirements

Although not required, liability insurance may be necessary for certain hospitals and insurance companies.

These policies are essential, though, given the data on medical malpractice over the past few years. According to the American Medical Association, more than 30% of physicians have faced lawsuits at some point in their careers. The organization also observed that male practitioners are at higher risk for claims.

Given this fact, male-dominated specialties in West Virginia may have an increased risk of medical malpractice lawsuits. Some of these fields include podiatry and dentistry.

What Is the Statute of Limitations in West Virginia for Medical Malpractice Cases?

Under West Virginia law, the deadline for filing medical malpractice claims is two years. It begins from the date when the injury was or ought to have been discovered. The same two-year timeframe applies in wrongful death cases. Additionally, plaintiffs in cases involving government agencies have two years to file a claim. 

There are, however, some situations where this deadline does not precisely apply:

• If a child is under 10, their representative can file a claim within two years from the injury date or the child’s 12th birthday, whichever is later. 

• If a patient was injured or died because of the actions of assisted living facilities, nursing homes, and skilled nursing care or intermediate care facilities under hospitals, they or their representative may file a claim within a year from the date the injury was or should have been discovered.

Keep in mind that there is a concept known as the statute of repose. This refers to the deadline that prohibits plaintiffs from suing defendants. In West Virginia, medical malpractice victims cannot file lawsuits against liable parties after 10 years from the date of injury. This rule applies even if the victim discovered the injury after a decade. 

What Do You Need to Prove in a West Virginia Medical Malpractice Case?

Plaintiffs seeking to prove that they are victims of medical malpractice must demonstrate four key elements. These are: 

• Duty of care: Plaintiffs must show they are owed a certain degree of care from their healthcare provider.  

• Breach of duty: Plaintiffs must demonstrate that the healthcare provider fell short in meeting the standard of care expected by their patient. 

• Causation: Plaintiffs must prove that the healthcare provider’s breach led to their injuries. 

• Damages: Finally, plaintiffs must exhibit that they suffered damages because of the breach. These damages may consist of lost wages and medical expenses, as well as pain and suffering. 

Plaintiffs may also use the loss of chance theory to recover damages for their injuries. In other words, healthcare providers can face lawsuits for actions that decrease their patients’ chances of survival. Under West Virginia law, plaintiffs are required to show that, had the standard of care been implemented by the healthcare provider, the patient would have an over 25% chance of survival. 

Other things to remember are these requirements: 

• Pre-suit notice: This document needs to be mailed to the defendants named in a medical malpractice lawsuit. The deadline for sending the notice is 30 days from the date the claim is filed. This document must show three things: 

  • An explanation of the legal justifications for the lawsuit. 

  • A list of all healthcare providers to whom the notice is addressed. 

  • A screening certificate of merit. 

• Screening certificate of merit: This document is a written statement by a healthcare provider who is an expert under West Virginia law. They state, through the document, five points: 

  • Their familiarity with the applicable degree of care involved in the case. 

  • Their qualifications. 

  • Their opinion on how the degree of care was not met. 

  • Their opinion on how this violation of the duty of care led to injury or death. 

  • The list of all relevant medical records and other related information. 

State law requires a separate certificate for each defendant. 

• Expert witness: West Virginia requires plaintiffs to present testimonies from expert witnesses to prove that the defendants did not meet the expected standard of care. Testimonies are admissible as evidence if: 

  • This opinion is actually supported by the witness. 

  • This opinion can be submitted as testimony based on sound medical certainty. 

  • The expert understands their field and the applicable standard of care involved in the case. 

  • The expert maintains a medical license from an applicable agency in any state. This license must not have been suspended or revoked in the past year.

A healthcare provider may express remorse for their actions. In some states, this expression can be seen as evidence of wrongdoing. In West Virginia, though, apology statements are not admissible as evidence. 

How Much Can You Sue for Medical Malpractice in West Virginia?

There are multiple factors that influence the amount of damages plaintiffs receive. One example is the specifics of a lawsuit. The value of the compensation that the plaintiff is seeking is also a factor. 

Medical malpractice cases can be complex. As such, one may consult with an experienced attorney. Their experience can help plaintiffs determine how damages are recovered. 

Types of Damages

Plaintiffs can recover two types of damages. These are compensatory and punitive. 

Compensatory damages are awarded to help medical malpractice victims manage economic and non-economic losses. These include costs that the plaintiff suffered or will likely incur. Some examples are medical expenses and lost earnings. Loss of enjoyment of life and mental distress also fall under compensatory damages. 

Punitive damages are awarded to plaintiffs by courts aiming to punish the defendants. These are rarely granted, though, since the victim must prove, through clear and convincing evidence, that the defendant’s actions constitute outrageous, conscious, or reckless indifference to the health of others. Additionally, actual malice is also grounds for punitive damages. 

Caps on Damages

There are caps on the medical malpractice damages one may obtain under West Virginia law. Plaintiffs do not face limits on compensation for economic losses. Non-economic damages, however, are capped at $250,000. This figure increases to $500,000 in cases involving wrongful death or catastrophic injury. Note that since 2004, the limit on compensatory damages has been changed to account for inflation. 

Punitive damages are likewise capped. It must be $500,000 or four times the compensatory damages, whichever is higher. In cases involving government-run hospitals, punitive damages are not recoverable.

West Virginia was ranked in one study as the state most stressed about medical bills. Given this, one must know the limits imposed on obtainable damages. 

Negligence System

Medical malpractice victims deserve full compensation for their injuries. In some situations, they share responsibility with the liable healthcare provider. Regardless, West Virginia courts permit victims to obtain damages. These are reduced to account for their fault. 

To illustrate how damages decrease, suppose a patient incurred injuries because of a misdiagnosis. Their damages are determined to be worth $10,000. However, evidence was discovered in trial proceedings that the patient performed activities that aggravated their condition. As such, the court assesses that the plaintiff is 40% at fault for the malpractice. 

This 40% is used to reduce the damages from the initial total of $10,000 to a final recoverable amount of $6,000.

Keep in mind that if the plaintiff is 51% or more responsible, they are not allowed to recover any damages. This applies to cases where the injury occurred on or after May 25, 2015. If the malpractice happened before that date, the plaintiff must prove their fault is not 50% or more to obtain damages. 

This system is known as modified comparative fault.

Methods of Obtaining Compensation

After receiving the notice from the plaintiff, the defendant is entitled to request a pre-litigation mediation. This method promotes communication between parties. Since plaintiffs and defendants aim to avoid litigation, they could also reduce their legal costs through this process. 

However, mediation is not applicable if both parties have different ideas on how to resolve the medical malpractice dispute. They are also not compelled to provide information during mediation, unlike in courtroom proceedings. 

Alternatively, parties may seek to deal with the claim through arbitration. This method allows plaintiffs and defendants to come to a binding decision. Arbitration may also include streamlined processes. The downside, though, is that there is a chance the arbitrators are biased. 

Ultimately, plaintiffs may decide to file a case before the court. Although more costly than other methods, litigation provides victims with the chance to obtain information from liable providers. Nevertheless, remember that most medical malpractice claims in West Virginia are settled outside courtrooms.

How Much Does It Cost to Pursue a Medical Malpractice Case in West Virginia?

It is costly to pursue a medical malpractice case in West Virginia. Much of the cost comes from the attorney’s fees. 

Additionally, West Virginia does not limit attorney’s fees. The state, however, requires that such fees be reasonable. According to the West Virginia Rules of Professional Conduct, some of the factors that determine whether a fee is fair include: 

• The experience of the attorney. 

• The labor and time required.

• The amount involved. 

In light of this, lawyers provide various fee arrangements: 

• Flat fees: These are charged to complete simple and predictable legal tasks. 

• Retainer fees: These are charged upfront to acquire the services of a dedicated attorney. 

• Contingency fees: These are charged when the attorney wins the case. Instead of a fixed amount, a lawyer may obtain a percentage of the damages. In West Virginia, contingency fee rates range between 33% and 40%.

There is also the matter of filing fees. Submitting a complaint before the Circuit Court of Monongalia County costs plaintiffs $200. This fee also applies to cases filed before the Supreme Court of Appeals of West Virginia. 

Legal Resources for Medical Malpractice Victims in West Virginia

Victims of medical malpractice need support as they recover from their injuries. Different organizations in West Virginia deliver multiple solutions to help such individuals with their needs. The links below lead to helpful resources: 

West Virginia Department of Health & Human Resources

The West Virginia Department of Health & Human Resources, or the West Virginia DHHR, provides different services to residents throughout the state. One of these is the administration of the West Virginia Medicaid program. Individuals can learn more about topics like copays on the Bureau for Medical Services’ website. To contact the West Virginia DHHR, call the Client Services Hotline at 1-800-642-8589. 

Disability Rights of West Virginia

Disability Rights of West Virginia works to advocate for and protect residents with disabilities throughout the state. One of the programs the organization manages is Protection and Advocacy for Assistive Technology, or PAAT. It helps individuals access durable medical equipment, like hospital beds, wheelchairs, and shower canes. The program also takes in requests for a range of medical supplies, from feeding tubes to catheters. West Virginians seeking assistance from the organization may contact 304-346-0847. 

Jobs & Hope West Virginia

Jobs & Hope West Virginia aims to support residents struggling with substance use disorders throughout the state. It maintains a dedicated website that contains resources on topics like apprenticeships. The organization also assists eligible individuals through programs that teach them about basic life skills. To contact Jobs & Hope, call 833-784-1385 or 304-583-4008.