West Virginia

West Virginia’s statutes on medical malpractice take a balanced approach to cases that is overall neutral in effect and without bias to either side of a case, whether plaintiff or defendant, about the remainder of the nation. A party in West Virginia, who has been injured through a medical malpractice event, will receive fair and balanced treatment under current West Virginia law, especially should he or she entrust their case to the assistance of legal counsel.

West Virginia Medical Malpractice Laws

In the immediate aftermath of discovering that medical negligence may have potentially caused harms to the patient, an individual should begin considering the basics of potentially filing a medical malpractice claim in the future, which will be subject to West Virginia’s jurisdiction and malpractice laws. A person who has been injured by medical malpractice in West Virginia should minimally consider the following, including:

  • West Virginia medical malpractice cases should be filed within two years of occurrence of the malpractice or discovery of the injury that resulted from it
  • The state has a relatively generous ten-year statute of repose, which allows medical malpractice cases to be filed up to ten years after the malpractice occurred
  • Noneconomic damages in medical malpractice cases are capped, but West Virginia imposes no caps on economic losses
  • The state recognizes joint and several liabilities, and any one of multiple defendants in a medical malpractice action can be obligated to pay the full amount of damages regardless of his level of culpability for the injury
  • Expert testimony is required to establish and prove applicable medical standards and malpractice at trial

Important Deadlines to Remain Cognizant of Concerning West Virginia Medical Malpractice Claims

West Virginia uses a shorter two-year deadline to file a medical malpractice case, meaning that the case must be filed within two years after the occurrence of the malpractice event or discovery of the injury.  If the injury is discovered much later after the event, an injured party will have ten years to file the case before his or her claim is fully and finally barred.

Damages Permitted per West Virginia Medical Malpractice Damage Statutory Caps

West Virginia has enacted a two-tiered cap on noneconomic damages, setting a ceiling of $250,000 for general medical malpractice and $500,000 where the malpractice results in permanent disability or death. West Virginia physicians, however, must carry insurance with at least one million dollars of coverage for this cap to apply in medical malpractice cases filed against them.

Although damages caps have fallen to constitutional challenges in other states, West Virginia’s statute has survived such a challenge. The West Virginia Supreme Court, in 2011, upheld a trial court opinion that reduced a $1.5 million jury award for pain and suffering in a medical malpractice case to $500,000 under the statutory cap. The State’s Supreme Court, in that case, elected not to question the West Virginia legislature’s decision to enact the cap.

If multiple defendants are involved and liability for medical malpractice is found, West Virginia will apply a modified joint and several liability standards, such that any one defendant whose liability for the injuries is greater than twenty-five per cent may be held liable for the entire amount of the monetary damages award.

Verification of Claims Requirements before Initiating Suit in West Virginia

Expert testimony is required to verify the claims of injured parties in West Virginia medical malpractice cases. Those parties must also file an intent to sue with accompanying certificates of merit before initiating their lawsuits.

Although noneconomic damages may be capped in West Virginia, a person who has been injured as a result of medical malpractice can potentially recover the full amount of his or her economic damages in a lawsuit seeking compensation for those damages. Injured parties in West Virginia should consult with qualified counsel at their earliest opportunity if they believe that medical malpractice caused their injuries.

The West Virginia Statute of Limitations and Repose can be found at:

http://www.legis.state.wv.us/wvcode/ChapterEntire.cfm?chap=55&art=7b&section=4

For a report on the recent case the challenged West Virginia’s cap on noneconomic damages, see:

http://www.clinicaladvisor.com/legal-advisor/west-virginia-court-upholds-medical-malpractice-damage-cap/article/207845/

 

 

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