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West Virginia Medical Malpractice Law - An Overview

Important Notice: The following overview of West Virginia's medical malpractice laws is presented on an as-is basis. This information is believed accurate as of the date of authorship, but is not intended to provide a complete analysis of medical malpractice law and may not reflect subsequent changes in the law. For a full review of West Virginia's medical malpractice law, or for a determination of how the law applies to a specific incident or injury, please consult a malpractice lawyer licensed to practice in the state of West Virginia.

Contents

What Is Medical Malpractice

Medical malpractice, sometimes referred to as medical negligence, occurs when a health care provider violates the governing standard of care when providing treatment to a patient, causing the patient to suffer an injury. Medical malpractice can result from an action taken by the medical practitioner, or by the failure to take a medically appropriate action. Examples of medical malpractice include:

  • Misdiagnosis of, or failure to diagnose , a disease or medical condition;
  • Failure to provide appropriate treatment for a medical condition;
  • Unreasonable delay in treating a diagnosed medical condition;

Medical malpractice actions can be brought by the injured patient against any responsible licensed health care provider, including doctors, counselors, psychologists and psychotherapists.

Limits on Malpractice Damages

West Virginia limits noneconomic damages in medical malpractice cases to $250,000.00, or $500,00.00 in cases involving wrongful death or permanent disability. The caps are increased for inflation, starting in 2004. Physicians must carry liability insurance in an amount not less than $1 million in order to qualify for the caps.

Collateral Source Rule

Under a traditional collateral source rule, a defendant may not seek to reduce its liability by introducing evidence that the plaintiff has received compensation from other sources, such as the plaintiff's own insurance coverage. For medical malpractice cases in West Virginia, a defendant who has been found liable to the plaintiff for damages for medical care, rehabilitation services, lost earnings or other economic losses may present to the court, after the trier of fact has rendered a verdict, but before entry of judgment, evidence of payments the plaintiff has received for the same injury from collateral sources, for purposes of obtaining an offset from the judgment.

Rules for Expert Witnesses

Expert witnesses must be currently trained and licensed to practice in the same or similar specialty as the defendant, and must devote at least 60% of their time to clinical practice, or teaching at an accredited university.

Joint and Several Liability

Under a traditional rule of joint and several liability, where more than one defendant is found liable for the injury suffered by a plaintiff, each defendant is individually liable for the entire amount of the judgment, such that if one defendant is unable to pay the other defendant or defendants are liable for the entire amount of the judgment. West Virginia has abolished this rule, such that each defendant is liable for damages only in an amount proportionate to that defendant's fault for the plaintiff's injury.

Statute of Limitations

Medical malpractice actions must be commenced within 2 years from the date the injury occurred, or within two years from the date the injury was or reasonably should have been detected. Under West Virginia law, minors may bring an action for malpractice within two years of the date of injury or until age twelve, whichever period is longer.

Limits on Attorney Fees

West Virginia does not impose special limits on attorney fees in medical malpractice cases.

Additional Rules

At least thirty days before a complaint is filed, the plaintiff must file notice of intent to sue with a certificate of merit for each defendant named in the complaint. A certificate of merit must state the expert's familiarity with the standards of practice, the expert's qualifications, and the expert's opinion in relation to the defendant's alleged breach of the standard of care.

West Virginia mandates periodic payments of future damages in excess of $100,000.00.

Why Use A Malpractice Lawyer

Medical malpractice law is a highly technical field of law, and malpractice lawsuits tend to be fiercely defended by well-funded defense firms.

Medical malpractice lawsuits can be exceptionally expensive to pursue, with costs often exceeding $100,000.00. Due to the technical skills involved in prosecuting a malpractice claim, the possibility that an inexperienced lawyer may not be sufficiently conversant with the medical issues, or might make a technical error which causes a case to be lost or dismissed, and the very high costs the malpractice law firm typically must advance, an injured patient is very well served by going with a specialist firm.

Even within the specialized practice of medical malpractice law, you will find that some lawyers have subspecialties of practice, for example focusing on surgical errors, misdiagnosis, or birth trauma cases.