West Virginia Medical Malpractice Law

What is Medical Malpractice

Medical malpractice cases involve allegations that a health care provider violated the governing standard of care while treating a patient, resulting in an injury to the patient. The harm from medical malpractice can result from either an action taken by the health care provider, or by omission, the failure to take a medically appropriate action.

A medical malpractice case may be pursued by an injured patient against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional.

Medical Negligence

Medical malpractice actions are normally based upon the theory of negligence, alleging that a medical professional violated a duty of care to a patient, resulting in an injury to the patient. Examples of medical malpractice include,

  • Failure to diagnose a medical condition or disease,

  • Misdiagnosis of a medical condition or disease,

  • Failure to provide medically appropriate treatment,

  • An unreasonable delay in the start of treatment for a diagnosed medical condition or disease;

  • Mistakes in the prescription or dosing of medication.

Informed Consent

Medical malpractice cases may also result from the assertion that a patient did not give informed consent for a medical procedure, with the patient alleging that the procedure involved a material risk that was not properly disclosed by the physician, and that the patient would not have agreed to the procedure had the patient been aware of the risk. The proper performance of a medical procedure is not a defense to an informed consent action. While an informed consent case can potentially be based on an allegation of battery, in general the allegation will be that the outcome of the medical treatment was different than it would have been had the patient been able to make an informed choice.

Informed consent claims can also arise based upon changes to a course of treatment or surgery made after consent was given. In some contexts obtaining the patient's consent is not necessary, For example, in trauma care or cases involving a patient with a mental health problem it may not be possible to obtain consent prior to the commencement of medical treatment, or consent must be obtained from a third party such as a guardian, spouse or parent.

Damages in West Virginia Malpractice Cases

Damages in medical malpractice cases normally take the form of economic damages such as wage loss, the cost of medical care, and other out-of-pocket expenses, and non-economic damages for pain and suffering resulting from the injury. In rare cases, the level of misconduct may rise to the level that a victim of malpractice can recover punitive damages against the defendant.

Damages Caps

Some states limit the amount of money that a person injured by medical malpractice can recover as compensation for non-economic damages. In West Virginia, non-economic (pain and suffering) damages in medical malpractice cases were capped in 2004 at $250,000, not to increase above $375,000. For catastrophic injuries including wrongful death, permanent and serious disfigurement, or permanent physical or mental functional injury that permanently prevents the injured person from being able to independently care for himself or herself and perform life-sustaining activities, the cap is increased to $500,000, adjusted annually for inflation to an eventual absolute cap of $750,000.

West Virginia also caps total liability for a malpractice injury suffered by a plaintiff at a designated trauma center at $500,000, adjusted for inflation starting in 2016, without regard for the plaintiff's actual economic damages or the severity of the patient's injury. In theory, an additional award of up to $500,000 would be available from the West Virginia Patient Injury Compensation Fund, but claims made against that fund vastly exceed the amount of money available through the fund.

Joint and Several Liability

When more than one defendant is sued, under joint and several liability each defendant may be required to pay the full amount of the verdict. This policy helps ensure that a malpractice victim will be fully compensated even if one of the defendants has insufficient funds or insurance. West Virginia instead follows a rule of several liability, with each defendant severally liable for damages to the plaintiff in proportion to the percentage of fault assigned to that defendant for the plaintiff's injury.

The Collateral Source Rule

Under the traditional collateral source rule, payments received by the malpractice victim from third parties such as medical insurance companies would not be considered in the calculation of damages. West Virginia has eliminated this rule for medical malpractice cases.

The Statute of Limitations for Medical Malpractice in West Virginia

The statute of limitations limits the amount of time a person alleging medical malpractice has to file a lawsuit against health care providers. In West Virginia, the statute of limitations for a malpractice case is two years from the date of injury or reasonable discovery or the injury, but not more than ten years after the date of injury. Minors under the age of ten may commence a malpractice lawsuit within two years of the date of injury or by their twelfth birthday, whichever period is longer.

Additional Rules for West Virginia Malpractice Cases

Additional rules affecting malpractice litigation in the State of West Virgina include:

Screening Certificate of Merit Rules

A screening certificate of merit is a document created by a medical expert, attesting that the expert has reviewed the facts of the case and finds there to be merit to the malpractice plaintiff's claim. In West Virginia, at least thirty days prior to commencing a medical malpractice action, the claimaint must serve notice upon on all health care providers who will be joined in the lawsuit, informing them of all parties who will be named as defendants, and providing a screening certificate of merit. A separate screening certificate of merit must be filed for each health care provider against which a claim is asserted.

The screening certificate of merit must be executed under oath by a health care provider qualified as an expert witness, and must describe the expert's familiarity with the applicable standard of care in issue, the expert's qualifications, the expert's opinion as to how the applicable standard of care was breached, and the expert's opinion as to how the breach of the applicable standard of care resulted in injury or death. The person signing the screening certificate of merit must not have any financial interest in the underlying claim, but may participate as an expert witness in any judicial proceedings.

Alternative Dispute Resolution

Upon being served with a screening certificate of merit, a health care provider may submit a written demand to the claimaint, requiring pre-litigation mediation before a qualified mediator. If mediation is requested, the claimaint is permitted to depose the health care provider prior to mediation or to take the testimony of the health care provider during the mediation proceedings. The statute of limitations for a malpractice action is tolled during the period following receipt of the demand formediation from the date that the claimant's response is due, or thirty days from the date the claimant is receives notice from the mediator that the mediation did not result in the settlement of the claim and has concluded, whichever is longer.

Where more than one health care provider is involved, in order for the statute of limitations to be tolled against any provider other than the one who demanded mediation, the claimaint must send them a notice of claim within thirty days of the claimant's receipt of notice that the mediation did not result in settlement and has concluded.

The health care providers response to any notice claim, a screening certificate of merit, and the results of mediation are confidential and inadmissible as evidence unless the court, upon hearing, determines that failure to disclose the contents would cause a miscarriage of justice.

Medical Expert Witness Restrictions

In order a witness to testify as an expert witness in a West Virginia medical malpractice case, a foundation must be laid establishing that the opinion is actually held by the expert witness, that the opinion can be testified to with reasonable medical probability, that the expert witness possesses professional knowledge and expertise, as well as knowledge of the applicable standard of care to which his or her expert opinion testimony is addressed, that the expert witness maintains a current license to practice medicine within the United States, and that the license has not been revoked or suspended during the prior year by any state, and that the expert is engaged or qualified in a medical field in which the practitioner has experience, training in diagnosing or treating injuries or conditions similar to those of the patient, or both. If, at the time of the medical injury, at least 60 percent of the proposed expert's professional time was devoted to the active clinical practice of the expert's medical field or specialty, or to teaching of that medical field or specialty in an accredited university, a rebuttable presumption exists that the witness is qualified as an expert.

Apology Law

An apology law prevents a plaintiff from using an apologetic or concilatory statement made by a defendant as evidence of the defendant's liability. Under West Virginia's apology law, for a healthcare provider who provided healthcare services to a patient, no statement, affirmation, gesture or conduct of, expressing apology, sympathy, commiseration, condolence, compassion or a general sense of benevolence made by the provider to the patient, their relative or representative, which relates to the discomfort, pain, suffering, injury or death of the patient is admissible as evidence of an admission of liability or as evidence of an admission against interest in any medical malpractice case, or in any arbitration, mediation or other alternative dispute resolution proceeding related to such a case.

Why Consult a Medical Malpractice Lawyer

If you believe that you have been injured by medical malpractice, a lawyer can help you by reviewing the facts and medical records of your case to determine if you have a viable case under the laws of your state. Medical malpractice cases are complex, and are very costly to litigate. Medical malpractice lawyers working on contingency fees will advance the cost of litigation, recovering those costs from the eventual verdict or settlement. A malpractice lawyer should be aware of changes in the law, and can help you avoid missing a filing deadline.

Copyright © 2016 Aaron Larson, All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you use a quotation, excerpt or paraphrase of this article, except as otherwise authorized in writing by the author of the article you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.

This article was first published on , and was last reviewed or amended on Feb 15, 2016.