A doctor, nurse, or health care facility hurt you, and now you’re dealing with the aftermath on your own. There is help available, though. The Charleston medical negligence attorneys at DiPiero Simmons McGinley & Bastress, PLLC have compiled information about some of the most important and relevant West Virginia medical malpractice laws.
If you have any questions about the content of this post or would like help understanding your own legal situation, we are always available to meet for no-cost, no-obligation case evaluations.
In this post, we’ll cover topics like:
- How long you have to file a medical malpractice claim, and what exceptions, if any, may apply.
- The types of health care providers and medical facilities that can be held responsible for negligent or reckless actions.
- The four elements of negligence that every medical malpractice claim must meet.
Laws Dealing with Medical Malpractice in West Virginia
Let’s review laws surrounding medical malpractice insurance, statutes of limitations, responsible parties, and compensation caps:
Medical Malpractice Insurance
The state of West Virginia does not have any minimum medical malpractice insurance requirements for doctors practicing within the state. In fact, state law does not require healthcare providers to maintain any type of medical malpractice insurance at all.
However, because of the high cost associated with litigation, most physicians elect to carry insurance.
Statutes of Limitations
A statute of limitations is a time period on your right to take legal action. Under §55-7B-4 (a), you have two years to file a claim for most claims of medical malpractice. There are notable exceptions to this time limit, though.
For example, a statute of limitations may be tolled (temporarily stopped) if the injury or cause of injury is not immediately apparent. In this situation, the statute of limitations would instead begin from the date at which the victim realized what caused their injury or from the point at which they should have reasonably discovered this information. However, once 10 years have passed, you lose all rights to file a claim—even if you didn’t immediately realize that you were harmed by an act of malpractice.
- 55-7B-4 (b) covers statutes of limitations for acts of malpractice that take place in assisted living facilities. For these cases, you have only one year from the date of injury or discovery to file your claim. And once 10 years have passed, you also lose out on all rights to file your claim.
According to §55-7B-4 (c), the statute of limitations for malpractice involving minors under the age of 10 is either a period of two years from the date of injury or the period of time until their 12th birthday—whichever provides the longer amount of time.
Negligent Parties
So, who can be held responsible for acts of medical malpractice in West Virginia? You can hold almost any healthcare provider who harmed you liable for their actions, including:
- Family doctors
- Pediatricians
- Neurologists
- Oncologists
- Surgeons
- Radiologists
- Cardiologists
- Orthopedists
- Urologists
- Obstetricians/Gynecologists
- Gastroenterologists
- Dermatologists
- Anesthesiologists
- Nurse practitioners
- Nurses
This is an incomplete list of possible healthcare providers who can be named in a medical malpractice claim or lawsuit. If you’ve been injured by someone that you entrusted with your care and treatment, then you may be entitled to compensation for all resulting damages.
In certain circumstances, medical facilities like hospitals, ambulatory surgery centers, nursing homes, and assisted living facilities can also be held liable for acts of medical negligence.
Compensation Caps
There is no cap on compensation for economic damages in medical malpractice cases. Economic damages are the tangible, verifiable, and calculable losses that you’ve suffered, such as:
- Medical expenses
- Lost or missing wages
- Ambulance costs
- Surgical fees
- Rehabilitative costs
- Domestic services
- And more
- 55-7b-8 (a) limits compensation for noneconomic damages, which include intangible losses like pain and suffering, mental anguish, and loss of enjoyment of life. Compensation for noneconomic damages is capped at $250,000 in West Virginia.
Under §55-7B-8 (b), the cap on compensation for noneconomic damages is raised to $500,000 for cases involving:
- Wrongful death
- Permanent and substantial deformity
- Loss of use of a limb
- Loss of use of bodily organ system
- Permanent physical or mental injury that prevents the victim from independently caring for themselves
- 55-7-29 further limits the amount of compensation you may recover for punitive (exemplary) damages in civil cases, the category under which medical malpractice falls. If a judge or jury chooses to award punitive damages, they may not exceed $500,000 or four times more than the awarded compensatory damages, whichever is more.
Understanding a Doctor’s Duty of Care
Every physician has a legal duty of care to uphold the standard of care. Although these two terms are similar, they have different meanings.
- Duty of care – A legal obligation to provide the appropriate level of care to patients, established at the creation of the doctor-patient relationship.
- Standard of care – The actions or course of treatment that a reasonable or prudent health care provider would take if placed in the same or similar circumstances.
Understanding the difference between these two terms is essential for correctly establishing negligence in your medical malpractice claim.
Meeting the Four Elements of Negligence
There are four main elements that must be established and met to prove negligence. These are duty of care, breach, causation, and damages. Here’s how the elements of negligence look in a case of medical malpractice.
- The health care provider owed the patient a duty of care.
- The health care provider breached that duty by violating the standard of care.
- That breach caused you to suffer injuries.
- You suffered verifiable damages as a result.
Take Charge of Your Medical Malpractice Case with the Help of an Attorney
Medical malpractice cases are exceptionally complicated, in part because of the very nature of health care. Not every treatment is successful, and unavoidable negative outcomes are not at all uncommon.
So, how do you prove that what happened to you was the result of negligence and not just an expected outcome of your treatment? At DiPiero Simmons McGinley & Bastress, PLLC, our team of medical malpractice lawyers can expertly review the details of your case. We have the experience, background, and knowledge needed to pinpoint acts of negligence and the stages at which things went wrong.
We’re here to help. Are you ready to take the first step? Get in touch today so that we can match you with an expert lawyer for a free informational meeting.
