West Virginia’s statutes on medical malpractice take a balanced approach to cases that are 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.
If you’ve been harmed and suspect medical negligence, call an accomplished West Virginia medical malpractice lawyer at Lacy Law.
CALL LACY LAW TODAY AT 304-741-5565.
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
The Different Types of Medical Malpractice
Medical malpractice is an overarching term that refers to many different situations. Medical malpractice incidents all take place in a medical facility, such as a hospital or doctor’s office.
Some of the different types of medical negligence cases our firm frequently handles include:
- Birth injuries
- Defective medical devices
- Sexual assault by a doctor or another medical professional
- Surgical errors
- Anesthesia errors
- Improper or incorrect treatment or diagnoses
- Failure to diagnosis
- Failure to treat
- Failure to treat in a timely manner
- Failure to conduct the appropriate medical tests
- Medication errors
- Transfusion errors
- Emergency room delays
- Premature hospital releases
- Negligence leading to infection
- Inattentiveness by hospital staff
- Many more
Virtually any type of medical professional or healthcare facility staff member may be held accountable for taking part in medical negligence or malpractice. Those who may be able to be held responsible include:
- Doctor’s assistants
- Medical technicians such as x-ray technicians
- Emergency room staff members
- Urgent care center staff members
- And more
Preventable medical errors kill and seriously injure hundreds of thousands of Americans every year. The Institute of Medicine’s (IOM) study of preventable medical errors in Virginia malpractice laws estimated as many as 98,000 people die every year from such errors. One in three Americans say that they or a family member has experienced a medical error, and one in five say that a medical error has caused either themselves or a family member serious health problems or death.
Notice of Claim and “Screening Certificate of Merit” in West Virginia Medical Malpractice Cases
At least 30 days prior to filing a medical malpractice lawsuit, West Virginia Code section 55-7B-6 requires the plaintiff to send a “notice of claim” to each health care provider being sued. This notice must be sent via certified mail, and it must include:
- a statement of the grounds for the lawsuit, and the theory of liability on which it is based
- a list of all health care providers receiving the notice, and
- a “screening certificate of merit.”
The “screening certificate of merit” is a written statement by a health care provider who qualifies as an “expert” under West Virginia civil court rules. In the statement, the medical expert must describe his or her:
- qualification as an expert under West Virginia law
- familiarity with the medical standard of care appropriate to the circumstances under which the plaintiff was treated (West Virginia defines this “standard of care” as “that degree of care, skill, and learning required or expected of a reasonable, prudent health care provider in the profession or class to which the health care provider belongs acting in the same or similar circumstances”)
- opinion as to how the defendant failed to provide treatment in line with the applicable standard of care, and how that failure resulted in injury to the plaintiff.
This is a simplified explanation of the “screening certificate of merit” requirement. Check out the full details at West Virginia Code section 55-7B-6.
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 percent may be held liable for the entire amount of the monetary damages award.
Our Experienced Charleston Medical Malpractice Lawyers Can Help
Physicians and other medical personnel have a duty to their patients to provide a standard of care based upon specific protocols and compliance standards. If the standard of care is not followed, that could be indicative of medical malpractice.
In West Virginia, to prove medical malpractice, it is necessary to present qualified expert testimony that indicates negligent treatment. LACY LAW works closely with medical professionals to investigate, develop and prove claims of malpractice.
To ensure your rights and obtain a maximum recovery, it is important to work with a law firm that has a reputation for excellence and a foundation of experience. LACY LAW has represented clients throughout West Virginia for over 40 years resulting in million dollar and multi-million dollar settlements.
We are part of a small percentage of medical malpractice lawyers in the United States recognized by other law firms for legal expertise and ethical conduct. As such, LACY LAW is nationally recognized for legal ability and professionalism. We have an established record of success in representing clients who have been damaged or injured by others whether it be from a car accident, mining accident, medical malpractice, birth injuries, cerebral palsy, trucking accident, mesothelioma, wrongful death or other catastrophic events. We are trial medical malpractice lawyers who will fight for your cause! You owe us nothing unless we recover damages for you. If you can’t come to us, we will come to you!