Medical malpractice, or medical errors, are the third-leading cause of death in the United States.
Regardless of what a person’s job is, mistakes can happen. However, a mistake made by a doctor, chiropractor, nurse, or other health care provider can have dire outcomes. Medical malpractice can lead to lifelong medical problems, disabling injuries, and death. These harms are in addition to medical bills, lost income, psychological injuries, and physical pain caused by a health care provider’s conduct.
The Elements of a Medical Malpractice Claim
In West Virginia, patients injured by a health care provider can pursue a case against the health care provider for the harms and losses caused by the medical provider’s breach of an accepted standard of care. In order to prove a case of medical malpractice, an injured patient must prove: “(1) the health care provider failed to exercise 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; and (2) Such failure was a proximate cause of the injury or death.” W. Va. Code § 55-7B-3.
Statutes of Limitations for Medical Malpractice Cases
A case for medical malpractice must generally be brought within two years of the injury. Nevertheless, if the injury is not readily apparent, a case may be brought within two years when a patient discovers, or with the exercise of reasonable diligence should have discovered, the injury. W. Va. Code § 55-7B-4(a). Regardless of discovery, all medical malpractice cases must be brought within ten years of the injury. Id.
The statute of limitations is slightly different for children who were injured when under the age of ten. A medical malpractice claim “brought by or on behalf of a minor who was under the age of ten years at the time of such injury, shall be commenced within two years of the date of such injury, or prior to the minor’s twelfth birthday, whichever provides the longer period.” W. Va. Code § 55-7B-4(c).
Importantly, if a health care provider hides the injury, commits fraud, or misrepresents facts about the injury, the time in which the health care provider conceals his or her conduct may extend the statute of limitations. W. Va. Code § 55-7B-4(d).
Unlike many other personal injury cases, thirty days before a medical malpractice case is filed, an injured patient must provide a certificate of merit to the health care provider that outlines, among other things, the theories of liability that the case is based upon. W. Va. Code § 55-7B-6(b). This notice of claim must also include a screening certificate of merit from a physician or medical professional qualified as an expert that provides an opinion that the health care provider breached an accepted standard of care. Id. Nevertheless, there is an exception to the screening certificate of merit requirement in limited circumstances.
Limitations on Non-Economic Damages
West Virginia’s Medical Professional and Liability Act places limits upon the amount of non-economic damages a jury can award an injured patient. The “maximum amount recoverable as compensatory damages for noneconomic loss may not exceed $250,000 for each occurrence.” W. Va. Code § 55-7B-8(a). This cap is increased to $500,000, where the injury results in “(1) Wrongful death; (2) permanent and substantial physical deformity, loss of use of a limb or loss of a bodily organ system; or (3) 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.” W. Va. Code § 55-7B-8(b). These cap amounts are increased annually to account for inflation. W. Va. Code § 55-7B-8(c).
West Virginia law places significant hurdles in front of injured patients who have been harmed by a doctor, chiropractor, nurse, or other health care provider. The information provided in this blog is intended to provide a general overview of the law and does not constitute legal advice. When evaluating your case, a medical malpractice attorney will look closely at the facts and medical treatment you received to determine if your case is viable. At Barney Law PLLC, we look closely at the facts of each case and consider the facts in light of the current state of West Virginia law.