West Virginia Medical Malpractice FAQs
When we need medical care, we trust doctors, nurses, hospitals, and other healthcare providers to deliver treatment capably and professionally. While most providers offer competent care, preventable medical errors can and do occur. When those mistakes cause serious injury or death, patients and their families may have the right to pursue a medical malpractice claim.
Medical malpractice cases are among the most complex types of personal injury litigation. At Burke, Schultz, Harman & Burke, our Martinsburg medical malpractice lawyers help injured patients throughout West Virginia understand their legal rights after medical negligence. Below are answers to some of the most frequently asked questions we hear about medical malpractice claims.
What Is Medical Malpractice?
Medical malpractice occurs when a healthcare provider fails to provide treatment that meets the accepted standard of care, and that failure causes injury or death. Not every poor medical outcome constitutes malpractice. Medicine is not an exact science, and some complications occur even when appropriate care is provided.
To establish malpractice under the West Virginia Medical Professional Liability Act (MPLA), a plaintiff generally must prove that the healthcare provider breached the applicable standard of care and that the breach was a proximate cause of the patient’s injuries.
What Is the “Standard of Care”?
The standard of care refers to the level of knowledge, skill, and care that a reasonably qualified healthcare provider in the same field would exercise under similar circumstances. Because this standard is often beyond the understanding of jurors, expert medical testimony is typically required to establish what the appropriate standard of care was and how the defendant failed to meet it.
Who Can Be Sued for Medical Malpractice?
The MPLA applies to a wide range of healthcare providers. Depending on the circumstances, a medical malpractice claim may involve physicians, surgeons, nurses, hospitals, outpatient surgical centers, nursing homes, physician assistants, nurse practitioners, chiropractors, dentists, pharmacists, and other licensed healthcare professionals or facilities. In some cases, more than one provider or institution may share responsibility for the patient’s injuries.
How Long Do I Have to File a Medical Malpractice Lawsuit?
Generally, West Virginia law requires a medical malpractice lawsuit to be filed within two years of the injury or within two years of when the injury reasonably should have been discovered through the exercise of reasonable diligence.
The MPLA also contains a 10-year statute of repose, which generally bars claims filed more than ten years after the alleged malpractice, even if the injury wasn’t discovered until later. Certain exceptions may apply, particularly for young children and cases involving fraud or concealment.
Because determining the applicable deadline can be complicated, it is important to consult an attorney as soon as you suspect medical negligence.
Do I Have to Give Notice Before Filing a Lawsuit?
Yes. One of the most important features of West Virginia’s Medical Professional Liability Act is its pre-suit notice requirement. Before filing a medical malpractice lawsuit, the plaintiff must serve each prospective defendant with a Notice of Claim at least 30 days before filing suit. The notice must include a statement describing the legal basis of the claim and the theory of liability. Along with the notice, the plaintiff must also provide a Screening Certificate of Merit prepared by a qualified healthcare expert. The certificate explains how the applicable standard of care was violated and how that violation caused the patient’s injuries. These requirements are intended to encourage early evaluation of claims and, in some instances, facilitate settlement before litigation begins.
Is Expert Testimony Always Required?
In most medical malpractice cases, yes. When the standard of care (and the provider’s failure to meet it) is at issue, the MPLA requires qualified expert testimony to establish the applicable standard of care, explain how it was breached, and connect that breach to the patient’s injuries.
What Compensation Can Be Recovered?
Depending on the circumstances, a successful medical malpractice claim may include compensation for harm such as:
- Past and future medical expenses
- Lost wages and reduced earning capacity
- Pain and suffering
- Emotional distress
- Permanent disability or disfigurement
- Loss of enjoyment of life
In cases where medical negligence results in death, the decedent’s estate may pursue a wrongful death claim on behalf of eligible surviving family members.
Are There Limits on How Much Can Be Recovered?
Yes. West Virginia law places caps on noneconomic damages, which include compensation for pain and suffering, emotional distress, inconvenience, and similar nonfinancial losses. The amount of the cap depends on the nature of the injury. The cap currently sits at $375,000, although a higher cap of $750,000 applies when malpractice results in wrongful death, permanent and substantial physical deformity, loss of use of a limb or organ system, or permanent physical or mental functional injury that permanently prevents the injured person from independently caring for himself or herself and performing life-sustaining activities. These statutory limits are periodically adjusted by law. Importantly, these caps do not apply to economic damages such as medical bills or lost income.
How Is Medical Malpractice Different from an Ordinary Personal Injury Case?
Medical malpractice claims involve unique legal requirements that do not apply to most personal injury cases. In addition to the pre-suit notice and certificate of merit requirements, these cases usually require extensive medical records review, multiple expert witnesses, depositions of treating physicians, and highly technical evidence concerning accepted medical practices. Because of these additional requirements, it is essential to work with attorneys who understand both personal injury litigation and the procedural rules established by the Medical Professional Liability Act.
Do Most Medical Malpractice Cases Go to Trial?
Not necessarily. Many medical malpractice claims settle before trial. However, obtaining a fair settlement depends on careful preparation. Insurance companies and healthcare providers are more likely to negotiate seriously when they know the plaintiff’s attorneys have thoroughly investigated the case, retained respected medical experts, and are fully prepared to present the evidence to a jury if necessary. At Burke, Schultz, Harman & Burke, we prepare every medical malpractice case as though it will be tried. That commitment to thorough investigation and trial preparation often strengthens our clients’ position during settlement negotiations and helps maximize the value of their claims.
How Can an Attorney Help?
Medical malpractice litigation is governed by detailed procedural requirements and often involves highly contested medical issues. An experienced attorney can investigate what happened, obtain and analyze medical records, consult qualified experts, comply with the MPLA’s pre-suit requirements, negotiate with insurers, and, when necessary, present your case in court. If you believe you or a loved one has been harmed by medical negligence, speaking with an attorney early can help preserve evidence, protect your legal rights, and ensure compliance with the applicable filing deadlines.
Contact Burke, Schultz, Harman & Burke
If you suspect that medical negligence caused serious injury or the loss of a loved one, the attorneys at Burke, Schultz, Harman & Burke are here to help. We represent patients and families throughout West Virginia, providing experienced legal guidance through every stage of the medical malpractice process. Contact us today for a free consultation. We will evaluate your case, explain your legal options, and help you determine the best path forward.
