Since taking effect in 1986, the Medical Professional Liability Act, W.Va. Code § 55-7B-1 et seq, has contained the statutory scheme for medical malpractice litigation in West Virginia. The legislature’s stated objective of the Act is to provide “adequate and reasonable compensation to those persons who suffer from injury or death as a result of medical negligence” while balancing “the cost of liability insurance coverage . . .” In West Virginia It is the duty of all professional healthcare providers to provide each patient with quality medical care.
Medical malpractice occurs when a health care provider violates the applicable standard of care while providing treatment to a patient, causing injury. Medical malpractice often results from the misdiagnosis of, or failure to diagnose, a disease or medical condition; the failure to provide necessary treatment for a medical condition; the unreasonable delay in treating a diagnosed medical condition, or the mismanagement of prescription medications. Medical malpractice actions may be brought by a patient against all responsible licensed health care providers, such as doctors, therapists, counselors, psychologists and psychotherapists.
Filing and Proving a Medical Malpractice Claim
Certain pre-filing procedures must be completed prior to filing a complaint alleging medical malpractice claims. A “notice of claim” (aka “thirty-day letter”) must be served by certified mail upon the health care provider(s) intended to be named as defendants. This correspondence must include a statement of the theories of liability and a screening certificate of merit, the latter executed under oath by a health care provider who qualifies as an expert under the West Virginia Rules of Evidence.
Under W.Va. Code § 55-7B-3, a plaintiff must prove that the defendant healthcare provider failed to exercise the 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 upon the same or similar circumstances.
The defendant’s failure to meet the standard of care must be the proximate cause of the injury or death. “‘Proximate cause’ is that “cause which in actual sequence, unbroken by any independent cause, produced the wrong complained of, without which the wrong would not have occurred.”Steward v. George, 216 W.Va. 288, 607 S.E.2d 394 (2004). If proceeding under a “loss of chance” theory, the Act requires that a plaintiff establish, to a reasonable degree of medical probability, that if the defendant had the followed the accepted standard of care, the result would have been a greater than 25% chance of recovery or survival.
Statute of Limitations
Generally, medical malpractice causes of action arise as of the date of the injury with a two-year statute of limitations, although the discovery rule may extend the statute. Under the discovery rule, a cause of action does not arise until the injury is discovered, or should have been discovered by the exercise of reasonable diligence.
W.Va. Code § 55-7B-4 prohibits an action from being filed more than ten years after the date of injury. Actions on behalf of minors under the age of ten must be commenced within two years of the date of the injury, or within two years of the minor’s twelfth birthday, whichever results in the longer filing period. The limitation period is tolled if a defendant commits fraud, misrepresentation, collusion or concealment.
Expert Witnesses
Expert testimony is required to both establish and prove the medical standard of care in a West Virginia medical malpractice case. W. Va. Code § 55-7B-7 mandates that medical experts must “be engaged or qualified in the same or substantially similar medical field as the defendant health care provider” according to. Exceptions to this rule are in cases where common knowledge is sufficient or the plaintiff raises the doctrine of res ipsa loquitur, i.e., the defendant’s wrongful action “speaks for itself.”
Caps on Damages
In West Virginia, economic losses are not capped, therefore medical expenses, lost income, and other calculable damages aren’t limited in any way by West Virginia law. However, non-economic losses, which include pain and suffering, as well as emotional distress, are capped at $250,000, although for certain cases of catastrophic injury or wrongful death the cap doubles to $500,000 per claim. These caps on damages are adjusted yearly for inflation.
Miscellaneous Information
Unlike most states, West Virginia does not require physicians to carry malpractice insurance. Also, West Virginia does not have a state Patient Compensation Fund. Parties may use arbitration or mediation to resolve medical malpractice claims.
If you have been injured by the action, or inaction, of a healthcare provider, call Amy Crossan, an expert in personal injury law, for a consultation at 304-523-8451.