What is the procedure for medical malpractice cases in West Virginia?

What is the procedure for medical malpractice cases in West Virginia?


In 1986, the West Virginia legislature introduced what is known as the Medical Professional Liability Act (W.Va. Code § 55-7B-1 et seq.).  The Act requires that all professional healthcare providers in the state of West Virginia provide each patient with quality medical care.  If a professional healthcare provider commits malpractice, he or she has violated the applicable standard of care while providing medical care to a patient which resulted in an injury to that patient.


There are several ways a healthcare provider may commit malpractice while providing care to a patient.  These may include: (1) Failure to properly diagnose or misdiagnose an underlying disease or disorder; (2) a medication error; (3) an emergency room error; (4) an error during an operation; (5) an error while administering anesthesia; or (6) a birth injury.


While thousands of medical malpractice claims occur each year, these claims are often difficult cases to pursue.  It is important to have an experienced medical malpractice lawyer who understands the medicine, literature and laws involved with a complex medical malpractice claim and gets results.  Before pursuing a medical malpractice claim, certain procedures must be followed prior to filing a complaint.  First, a “notice of claim” must be served to the health care provider(s) that may be named as defendants in the lawsuit.  The “notice of claim” must be accompanied with a “screening certificate of merit”, signed under oath, by a qualified expert according to the West Virginia Rules of Evidence.  Upon the potential defendant(s) receipt of the “notice of claim”, they have thirty (30) days to request pre-suit mediation, if desired.  After thirty (30) days, if pre-suit mediation was not requested, the client may file his or her complaint.


After filing the complaint, the client must then prove several elements, which include showing, there was a duty owed by the physician, nurse or hospital, a breach of that duty occurred resulting in a deviation from the standard of care and that breach caused harm to the client.  If these elements are proven, the client will be entitled to damages.  Damages consist of non-economic and economic.  While West Virginia has caps on non-economic damages (pain and suffering as well as emotion distress) of $250,000 and $500,000 (permanent injury or death), there is not a cap on economic losses.  These loses include medical expenses (past and future), lost income (past and future), loss of household services and other loses.  Keep in mind, if you or a loved one has been injured as a result of medical malpractice, a claim must be brought within two (2) years from the date the malpractice occurred or was known to have occurred.

It is important to consult an experienced West Virginia medical malpractice attorney as soon as possible to ensure that you do not miss a crucial deadline. Preston & Salango, PLLC’s experienced lawyers are prepared to give you the legal assistance you need to achieve the best legal results possible.

Please call (304) 342-0512 today for a free consultation. Preston & Salango serves Charleston, Beckley, Clarksburg, Huntington, Morgantown, and all of West Virginia.

Categories: Medical Malpractice, Nursing Home Abuse, Personal Injury