Medical Malpractice Attorney Charleston, WV

Have Grounds for Medical Malpractice in West Virginia?

The role of a medical professional is to care for you and your loved ones, but many are unfortunately affected by the negligence of doctors, nurses, and facilities. When the improper actions of a medical provider result in harm to a patient, it is referred to as medical malpractice.

To have grounds for a medical malpractice case, the following must be true regarding the healthcare provider:

• The provider had a duty of care to the patient
• The provider breached that standard of care
• That breach of care resulted in harm to the patient

It can be difficult to know for certain if you have valid grounds for a medical malpractice case, some things to consider that might indicate you do have a case include:

• Lack of informed consent – This might be when a doctor performs a procedure that the patient did not consent to and/or the doctor did not adequately explain the risks and benefits of a procedure, which would have influenced the patient’s decision in getting the procedure.
• Extraordinary consequences – If you experienced an unusual outcome from a treatment or procedure, then this could indicate that the healthcare provider made a mistake.
• Informed of the mistake – Some healthcare providers will be honest about medical errors and address them directly with the patient.

Patients should be able to have confidence that their healthcare providers will be professionally competent and keep their best interests at heart. The Charleston, WV medical malpractice lawyers at Pence Law Firm PLLC have the knowledge, experience, and dedication to tackling these claims head-on.

We are proud to aggressively represent clients suffering from medical mistakes. Let our team fight for the compensation you deserve – call (304) 343-2222 or contact us online to discuss your case with a member of our firm.

Types of Medical Malpractice

Medical malpractice occurs when a trusted medical professional that has a professional relationship with a patient does not live up to the standard of acceptable care and harms a patient. It is then the responsibility of the patient to prove that their doctor or nurse failed to abide by a standard duty of care and financial damages can be linked to the error.

Types of medical malpractice include the following:

• Delayed diagnosis
• Failure to treat
• Incorrect prescription medication
• Misdiagnosis of a condition
• Surgical errors
• Wrongful death

The Statute of Limitations for Medical Malpractice in West Virginia

Medical malpractice claims in West Virginia are governed by a distinct set of statutes and procedural rules designed to balance a patient’s right to compensation for injuries caused by medical negligence with the need to ensure fairness and efficiency within the healthcare system. The process of pursuing a claim for medical negligence is complex, often involving detailed investigations into highly technical medical events and adherence to strict legal timelines.

The primary hurdle for any potential claimant is the statute of limitations, which dictates the strict period within which a lawsuit must be filed. Failure to meet this deadline irrevocably bars a claim, regardless of the severity of the injury or the clarity of the negligence. Beyond the limitation period, potential claimants must also understand critical procedural requirements, such as the pre-suit notice mandate, and substantive limits on recovery, most notably the cap on non-economic damages.

The Two-Year Statute of Limitations

In West Virginia, the standard time limit for initiating a medical malpractice action is codified as a two-year statute of limitations. This rule is fundamental to the structure of medical negligence litigation in the state.

The statute specifies that a civil action against a healthcare provider must be filed within two years. The measurement of this two-year period, however, is not always straightforward. The law provides two distinct starting points, or accrual dates, for the limitation period: the date the injury occurred or the date the injury was discovered, or reasonably should have been discovered.

The dual nature of this rule ensures that patients who suffer from injuries that are not immediately apparent have a fair opportunity to seek legal recourse. However, determining the precise date of accrual is frequently the first and most vigorously contested issue in a medical malpractice lawsuit, as the viability of the entire case hinges on it.

The Discovery Rule: When the Clock Starts Ticking

The two-year timeline typically begins on the date the injury occurred. However, West Virginia law recognizes the “discovery rule,” which is especially pertinent in medical negligence cases where the effects of the wrongful act may not be immediately obvious.

The discovery rule dictates that the statute of limitations begins to run only when the injured party first knows, or by the exercise of reasonable diligence, should know, of three essential facts: (1) that they have been injured, (2) the identity of the person who inflicted the injury, and (3) that the injury was caused by the lack of care or attention of the healthcare provider.

The application of the discovery rule shifts the focus from the date the negligence was inflicted to the date the patient was put on notice of the potential claim. For instance, if a surgical instrument is unintentionally left inside a patient during a procedure, and the patient does not experience symptoms or become aware of the object for three years, the two-year limitation period would typically begin on the date the object was discovered, not the date of the original surgery.

It is vital to understand that the clock begins to run when the plaintiff should have known of the injury, not just when they actually knew. This objective standard requires the claimant to demonstrate that they exercised reasonable diligence in monitoring their health and investigating any unusual symptoms or complications following medical care.

The Statute of Repose: The Absolute Time Limit

While the discovery rule offers flexibility for latent injuries, West Virginia law imposes an absolute time bar, known as the statute of repose. This provision is designed to provide finality and security for healthcare providers by setting a definitive endpoint for potential liability.

Under the West Virginia framework, regardless of when the injury was discovered, a medical malpractice action generally cannot be commenced more than ten years after the date the alleged negligent act or omission occurred. This is a critical distinction from the statute of limitations. The statute of repose operates as an outside cap, entirely separate from the two-year period.

For example, if an act of medical negligence occurred on January 1, 2020, and the injury resulting from that act was not and could not have been discovered until January 1, 2031, the claim would be barred by the ten-year statute of repose, even though the two-year statute of limitations (under the discovery rule) had not yet started. The law permits no exceptions to this ten-year limit based on the date of discovery. This absolute bar is a significant consideration for any claim involving long-latency injuries.

Exceptions and Tolling Provisions

Despite the strict time limits, West Virginia law includes specific conditions under which the running of the statute of limitations may be temporarily paused, or “tolled.” These provisions address situations where a potential claimant is unable to assert their rights due to factors outside their control.

One significant tolling provision applies to minors. If the injured party is under the age of eighteen at the time of the negligent act, the statute of limitations generally does not begin to run until the minor reaches the age of majority. This ensures that children have sufficient time, once they become adults, to pursue claims for injuries sustained early in life.

Tolling can also occur if the injured party is determined to be mentally incapacitated, rendering them legally unable to comprehend their rights or pursue an action. In such cases, the statute may be tolled until the incapacity is removed. 

Furthermore, the doctrine of continuing treatment may pause the statute’s accrual. If a patient is under the continuous care of the same healthcare provider for the same medical condition related to the alleged negligence, the limitation period may not begin until that course of treatment is concluded. These exceptions, however, are subject to careful judicial scrutiny and interpretation.

Pre-Suit Procedural Requirements and Notice

Before a medical malpractice lawsuit can be officially filed in a West Virginia court, the claimant is required to comply with mandatory pre-suit notice requirements. This is a procedural step that adds complexity and time to the initial phases of the litigation process.

The law requires that the claimant serve a Notice of Claim on the healthcare provider(s) at least thirty days before the complaint is filed. This notice must provide sufficient detail regarding the injury, the negligent acts alleged, and the names of the professionals involved. This requirement is intended to encourage early resolution and to provide the healthcare provider with ample opportunity to investigate the claim before formal litigation commences.

The Certificate of Merit

In addition to the Notice of Claim, a medical malpractice claimant must also secure and serve a “Certificate of Merit.” This is perhaps the most demanding procedural requirement under West Virginia law. The Certificate of Merit must be executed by a similarly situated healthcare provider—a professional qualified to render an opinion regarding the standard of care in the relevant field.

This certificate must confirm that the medical reviewer has evaluated the facts of the case and concluded that there is a reasonable basis to believe that the healthcare provider deviated from the accepted standard of care and that this deviation resulted in injury to the patient.

The requirement for a Certificate of Merit necessitates a thorough, early investigation of the case, including the procurement of all relevant medical records and a review by a qualified professional. This step ensures that only cases deemed medically sound, after preliminary review, proceed to the formal litigation stage.

Limitations on Recoverable Damages

West Virginia law places restrictions on the amount of damages a successful claimant can recover, particularly concerning non-economic damages. Non-economic damages are intended to compensate the injured party for intangible losses.

The law specifies that the total amount of non-economic damages—those losses that do not have a direct monetary value—is capped at $500,000. These damages include, but are not limited to, pain and suffering, loss of enjoyment of life, and emotional distress. This cap is subject to adjustment for inflation over time, but it remains a fundamental limitation on recovery in the state.

It is important to note that this cap does not apply to economic damages. Economic damages, such as past and future medical expenses, lost wages, and loss of earning capacity, are fully recoverable and are not subject to a statutory limit. The distinction between these two categories of damages is critical in determining the overall financial outcome of a medical negligence case. Upon litigating the case, the injured party or their family can recover up to $500,000 for non-economic damages, such as pain and suffering, loss of enjoyment, and emotional distress.

Accountability of Negligent Medical Professionals

The purpose of medical malpractice litigation extends beyond simply recovering financial compensation for the injured party; it also serves the important public policy function of holding negligent medical professionals accountable for their actions.

Due to the fundamental trust placed in medical professionals, patients often do not immediately recognize that an adverse outcome is the result of substandard care. Whether the malpractice is not caught at the time, or doctors and nurses hope to avoid a penalty, patients often do not recognize that something is wrong until another problem arises.

Since medical professionals inspire trust, patients expect that they will leave a doctor’s office or hospital in better condition than they arrived. When this expectation is violated by a lack of attention or a failure to adhere to the standard of care, litigation provides a mechanism for justice.

The Importance of Thorough Case Analysis

Medical malpractice cases require significant time, resources, and dedication to prepare and bring to litigation. When someone has their life fundamentally changed or ended by a negligent medical professional, the person at fault should be held accountable. Recovering financial damages is essential for allowing clients to access the necessary long-term care, replace lost income, and generally get their lives back on track.

Attorneys dedicated to medical negligence claims closely examine each client’s case from every angle to fully understand the circumstances surrounding the injury or untimely death to secure justice. This involves a comprehensive review of all records, consultation with medical reviewers, and a precise application of the complex West Virginia procedural laws.

The Role of Legal Consultation

A legal firm committed to representing clients in medical malpractice matters approaches litigation with a profound depth of collective legal insight. This approach allows them to anticipate the consequences of various legal actions and reactions from opposing parties. With this comprehensive understanding, legal strategies are crafted that can provide clients with the most advantageous possible outcomes for their particular circumstances.

If the medical professional providing care and attention to you or a loved one resulted in unnecessary complications, injury, or even death, you are entitled to discuss your legal options. Speaking with a medical malpractice lawyer in Charleston, WV, can help determine the potential recovery and the procedural steps necessary to advance a claim. Firms are ready to learn more about a potential case and discuss the legal pathways available to help claimants seek compensation.

Contact Seasoned Charleston, WV Medical Malpractice Lawyers

At Pence Law Firm PLLC, our Charleston, WV medical malpractice attorneys utilize over 115 years of combined experience to anticipate the consequences of legal actions. With this in-depth understanding, we craft solutions that can provide our clients with the best possible outcomes for their circumstances.

If the medical professional providing care and attention to you or a loved one resulted in unnecessary complications, injury, or even death, you are entitled to discuss your options. We are ready to learn more about a potential case and discuss how we can help.