West Virginia

Statute of Limitations

Medical Claim Generally:

A medical malpractice claim “must be commenced within two years of the date of such injury or death, or within two years of the date when such person discovers, or with the exercise of reasonable diligence, should have discovered such medical injury, whichever last occurs: Provided, That in no event shall any such action be commenced more than 10 years after the date of medical injury.” [West Virginia Code § 55-7B-4]

Minors:

“A cause of action for injury to a minor, brought by or on behalf of a minor who was under the age of 10 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 12th birthday, whichever provides the longer period.” [West Virginia Code § 55-7B-4]

Wrongful death:

A wrongful death action “shall be commenced within two years after the death of such deceased person” [West Virginia Code § 55-7-6]

Damage Caps

In West Virginia, the cap on noneconomic damages in medical malpractice cases is $250,000 per occurrence (adjusted annually, max. $375,000). However, the cap increases to $500,000 (adjusted annually, max $750,000) if the medical malpractice resulted in:

• Wrongful death
• Permanent and substantial physical deformity
• Loss of use of a limb or loss of a bodily organ system
• Permanent physical or mental functional injury that prevents the injured person from being able to independently care for themselves

Attorney Fee   Caps

West Virginia currently has no attorney fee caps other than the general requirement of reasonableness.

Pre-suit 

Requirements

“At least 30 days prior to the filing of a medical professional liability action against a health care provider, the claimant shall serve by certified mail, return receipt requested, a notice of claim on each health care provider the claimant will join in litigation.”  [West Virginia Code § 55-7B-6]

Expert

Qualifications

“The expert witness maintains a current license to practice medicine with the appropriate licensing authority of any state of the United States: Provided, That the expert witness's license has not been revoked or suspended in the past year in any state; and the expert witness is engaged or qualified in a medical field in which the practitioner has experience and/or training in diagnosing or treating injuries or conditions similar to those of the patient. If the witness meets all of these qualifications and devoted, at the time of the medical injury, sixty percent of his or her professional time annually to the active clinical practice in his or her medical field or specialty, or to teaching in his or her medical field or specialty in an accredited university, there shall be a rebuttable presumption that the witness is qualified as an expert.” [West Virginia Code § 55-7B-7]

Negligent

Credentialing Claims

West Virginia does recognize negligent credentialing claims.