Charleston | (304) 345-0346
Morgantown | (304) 599-1112
Charleston | (304) 345-0346
Morgantown | (304) 599-1112
Charleston | (304) 345-0346
Charleston | (304) 345-0346
Morgantown | (304) 599-1112
Children are at their most vulnerable in the womb and immediately after birth. It is vital that medical professionals, whether obstetricians or ER doctors, follow accepted medical standards and procedures when caring for a mother, fetus or baby. We place a lot of trust in health professionals who care for us and our children, and when a preborn or infant does not receive the proper level of care, the child could have serious birth defects that will affect the rest of his or her life.
At Bailey, Javins & Carter, L.C., we understand how difficult it can be to see your child suffer an injury or birth defect, especially if it could have been prevented. Our attorneys will stand by your side and provide you with the advice, support and advocacy you need while bringing a medical malpractice lawsuit. For more than five decades, we have stood up for injury victims in West Virginia, and we have a successful track record with even the most complex cases. Contact our firm for a free consultation about your case.
Approximately five out of every 1,000 babies born in the United States sustain some form of birth injury. While some of these injuries may be minor and heal quickly, others can lead to long-term disabilities and severe complications. In many cases, birth injuries can be prevented with proper medical care and attention. However, when medical professionals fail to exercise due diligence, the consequences can be life-altering for both the newborn and their family.
Birth injuries in West Virginia can occur due to a variety of factors, including:
Understanding the different types of preventable birth injuries in West Virginia can help parents recognize signs of medical malpractice and seek the justice and compensation they deserve.
The brachial plexus is a network of nerves that control movement and sensation in the shoulders, arms, and hands. Damage to this nerve cluster can result in conditions such as Erb’s palsy and shoulder dystocia, which can cause partial or complete paralysis in the affected limb.
Causes:
Symptoms:
Cerebral palsy is a neurological disorder affecting muscle control, coordination, and posture. It is often caused by brain damage due to oxygen deprivation (hypoxia) during childbirth.
Causes:
Symptoms:
A lack of oxygen to the brain (hypoxic-ischemic encephalopathy) can cause severe cognitive and physical disabilities, including intellectual impairments, learning disabilities, and motor dysfunctions.
Causes:
Symptoms:
Spinal cord injuries can occur during a difficult delivery if excessive force is applied, leading to nerve damage and potential paralysis.
Causes:
Symptoms:
Fractures, particularly clavicle fractures, can occur when excessive force is used during birth.
Causes:
Symptoms:
A poorly executed C-section can lead to serious injuries such as skull fractures, brain damage, and facial nerve injuries.
Causes:
Symptoms:
A birth injury is not always immediately noticeable. Hospitals may be reluctant to acknowledge errors, so parents should be aware of warning signs, including:
The birth of a child should be a joyous occasion, but when medical negligence results in a preventable birth injury, the consequences can be devastating for both the newborn and their family. Birth injuries caused by errors during labor and delivery can lead to lifelong complications, including physical and cognitive impairments. Families facing such challenges may seek legal recourse to secure compensation for medical expenses, emotional suffering, and other related damages. Understanding the legal options available can help parents take the necessary steps to ensure their child receives the care and support they need.
To pursue a birth injury claim, it must be established that medical negligence occurred. This typically involves proving that the healthcare provider—whether a doctor, nurse, or hospital staff—failed to meet the accepted standard of care. Common examples of medical negligence in birth injury cases include:
Medical malpractice claims require strong evidence, including medical records, expert testimony, and documentation of the injury’s impact on the child’s life. A skilled birth injury attorney can help gather and present this evidence effectively.
When a birth injury occurs due to medical negligence, the affected family may seek various types of damages to cover financial, emotional, and punitive losses.
Economic damages aim to compensate for tangible financial losses resulting from the injury. These may include:
These damages compensate for the emotional and psychological toll the injury has on the child and family, including:
In cases where medical professionals acted with extreme negligence or recklessness, the court may award punitive damages. These damages are intended to punish the responsible party and deter similar misconduct in the future. While punitive damages are not awarded in every case, they serve as a means of holding medical providers accountable for gross negligence.
Medical negligence, commonly referred to as medical malpractice, occurs when a healthcare professional deviates from the accepted standard of care, resulting in harm to a patient. In West Virginia, medical negligence is defined and governed by specific statutes and legal precedents that outline the responsibilities of healthcare providers and the rights of patients.
Under West Virginia law, medical negligence is established when a healthcare provider fails to exercise the level of care, skill, and learning expected of a reasonably prudent healthcare provider in the same or similar circumstances. This deviation must directly result in injury or death to the patient. The key elements to establish a medical negligence claim in West Virginia include:
In West Virginia, patients must file a medical malpractice lawsuit within two years from the date the injury was discovered or reasonably should have been discovered. However, all claims must be filed within ten years of the date of the alleged malpractice, regardless of when the injury was discovered.
Before initiating a medical malpractice lawsuit in West Virginia, plaintiffs are required to serve a notice of claim on each prospective defendant at least 30 days prior to filing the suit. This notice must include a screening certificate of merit executed under oath by a qualified healthcare provider, stating that the standard of care was breached and that this breach resulted in injury. There are exceptions to this requirement, such as cases involving foreign objects left in the body or other scenarios where negligence is evident.
West Virginia imposes caps on non-economic damages in medical malpractice cases, as outlined in §55-7B-8 of the West Virginia Code. Non-economic damages refer to compensation for pain, suffering, inconvenience, physical impairment, disfigurement, and other nonpecuniary injuries. The cap is set at $500,000 for cases involving:
For other medical malpractice cases not involving the above conditions, the cap on non-economic damages is $250,000. These caps are adjusted annually for inflation, so the exact dollar amounts may vary slightly over time.
It’s important to note that these caps apply only to non-economic damages; there is no cap on economic damages, which cover quantifiable losses such as medical expenses and lost wages.
West Virginia law requires that expert testimony be presented to establish the standard of care and to demonstrate how the defendant’s actions deviated from that standard. The expert must be qualified in the same or a substantially similar field as the defendant and must be familiar with the standard of care applicable to the case.
West Virginia follows the doctrine of modified comparative fault. This means that if a patient is found to be partially at fault for their injury, their compensation will be reduced by their percentage of fault. However, if the patient’s fault is determined to be 50% or more, they are barred from recovering any damages.
In cases involving multiple defendants, West Virginia employs a modified joint and several liability rule. A defendant found to be 30% or less at fault is only responsible for their proportionate share of the damages. However, if a defendant’s fault exceeds 30%, they can be held jointly and severally liable, meaning they may be responsible for the entire amount of damages, regardless of their individual share of fault.
At Bailey, Javins & Carter, L.C., we understand how devastating it is to watch your child suffer from an injury or birth defect—especially when it could have been prevented due to medical negligence. The emotional, physical, and financial toll on families in these situations can be overwhelming, and you deserve justice and compensation for the harm caused.
Our team of dedicated birth injury lawyers in WV are here to guide you through the complex legal process of filing a medical malpractice lawsuit. We will stand by your side every step of the way, providing expert legal advice, compassionate support, and aggressive advocacy to help you hold negligent medical professionals accountable. Whether your case involves a birth injury, misdiagnosis, surgical error, or any other form of medical negligence, we have the experience and resources to build a strong case on your behalf.
For more than five decades, Bailey, Javins & Carter, L.C. has been a trusted advocate for birth injury victims throughout West Virginia. We have successfully handled some of the most challenging medical malpractice cases, securing favorable outcomes for our clients. Our firm has a deep understanding of West Virginia’s medical malpractice laws, and we know how to fight for the maximum compensation available for medical expenses, pain and suffering, long-term care, and other damages.
If your child has suffered due to medical negligence, you don’t have to face this battle alone. Let us help you seek the justice you deserve. Contact our firm today for a free consultation to discuss your case and learn about your legal options.
A birth injury constitutes actionable medical professional liability if physical harm is suffered by a newborn baby before, during, or shortly after the delivery. These injuries often result from professional negligence, such as oxygen deprivation, improper forceps use, delayed emergency cesareans, or failure to monitor fetal distress, causing permanent neurological or physical infant brain damage.
Medical malpractice lawsuits on behalf of injured children under age 10 must be commenced within two years of the injury or prior to the twelfth birthday, whichever provides more time. If healthcare negligence causes a tragic wrongful death, a lawsuit must be filed within two years of the child’s passing.
The West Virginia Medical Professional Liability Act is a comprehensive set of statutes regulating state medical malpractice claims. This legislation establishes extremely strict procedural requirements, short filing deadlines, and specific limits on financial recovery. It governs how lawsuits against healthcare providers, including obstetricians, must be initiated, structured, and resolved within our state court system.
There are no limits on economic damages, allowing parents to recover full compensation for all actual financial losses, such as lifelong medical care. However, non-economic damages, like pain and suffering, are capped. The base statutory limit is five hundred thousand dollars for catastrophic injuries, which adjusts annually for inflation up to a maximum legislative ceiling.
A Screening Certificate of Merit is a mandatory document required prior to filing any malpractice lawsuit. This certified statement must be executed under oath by a qualified, independent medical expert practicing in a similar specialty, confirming that they reviewed the relevant medical records and that the care provided breached the accepted professional medical standard of care.
Yes, parents can sue both individual medical professionals and the delivering hospital. While hospitals face vicarious liability for employed staff, mandates that liability among defendants is generally several, meaning each party pays damages in proportion to their fault. Independent doctors may also be sued alongside the hospital for negligent credentialing or institutional safety oversight failure protocols.
A birth defect is a structural or functional abnormality usually caused by genetic factors, environmental influences, or prenatal conditions that develop during pregnancy. In contrast, a birth injury is physical harm or trauma that occurs during the labor and delivery process itself. Birth injuries are frequently preventable and often caused by the negligence or mistakes of attending healthcare medical professionals.
Families can recover uncapped economic damages for future specialized medical care, life therapies, and lost earning capacity, alongside capped noneconomic damages for physical pain and suffering. Additionally, if healthcare providers acted with extreme malice or conscious disregard, punitive damages may be successfully awarded to the affected family.
Plaintiffs must prove two primary legal elements using qualified medical expert testimony. First, you must establish that the healthcare provider failed to exercise the standard of care, skill, and learning expected of a reasonable provider. Second, you must prove that this specific failure was a proximate cause of the child’s permanent birth injury.
A Life Care Plan is a comprehensive document that projects the lifetime financial needs of an injured child. Compiled by medical, therapeutic, and economic experts, it outlines costs for future surgeries, ongoing therapies, specialized medication, home modifications, and assistive technology. This plan is crucial in West Virginia courts to justify the significant uncapped economic damages needed for proper lifetime care.
Yes, under West Virginia common law, parents can seek compensation for negligent infliction of their own emotional distress if they witnessed the birth trauma. However, because emotional distress constitutes a non-economic loss, these damages are strictly subject to the state’s statutory limits.
West Virginia has a modified comparative negligence system. If a court determines parents contributed to the harm, any awarded damages are reduced proportionately by their percentage of fault. However, if parents are found to be greater than fifty percent responsible for the birth injury, they are completely barred from recovering any financial compensation under this state code.
Charleston Office
Local: 304-345-0346
Toll Free: 800-497-0234
Morgantown Office
Local: 304-599-1112