What is the statute of limitations for a personal injury case in West Virginia?

When you are involved in an accident in West Virginia, you are probably going to pursue a case against the liable party. If you bring a lawsuit against the person or persons responsible for causing your accident, you may be able to obtain compensation for your hospital bills, rehabilitation services, lost wages, and pain and suffering that are the direct result of your accident.

One of the most important things that you need to know about filing a personal injury case is that you must file within the statutes of limitations that West Virginia has in place for these types of injury-related lawsuits. A statute of limitations means that you must file your case against the responsible party within a certain amount of time. If you do not file your lawsuit within this time frame, you will not be able to bring a case against them and therefore, you will not be able to collect compensation because you missed the deadline. In West Virginia, the statutes of limitations is two years from the date that your accident occurred.

If you fail to bring your action before the statute of limitations expires, your case will most likely be thrown out of court and you will lose out on any damages that you may have been entitled to.

Why Do States Have Statutes of Limitations?

The main reason for states to establish a statute of limitations is so that legal actions related to an accident or incident can be dealt with within a reasonable amount of time. It is not good for either the plaintiff or the defendant to let things drag on for too long.

For the plaintiff, the case becomes more difficult to win after too much time elapses, because relevant evidence tends to disappear or at the very least becomes harder to obtain after a number of months or years have passed. For the defendant, it is unjust to have the prospect of a lawsuit hanging over their head for an indefinite period of time. The bottom line is that having a statute of limitations provides a basic level of fairness for both sides.

Statute of Limitations for Civil Cases in West Virginia

Statutes of limitations are set for each type of civil case in West Virginia as follows:

• Personal Injury: Two years from the date that the injury occurred.
• Wrongful Death: Two years from the death of the victim.
• Medical Malpractice: Two years from the date that the malpractice was discovered or should have reasonably been discovered. Medical malpractice cases also have another deadline known as the “statute of repose”, which is usually 10 years from the date of the injury. This is the final deadline that any plaintiff has to file a medical malpractice lawsuit.
• Property Damage Only: Two years from the date that the damage occurred.
• Breach of Contract: Two years from the date that the breach occurred.
• Libel or Slander: One year from the date of the most recent noted incident.
• Workers’ Compensation: Three years from the date that the injury was diagnosed or from the last exposure to a hazardous substance.

There are some exceptions to the statutes of limitations listed above:

• Injuries to Minors: With most personal injuries that involve minors, the statute of limitations is two years from the date that the minor turns 18 (in other words, when the person who suffered the injury turns 20 years old). For example, if a minor was injured at the age of 14, they would have six years during which they could file a lawsuit. The rules are different in medical malpractice and wrongful death cases.
• Delayed Discovery: With the vast majority personal injury cases, there is a discovery rule extension, meaning that the deadline can be extended if the plaintiff did not discover their injuries or losses until after the date of the underlying accident. In cases like these, the clock will normally start on the date in which the plaintiff discovers their injury.
• Tolled Deadline for Criminal Cases: If there is an ongoing criminal case involving the same defendant as the civil case, the courts will normally “toll” (i.e., pause) the statute of limitations until the criminal proceeding is completed.

WV Medical Malpractice Statute of Limitations

In West Virginia, as in all states, there are strict time limits within which a person must file a lawsuit after suffering an injury. These time limits are established by laws known as statutes of limitations. For medical malpractice claims in West Virginia, the relevant statute of limitations is primarily governed by the West Virginia Medical Professional Liability Act, specifically West Virginia Code § 55-7B-4. Understanding this statute is for anyone who believes they may have been harmed by medical negligence, as failing to file a lawsuit within the specified timeframe almost always results in the permanent loss of the right to pursue a claim.

The general rule for filing a medical malpractice lawsuit in West Virginia is that the action must be commenced within two years. However, the starting point for this two-year period is not always straightforward. The statute provides for two potential triggers for the clock to begin running:

Date of Injury

The two-year period can begin on the date the medical injury occurred.

Date of Discovery

Alternatively, the two-year period can begin on the date when the person discovers, or with the exercise of reasonable diligence, should have discovered the injury. This is often referred to as the “discovery rule.”

The discovery rule is particularly important in medical malpractice cases because the harm caused by medical negligence may not be immediately apparent. For instance, a foreign object left inside a patient during surgery, or a misdiagnosis, might not be discovered until months or even years after the initial medical error occurred. The discovery rule is intended to provide a fair opportunity for individuals to pursue a claim when the injury or its connection to medical treatment was not immediately known.

However, the discovery rule is not without its limits. West Virginia law also includes a statute of repose, which sets an absolute outer limit on when a medical malpractice lawsuit can be filed, regardless of when the injury was discovered.

Under West Virginia Code § 55-7B-4(a), in no event shall any such action be commenced more than ten years after the date of the medical injury. This means that even if an injury is not discovered until nine years after the malpractice occurred, the plaintiff would only have one year from the date of discovery to file suit, as the ten-year statute of repose would bar any claim filed after the ten-year mark from the date of the injury. If the injury is discovered eleven years after the malpractice, the claim is barred immediately by the statute of repose.

Factors That Can Affect the Application of the Statute of Limitations of Medical Malpractice Cases in WV

Minors

When the injured party is a minor (under the age of 18), the statute of limitations may be extended. For a medical injury to a minor, the action must generally be commenced within two years of the date of the injury or prior to the minor’s twelfth birthday, whichever provides a longer period. However, the standard adult statute of limitations (two years from injury or discovery, with the ten-year statute of repose) applies once the child reaches the age of majority (18).

Fraudulent Concealment

If a healthcare provider fraudulently concealed or misrepresented material facts about the injury, the statute of limitations may be “tolled,” meaning the clock is stopped from running during the period of concealment. Once the fraud is discovered, the plaintiff would then have the standard time period to file their lawsuit.

Continuous Treatment

In some cases, if the medical negligence occurred during a continuous course of treatment by the same healthcare provider for the same condition, the statute of limitations may not begin to run until the end of that course of treatment. However, this doctrine has specific applications and does not simply apply if a provider continues to treat a patient after an injury has occurred on a specific date.

It is also important to note that West Virginia has a specific, shorter statute of limitations for medical professional liability claims brought against nursing homes, assisted living facilities, and related entities. For claims against these types of facilities, the statute of limitations is typically one year from the date of the injury or the date of discovery, subject to the ten-year statute of repose.

Beyond the statute of limitations, West Virginia law also has pre-suit requirements that must be met before filing a medical malpractice lawsuit. Under West Virginia Code § 55-7B-6, a claimant must provide a “notice of claim” and a “screening certificate of merit” to each healthcare provider being sued at least 30 days before filing the lawsuit. The timely service of these documents can toll (pause) the statute of limitations for a period, allowing the claimant time to file the formal complaint after the pre-suit requirements are met. Strict compliance with these pre-suit requirements is necessary to properly toll the statute of limitations.

To sum things up, the statute of limitations for medical malpractice claims in West Virginia is generally two years from the date of injury or discovery, with an absolute ten-year statute of repose from the date of injury. Exceptions exist for minors and cases involving fraudulent concealment. Claims against nursing homes have a shorter one-year statute of limitations. Given the complexities of determining the exact date the statute of limitations begins to run, the nuances of the discovery rule and statute of repose, and the critical importance of adhering to these deadlines and pre-suit requirements, anyone who suspects they have a medical malpractice claim in West Virginia should consult with an attorney as soon as possible to ensure their rights are protected.

Contact an Established West Virginia Personal Injury Firm

If you or someone close to you got injured because of another party’s negligence or reckless actions, it is important to take prompt legal action in order to ensure that the statute of limitations does not expire. If the injury occurred in West Virginia, contact Bailey, Javins, and Carter L.C. for assistance. To schedule a free consultation with one of our attorneys, message us online or call our office today at (800) 497-0234 or (800) 296-6979.

If you require experienced legal representation for a West Virginia personal injury matter, please contact Bailey Javins & Carter, L.C. to schedule a free consultation.