What to Expect During a Medical Malpractice Lawsuit in West Virginia

Facing the aftermath of a medical procedure that resulted in unexpected harm or injury can be an incredibly distressing experience. Beyond the physical and emotional turmoil, the thought of navigating a legal proceeding, such as a medical malpractice lawsuit or medical negligence claim, can seem overwhelming.

Defining Medical Malpractice Under West Virginia Law

Before delving into the lawsuit process, it’s essential to grasp what constitutes medical malpractice, sometimes referred to as clinical negligence or physician error, under the legal framework of West Virginia. It’s more than just an undesirable medical outcome; it involves specific elements that must be proven.

What Constitutes Medical Malpractice?

In West Virginia, a medical malpractice claim arises when a healthcare provider (which can include doctors, surgeons, nurses, hospitals, clinics, or other medical professionals and entities) deviates from the recognized and accepted standard of care in their profession, and this breach of medical duty directly causes injury or harm to a patient. To successfully pursue such a cause of action, the injured party (the plaintiff or claimant) generally needs to establish four core elements by a preponderance of the evidence (meaning it is more likely than not):

1. Duty: A provider-patient relationship existed, creating a legal duty of care for the healthcare provider to deliver competent medical services. This is often straightforward to establish through medical records indicating treatment was sought and provided.
2. Breach: The healthcare provider violated or breached that duty of care by failing to act as a reasonably prudent and skilled provider in the same or similar field would have under similar circumstances. This often involves proving a deviation from accepted medical practice.
3. Causation: This critical link, often termed the proximate cause, requires showing that the provider’s breach of the standard of care was a direct and foreseeable cause of the patient’s injury, worsened condition, or damages. It’s not enough that a mistake was made; that mistake must have led to the negative outcome.
4. Damages: The patient suffered actual, compensable harm as a result of the breach of duty. These damages can be physical (e.g., physical impairment, disfigurement), emotional (e.g., psychological trauma, emotional distress), and/or financial (e.g., additional medical bills, lost income).

Common Scenarios that May Constitute Medical Malpractice or Negligence

While every case turns on its specific facts, some illustrative examples of situations that might give rise to a medical negligence claim if the elements above are met include:

• Significant diagnostic errors, such as a misdiagnosis, failure to diagnose, or delayed diagnosis of a serious condition like cancer or heart disease.
• Surgical errors, including operating on the wrong body part, leaving surgical instruments inside a patient (retained surgical object), or causing unnecessary surgical complications due to substandard medical care.
• Birth injuries or birth trauma resulting from obstetric negligence during labor or delivery, potentially leading to conditions like cerebral palsy or Erb’s palsy.
• Medication errors, such as prescribing the wrong drug, an incorrect dosage (prescription error), or administering a medication to which the patient has a known allergy, leading to an adverse drug event.
• Anesthesia errors that result in patient harm, including anesthesia awareness or oxygen deprivation.
• Failure to treat or provide appropriate follow-up care.
• Hospital-acquired infections linked to negligent sanitation or procedures.
• Lack of informed consent, where a provider fails to adequately explain the risks of a procedure, and the patient suffers a known risk they were not informed about.

Distinguishing Harm from Negligence

It is vital to understand that not all unfavorable medical outcomes or poor medical outcomes constitute medical malpractice. Medicine is not an exact science, and complications can arise even when the best possible care is provided. The law requires demonstrating a specific departure from good and accepted medical practice that caused the detriment suffered.

Initial Considerations & Mandatory Pre-Lawsuit Steps in West Virginia

If you suspect medical malpractice, acting promptly and understanding West Virginia’s specific pre-lawsuit requirements is paramount. Failure to adhere to these rules can jeopardize your ability to pursue a legal remedy.

The Importance of Timeliness: Statutes of Limitation & Repose

West Virginia law sets strict deadlines, known as statutes of limitation, for filing a medical malpractice lawsuit. Missing these deadlines generally means losing the right to sue, regardless of the merits of your claim.

• General Statute of Limitations (WV Code §55-7B-4): Typically, a medical malpractice action must be “commenced within two years of the date of such injury, or within two years of the date when such person discovers, or with the exercise of reasonable diligence, should have discovered such injury, whichever last occurs.”¹ This is often referred to as the discovery rule.
• Specific Statute for Nursing Homes, etc. (WV Code §55-7B-4(b)): For claims against a nursing home, an assisted living facility, or a distinct part of an acute care hospital providing intermediate or skilled nursing care (or their employees), the time limit to sue is shorter: “one year of the date of such injury, or within one year of the date when such person discovers, or with the exercise of reasonable diligence, should² have discovered such injury…”³
• Provisions for Minors: If the injured patient was a child under the age of ten at the time of the medical injury, the action must be commenced within two years of the date of injury or prior to the child’s twelfth birthday, whichever period is longer.
• Statute of Repose (WV Code §55-7B-4(d)): Importantly, West Virginia has a statute of repose. This law states that “in no event shall any such action be commenced more than ten years after the date of the medical injury,”⁴ with very limited exceptions. This is an absolute filing deadline regardless of when the injury was discovered.

These tolling provisions and deadlines highlight why seeking legal counsel promptly is so important.

Pre-Suit Notice of Claim (WV Code §55-7B-6)

Before a medical malpractice lawsuit can be formally filed in court, West Virginia Code §55-7B-6 mandates that the claimant (the injured party or their representative) must provide a “Notice of Claim” to each healthcare provider they intend to sue. This notice must be served by certified mail, return receipt requested, at least thirty (30) days prior to filing the complaint. The Notice of Claim must include:

• A statement of the theory or theories of liability upon which the cause of action may be based (i.e., how the provider was allegedly negligent).
• A list of all healthcare providers and healthcare facilities to whom notices of claim are being sent.

The Screening Certificate of Merit (WV Code §55-7B-6)

Accompanying the Notice of Claim must be a “Screening Certificate of Merit.” This is a critical document in West Virginia medical professional liability cases.

• Purpose: The certificate serves to demonstrate to the court and the defendants that the claim has been reviewed by a qualified healthcare provider and is believed to have merit, helping to filter out frivolous lawsuits.
• Requirements for the Certifying Healthcare Provider: The certificate must be executed under oath by a healthcare provider who:
  • Is qualified as an expert under the West Virginia Rules of Evidence.
  • Meets specific requirements regarding licensure and active clinical practice or teaching in their medical field or specialty (generally, devoting at least 60% of their professional time to such activities at the time of the alleged injury).
  • Is familiar with the applicable standard of care at issue.
• Content of the Certificate: The Screening Certificate of Merit must state with particularity:
  • The certifying provider’s qualifications.
  • The basis for their familiarity with the applicable standard of care.
  • Their opinion as to how the applicable standard of care was breached.
  • Their opinion as to how the breach resulted in injury or death to the claimant.
  • A list of all medical records and other information reviewed by the certifying provider.

Obtaining a proper Screening Certificate of Merit is a complex step that often requires the assistance of legal counsel experienced in these medical mistake cases.

Seeking Legal Counsel

Given the intricate legal and medical issues involved in substandard medical care claims, and the strict procedural requirements like the Notice of Claim and Certificate of Merit, discussing your situation with legal counsel familiar with West Virginia’s medical malpractice laws early in the process is highly advisable. An attorney can help evaluate your potential claim, ensure deadlines are met, and guide you through these initial hurdles.

The Formal Lawsuit: Filing and the Discovery Phase

Once the pre-suit requirements have been met, if a decision is made to proceed, the formal legal action begins. This phase is characterized by formal pleadings and an intensive information-gathering period known as discovery.

Commencing the Lawsuit: The Complaint

The lawsuit officially starts when the plaintiff files a “Complaint” with the appropriate Circuit Court in West Virginia. The Complaint is a formal legal document that:

• Identifies the plaintiff(s) and defendant(s) (the healthcare providers or facilities being sued).
• Outlines the factual allegations forming the basis of the medical malpractice claim.
• States the legal theories of liability (e.g., negligence, breach of the standard of care).
• Describes the injuries and damages suffered.
• Requests relief from the court (typically monetary damages).

The defendant(s) must then be formally served with a copy of the Complaint and a Summons.

The Defendant’s Response: The Answer

After being served, each defendant has a specified period (usually 30 days in West Virginia Circuit Court) to file an “Answer” to the Complaint. In the Answer, the defendant will typically:

• Admit or deny each allegation made in the Complaint.
• Assert any affirmative defenses they may have (e.g., statute of limitations, comparative negligence of the plaintiff, if applicable).

Uncovering the Facts: The Discovery Process

“Discovery” is the formal pre-trial phase where both sides gather evidence and information relevant to the case. This is often the longest and most labor-intensive part of the litigation process. The West Virginia Rules of Civil Procedure govern discovery. Key discovery tools include:

1. Interrogatories: These are written questions sent by one party to another, which must be answered in writing under oath. They often seek factual information about the claim, defenses, witnesses, and damages.
2. Requests for Production of Documents: Parties can formally request relevant documentation from each other. This includes, critically, the complete medical records of the patient, billing statements, hospital policies and procedures, correspondence, diagnostic imaging (X-rays, MRIs, CT scans), lab results, and any other pertinent physical evidence.
3. Depositions: A deposition is sworn out-of-court testimony given by a party or a witness (including fact witnesses and healthcare professionals involved in the patient’s care or those retained to provide opinions in the legal proceeding). Attorneys for all parties are present to ask questions, and the testimony is recorded by a court reporter, creating a transcript. Depositions help assess witness credibility and lock in testimony for potential use at trial.
4. Requests for Admission: One party can ask another to admit or deny certain facts, helping to narrow the issues in dispute.
5. Independent Medical Examinations (IMEs): In some cases, the defense may request that the plaintiff undergo an examination by a physician of their choosing.

The discovery phase allows both sides to understand the strengths and weaknesses of their case and the opponent’s case. It involves a thorough review of medical records, consultation with individuals who can provide medical opinions, and strategic planning. The role of individuals offering medical opinions on the standard of care, causation, and the extent of damages is pivotal during discovery and for any potential trial.

Pathways to Resolution – Negotiation, Mediation, and Trial

Not all medical malpractice lawsuits proceed to a full trial. Many are resolved through negotiation, settlement, or alternative dispute resolution methods like mediation.

Settlement Discussions

Settlement discussions can occur at almost any point during the litigation process, from before the lawsuit is filed until even during or after a trial. A settlement is a voluntary agreement between the parties to resolve the claim for an agreed-upon sum of money or other terms, thereby avoiding the uncertainty and expense of a trial. Factors influencing settlement include the perceived strength of the evidence, the severity of the injuries, the potential costs of continued litigation, and the willingness of both sides to compromise. The insurance company for the healthcare provider is typically heavily involved in settlement negotiations.

Mediation in West Virginia

Mediation is a common form of Alternative Dispute Resolution (ADR) in West Virginia medical malpractice cases.

• Process: It involves a neutral third-party mediator (often an experienced attorney or retired judge) who facilitates confidential discussions between the parties to help them reach a mutually agreeable settlement. The mediator does not impose a decision but rather helps the parties explore options and find common ground.
• Pre-Suit Mediation: As mentioned earlier (WV Code §55-7B-6(g), (h)), a healthcare provider who receives a Notice of Claim can demand mediation before a lawsuit is filed. If demanded, this mediation must be concluded within 45 days of the written demand.
• Benefits: Mediation can be a less costly, quicker, and less adversarial way to resolve a legal dispute than going to trial. It allows the parties to have more control over the outcome.

Proceeding to Trial

If settlement negotiations and mediation are unsuccessful, the case will proceed to trial. A medical malpractice trial is a formal court proceeding where both sides present their evidence and arguments to a judge and, typically, a jury.

• Key Trial Stages:
  1. Jury Selection (Voir Dire): Attorneys for both sides question potential jurors to select an impartial panel.
  2. Opening Statements: Each attorney presents an overview of their case and what they intend to prove.
  3. Presentation of Evidence:
     • The plaintiff presents their case-in-chief first, calling witnesses (including the injured party, family members, fact witnesses, and individuals offering medical opinions regarding the standard of care, breach, and causation) and submitting exhibits (like medical records and demonstrative evidence). Witnesses undergo direct examination by the attorney who called them and cross-examination by the opposing attorney.
     • The defendant then presents their defense, which may include their own witnesses (including the defendant provider(s) and individuals offering contrary medical opinions) and evidence.
  4. Closing Arguments: Attorneys summarize their evidence and argue why the jury should rule in their favor.
  5. Jury Instructions: The judge provides the jury with instructions on the applicable law they must follow in their deliberations.
  6. Jury Deliberation and Verdict: The jury retires to deliberate in private and then returns a verdict, deciding whether the defendant(s) were negligent and, if so, the amount of damages to award.
• The Burden of Proof: Throughout the trial, the plaintiff bears the burden of proof to establish each element of their medical malpractice claim by a “preponderance of the evidence.”

Trials can be lengthy, complex, and emotionally taxing for all involved.

The Conclusion of the Lawsuit and What Follows

Reaching the end of a medical malpractice lawsuit can bring a sense of relief, but there may still be further steps or considerations.

Receiving a Judgment or Settlement

• Settlement: If a settlement agreement is reached, it will involve signing legal documents (e.g., a release) and the agreed-upon compensation will be paid, often by the healthcare provider’s medical liability insurance carrier. The structure of the payout (lump sum or structured settlement over time) will be part of the agreement.
• Judgment: If the case goes to trial and a verdict is rendered in favor of the plaintiff, the court will enter a judgment for the amount of damages awarded by the jury (subject to any applicable caps or reductions). Collecting a judgment can sometimes involve further legal steps if the defendant or their insurer does not pay voluntarily.

The Possibility of Appeals

If either the plaintiff or the defendant believes that significant legal errors occurred during the trial that unfairly affected the outcome, they may have the right to appeal the verdict or judgment to a higher court, such as the West Virginia Supreme Court of Appeals. An appeal is not a new trial; rather, the appellate court reviews the record of the trial court proceedings to determine if reversible errors of law were made. Appeals can add considerable time and expense to the overall litigation process.

Emotional and Time Considerations

It cannot be overstated that pursuing a medical malpractice claim is often a lengthy and emotionally draining legal contest. These cases can take years to resolve, from the initial investigation through discovery, negotiations, and potentially trial and appeals. The process can be stressful for plaintiffs and their families, who are often already dealing with the consequences of a serious medical injury or loss. Patience and realistic expectations regarding the timeline are important.

The Importance of Experienced Legal Guidance

Navigating the complexities of West Virginia medical malpractice law, with its specific procedural rules, evidentiary standards, and damage caps, requires considerable legal acumen. Throughout this challenging journey, the guidance of legal counsel who is skilled in handling these types of complex litigation matters can be invaluable in protecting your rights and presenting your case effectively.

Contact Bailey, Javins, & Carter, L.C. for Medical Malpractice Claims in West Virginia

The attorneys at Bailey, Javins, & Carter, L.C. have a long history of handling complex litigation matters for individuals and families in West Virginia. We understand that dealing with the consequences of a potential medical error is incredibly difficult, and the legal system can appear formidable.

If you have questions about a potential medical malpractice situation and what to expect from the legal process in West Virginia, we invite you to contact us for a free consultation and case assessment to discuss your specific circumstances.