West Virginia Malpractice Laws | West Virginia Medical Malpractice
Limits on Malpractice Damages
West Virginia limits non economic damages in medical malpractice cases to $250,000.00, or $500,00.00 in cases involving wrongful death or permanent disability. The caps are increased for inflation that started in 2004 and continues up by year. Physicians must carry liability insurance in an amount not less than $1 million in order to qualify for the caps.
Collateral Source Rule
Under a traditional collateral source rule a defendant may not seek to reduce its liability by introducing evidence that the plaintiff has received compensation from other sources. Such as the plaintiff’s own insurance coverage. For medical malpractice cases in West Virginia a defendant who has been found liable to the plaintiff for damages for medical care, rehabilitation services, lost earnings or other economical losses may present to the court after the trier of fact has rendered a verdict, but before entry of judgment, evidence of payments the plaintiff has received for the same injury from collateral sources for purposes of obtaining an offset from the judgment.
Rules for Expert Witnesses
Expert witnesses must be currently trained and licensed to practice in the same or similar specialty as the defendant and must devote at least 60% of their time to clinical practice or teaching at an accredited university.
Joint and Several Liability
Under a traditional rule of joint and several liability where more than one defendant is found liable for the injury suffered by a plaintiff each defendant is individually liable for the entire amount of the judgment. Such that if one defendant is unable to pay the other defendant or defendants are liable for the entire amount of the judgment. West Virginia has abolished this rule, such that each defendant is liable for damages only in an amount proportionate to that defendants fault for the plaintiff’s injury.
Statute of Limitations
Medical malpractice actions must be commenced within 2 years from the date the injury occurred or within two years from the date the injury was, or reasonably should have been detected. Under West Virginia law minors may bring an action for malpractice within two years of the date of injury or until age twelve whichever period is longer.
Limits on Attorney Fees
West Virginia does not impose special limits on attorney fees in medical malpractice cases.
*At least thirty days before a complaint is filed the plaintiff must file notice of intent to sue with a certificate of merit for each defendant named in the complaint. A certificate of merit must state the experts familiarity with the standards of practice, the experts qualifications and the experts opinion in relation to the defendants alleged breach of the standard of care.
*West Virginia mandates periodic payments of future damages in excess of $100,000.00.