West Virginia Medical Malpractice Summary

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Statutes of Limitations

An action for personal injury arising out of medical malpractice accrues on the date of injury and must be commenced within two years of either the date when the injury occurred or the date when the claimant discovered or reasonably should have discovered the injury. W. Va. Code § 55-7B-4 (1994). Nevertheless, no such action may be commenced more than ten years after the date of injury. Id.

A claimant under the age of ten must bring suit within two years of the date of the injury or prior to the claimant’s twelfth birthday, whichever provides the longer period. Id.

Wrongful death actions must be brought within two years from the date of death. W. Va. Code § 55-7-6(d) (1994). This statute governs actions for medical malpractice resulting in death. Miller v. Romero, 186 W. Va. 523, 413 S.E.2d 178 (1991).

Contributory or Comparative Negligence

West Virginia has adopted the doctrine of modified comparative negligence. Bradley v. Appalachian Power Co., 163 W. Va. 332, 256 S.E.2d 879 (1979). Under this doctrine, a claimant’s action is barred if his negligence equals or exceeds the combined negligence of all the other parties to the occurrence. Otherwise, the claimant’s recovery is diminished in proportion to his degree of negligence. Id.

Joint and Several Liability

West Virginia has passed an exception to the rule of joint and several liability applicable only to medical malpractice cases. If a defendant is found to have been responsible for less than 25 percent of all the joint defendants’ negligence, then any judgment rendered in favor of the plaintiff can be executed against that particular defendant for only his pro rata share, determined by his percentage of negligence. A defendant whose negligence is greater than 25 percent of the total is jointly and severally liable for the entire judgment. W. Va. Code § 55-7B-9 (1994).

Contribution

W. Va. Code § 55-7B-9 (1994) allows for contribution between joint tortfeasors against whom a judgment was entered jointly. A joint tortfeasor may implead other joint tortfeasors from whom he wishes to obtain contribution. E.g., Haynes v. City of Nitro, 161 W. Va. 230, 240 S.E.2d 544 (1977). The jury’s findings as to each party’s percentage of negligence are binding on the co-defendants for purposes of determining their rights of contribution. W. Va. Code § 55-7B-9 (1994). In addition, “no right of contribution exists against any defendant who entered into a good faith settlement with the plaintiff prior to the jury’s report of its findings to the court or the court’s findings as to the total dollar amount awarded as to damages.” Id.

Vicarious Liability

The West Virginia Supreme Court of Appeals has held in medical malpractice actions that a hospital may be vicariously liable for the malpractice of its non-employed physicians. The first case so holding, an emergency room case, focused on the claimant’s having been forced to rely on the hospital’s choice of physician to render services. Thomas v. Raleigh General Hospital, 178 W. Va. 138, 358 S.E.2d 222 (1987). Although the most recent decision claims to be based on the theory of ostensible agency, it does not appear to leave any room for a hospital to escape liability by giving clear notice the physicians are not its agents or employees. The court holds that “where a hospital makes emergency room treatment available to serve the public as an integral part of its facilities, the hospital is estopped to deny that the physicians and other medical personnel on duty providing treatment are its agents.” Torrence v. Kusminsky, 185 W. Va. 734, 742, 408 S.E.2d 684, 692 (1991). There are suggestions in Torrence that the court’s reasoning may apply to anesthesiologists, pathologists, and radiologists as well.

Expert Testimony

Ordinarily, if the applicable standard of care and the defendant’s failure to meet that standard are at issue, competent expert testimony is required. To qualify, an expert must, inter alia, be engaged or qualified in the same or a substantially similar medical field as the defendant health care provider. W. Va. Code § 55-7B-7 (1994). While West Virginia courts generally follow this rule, they recognize exceptions in cases where common knowledge suffices or where plaintiff relies on the doctrine of res ipsa loquitur. See Neary v. Charleston Area Medical Center, 194 W. Va. 329, 460 S.E.2d 464).

Damage Caps

In West Virginia the jury is instructed that the maximum it may award against a health care provider for non-economic loss is $1,000,000. W. Va. Code § 55-7B-8 (1994). This statute has been held to be constitutional. Robinson v. Charleston Area Medical Center, 186 W. Va. 720, 414 S.E.2d 877 (1991). Non-economic loss is defined as including, but not limited to, pain, suffering, mental anguish, and grief. W. Va. Code § 55-7B-2(g) (1994).

Statutory Cap on Attorneys’ Fees

There is no West Virginia statute which limits the fees an attorney may recover in a medical malpractice action.

Periodic Payments

The use of periodic payments in medical malpractice actions is not required.

Collateral Source Rule

West Virginia recognizes the collateral source rule in all personal injury actions. Ratlief v. Yokum, 167 W. Va. 779, 280 S.E.2d 584 (1981). Therefore, damages are not reduced by collateral benefits the claimant has received as compensation for injuries for which he has recovered.

Pre-Judgment Interest

Under W. Va. Code § 56-6-31 (1997), special damages, including lost wages and medical expenses, bear pre- judgment interest at a rate of ten percent. Pre-judgment interest is recoverable in personal injury actions with respect to any direct pecuniary loss that can be rendered certain by calculation. Ilosky v. Michelin Tire Corp., 172 W. Va. 435, 307 S.E.2d 603 (1983).

Patient Compensation Funds and Physician Insurance

West Virginia does not have a patient compensation fund, and it does not require its licensed physicians to carry professional liability insurance.

Immunities

West Virginia’s Governmental Tort Claims Act specifically excludes from its scope hospitals belonging to political subdivisions of the state, W. Va. Code § 29-12A-3(c) (1992), so the following rules may have little application to medical malpractice cases. Subject to the Acts provisions, the state has waived its immunity and that of its political subdivisions, a category that includes municipalities, counties, and towns. W. Va. Code § 29-12A-4 (1992). Such political subdivisions and the state are, however, immune from liability for punitive damages and for non-economic damages in excess of $500,000. W. Va. Code § 29-12A-7 (1992). Public employees are immune from suit. W. Va. Code § 29- 12A-5(b) (1992).

All actions against West Virginia and its political subdivisions must be brought within two years from the occurrence or from the date the claimant discovered or should have discovered the occurrence. W. Va. Code § 29-12A-6 (1992). Claimants under ten years of age may bring an action against the state or its political subdivisions within the above-noted period or by their twelfth birthday, whichever is later. Id. The procurement of liability insurance will not effect a waiver of the political subdivision’s limited immunity. W. Va. Code § 29-12A-16(d) (1992).

Arbitration

West Virginia does not mandate the reference of medical malpractice actions to binding arbitration.

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Revision Date: February 6, 1998