Medical malpractice cases are particularly distressing, especially if you or a loved one have suffered an injury at the hands of a trusted healthcare provider.
If you’re considering filing a lawsuit against any medical provider, including:
- Other auxiliary healthcare providers, such as an anesthesiologist
- Tertiary care and other medical facilities
- Nursing homes
- Assisted living facilities
There are several steps to be taken, and time limits to pay attention to so that you don’t lose your right to sue.
West Virginia’s Statute Of Limitations
This is important, because there are two parts to it.
The first part is that as a rule, you have two years to file a medical malpractice claim, either from the date of injury, or from the date you discover it. In order to prove when you discovered the injury, you have a very high burden of proof. You will have to prove that you didn’t discover the injury, and could not have discovered it, until the point where you took remedial action.
The second part is the statute of repose. Your right to sue for a newly discovered injury ends in ten years. No matter when the injury occurred, even if you just discovered it, the clock is “tolled,” or stopped at the ten-year mark. You will no longer be allowed to file a claim for malpractice after this point.
Cases filed against nursing homes and assisted living facilities only have a one-year statute of limitations.
You can read the full text of West Virginia’s medical malpractice statute of limitations online at West Virginia Code section 55-7B-4.
Notice Of Claim
You will be required to notify the healthcare provider that you plan to sue at least 30 days in advance of filing your suit, sent by certified mail. It must include:
- The grounds for your lawsuit
- The theory of liability on which the suit is based on
- A list of all the healthcare providers who will be receiving the notice
- A Screening Certificate of Merit
This notice is prepared and written by a healthcare provider who qualifies as a medical expert under West Virginia Code section 55-7B-6. In the statement, the expert must describe:
- His or her qualifications as an expert in West Virginia
- His or her familiarity with the standard of care associated with the plaintiff’s condition and what would be appropriate under the circumstances
- An opinion on how the defendant failed to provide the proper treatment to the plaintiff
- How that failure caused the plaintiff to be injured
After 30 days following the Notice of Claim is provided to the defendant, the lawsuit can be filed.
Mediation is an option available to settle a case before or without going to court. You can choose to engage in mediation, but, it’s not required before filing a claim for medical malpractice.
However, if you are pursuing a case against a nursing home and/or an assisted living facility, arbitration is required for claims against these facilities.
How Long Does A Case Take?
Like the outcome, there isn’t a formula to predict how long your case will take to be resolved.
Before the statute of limitations runs out, you’ll need to consult with a medical malpractice attorney, who will investigate, gather evidence, and build your case.
When your attorney is ready to file, the Notice of Claim is sent to the defendant 30 days prior to filing to notify them of the impending lawsuit.
Once filed, courts typically schedule trials about 18 months after filing.
Medical Malpractice? Call The Love Law Firm
Filing a claim against a medical professional, whether a doctor, clinic, hospital, drug company, or other provider is a complex, difficult case with a lot of moving parts. Get strong legal representation to help with a case that may directly affect the rest of your life.
Call The Love Law Firm today at (304) 344-5683 and schedule your appointment with one of our medical malpractice attorneys. We’ll discuss your case with you, explain your options and what to expect. Our contingency fee arrangement means you won’t owe a fee if we don’t win your case.