Medical Malpractice

Medical Malpractice Lawsuit Requirements in West Virginia

By David Goguen, J.D., University of San Francisco School of Law
If you're filing a medical malpractice lawsuit in West Virginia's courts, you'll need to jump through a few extra procedural hoops in order to get the case started.

In West Virginia, a medical malpractice lawsuit is a complicated undertaking, especially when compared with other types of civil cases. For one thing, the medical and legal issues common to these kinds of lawsuits are complex, and most cases include the introduction of extensive treatment records, as well as the detailed testimony of numerous medical experts.

But a West Virginia medical malpractice plaintiff (the person bringing the lawsuit) must also comply with certain procedural rules right at the outset (actually, before filing the complaint, which sets out the allegations against the defendant health care provider). These safeguards have been put in place as part of tort reform efforts, which seek to discourage the filing of frivolous injury-related lawsuits and keep health care providers' liability insurance rates from skyrocketing. In this article, we'll summarize one of the most important of these rules in West Virginia: the "screening certificate of merit" requirement for most medical malpractice lawsuits.

Notice of Claim and the "Screening Certificate of Merit"

At least 30 days before you file a medical malpractice lawsuit in the state's courts, West Virginia Code section 55-7B-6 requires you to serve, by certified mail, a proper "notice of claim" on each health care provider you're planning to bring into the lawsuit.

This notice must include:

  • a statement by you (or probably more accurately, by your attorney) as to the theory of liability on which your lawsuit will be based
  • a comprehensive list of all health care providers, health care facilities, and other potential defendants who are receiving the notice, and
  • a "screening certificate of merit."

So, the next question becomes, What is a "screening certificate of merit"? It's a written statement, made under oath, by a health care provider who qualifies as an "expert" under West Virginia's court rules. In his or her sworn statement, the expert must describe, with specifics:

  • his or her familiarity with the applicable "standard of care" that the health care providers should have acted under in treating you (note: West Virginia law defines this "standard of care" as "that degree of care, skill and learning required or expected of a reasonable, prudent health care provider in the profession or class to which the health care provider belongs acting in the same or similar circumstances")
  • his or her qualifications to serve as an expert under West Virginia law
  • his or her opinion as to exactly how the defendant health care provider(s) failed to provide treatment to you that was in line with the applicable standard of care, and
  • his or her opinion as to how the health care provider's provision of sub-standard care resulted in injury to you (a worsening of your condition, the development of new health problems, etc.).

A separate "screening certificate of merit" must be prepared and sworn to for every health care provider being sued (although the same expert can prepare more than one certificate).

(Learn more: Do I Have a Medical Malpractice Case?)

If you (and/or your attorney) believe that no "screening certificate of merit" needs to be filed in connection with your potential medical malpractice lawsuit, because it is based on a "well-established legal theory of liability which does not require expert testimony" -- a surgeon left an instrument inside you after a procedure, or the wrong body part was operated on, for example -- you don't need to file a "screening certificate." Instead, you can file a statement specifically describing the basis of the health care provider's liability (what the provider did or failed to do, and how you were harmed).

This is a somewhat simplified explanation of the "screening certificate of merit" requirement, for the sake of brevity. The full details are spelled out at West Virginia Code section 55-7B-6.

More Information on West Virginia Medical Malpractice Cases

A West Virginia medical malpractice plaintiff also needs to be aware of -- and be in compliance with -- the lawsuit filing deadline set by the West Virginia statute of limitations for medical malpractice lawsuits.

For more details on filing requirements and anything else related to a West Virginia medical malpractice case -- and of course, for legal advice that's tailored to your specific situation -- it could be time to talk with an experienced West Virginia medical malpractice lawyer.

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