Before you can file a medical malpractice or negligence case against a medical provider or a medical facility, West Virginia law requires that you first file a certificate of merit. This is essentially an affidavit from a licensed physician who is an expert in the field of medicine for which the lawsuit is based attesting under oath to the validity or merits of the claim.
Medical malpractice claims are grounded in negligence law that governs such cases as motor vehicle accidents, slip and falls or other actions where someone’s conduct fell below a certain standard of care and led to an injury. However, many states including West Virginia feel that medical providers and hospitals need protection from frivolous claims that they assert drive up the cost of medical care and insurance premiums and that result in doctors practicing defensive medicine because of the fear of lawsuits.
Consequently, many states including West Virginia require that an expert medical provider assert under oath that a malpractice claim has merit. Also, many states have placed caps or limits on what you can recover in a medical malpractice case. In West Virginia, the cap is $250,000 per occurrence for non-economic damages. You are not limited by economic losses such as past and future medical expenses and loss of earnings.
Regardless of whether such arguments are valid, you will have to locate a medical expert to review your medical records and facts and determine if the applicable medical standard of care was breached in your case that led to your injury.
Under WVa Code § 55-7B-6, also known as the Medical Professional Liability Act, you must serve a certificate of merit by certified mail on each medical provider or facility against whom you plan to file your malpractice claim at least 30-days before you file your claim. The certificate is to be given under oath by the expert physician and must contain the following:
Statement of the theory or theories of the claim
A list of all health care providers and facilities to whom you are sending the certificate of merit
The credentials or qualifications of the expert
That the expert is familiar with the applicable medical standard of care
The expert’s opinion on how the standard of care was breached by the defendant health care provider or medical facility
An opinion on how the breach of the standard of care led to the injury or death
That the expert has no financial interest in the underlying claim though the expert may testify as an expert in any judicial proceeding regarding the case
A medical provider or facility that has received the certificate has 30-days to respond and state that it has a bona fide defense to the claim and provide the name of defense counsel, if any. Further, the defendant may make a written demand for pre-litigation mediation, which shall be concluded within 45-days of the date of the demand. As a claimant, you may depose the health care provider before the mediation.
During this period, the statute of limitations for bringing the claim is tolled, or stayed for 30-days. If it goes to mediation, the statute is tolled for 30-days after written notice from the mediator that the mediation did not settle the matter.
If you have a question about medical malpractice or a physician or hospital negligence case, give us a call. At Wolfe, White & Associates we know the law and how to help identify medical negligence. Call us at 304-752-7715 for a free consultation.
J. Christopher White