Miller & Zois is a national personal injury law firm. Although we are based in Maryland, our firm routinely handles serious personal injury cases in West Virginia and other neighboring states. Our firm has helped injury victims in West Virginia get compensation in various types of cases across the state including medical malpractice, birth injuries, major auto accidents and everything else.
2-Year Statute of Limitations for West Virginia Injury Cases
All states have laws called statutes of limitation that impose time limits or deadline for how long a victim can wait before bringing a civil lawsuit in personal injury and other types of cases. If the lawsuit is not filed before the applicable statute of limitations (SOL) deadline expires, the plaintiff is legally barred from suing.
West Virginia has a general 2-year statute of limitations period that applies to all tort actions. This includes auto accidents, medical malpractice, slip and falls, and other personal injury claims:
Every personal action for which no limitation is otherwise prescribed shall be brought: … (b) within two years next after the right to bring the same shall have accrued if it be for damages for personal injuries;
WV Follows the Discovery Rule for Statute of Limitations
When determining when a deadline under West Virginia’s 2-year statute of limitation expires, the most important questions is when does the 2 year SOL period begin to run. Like most other states, West Virginia courts have adopted what is known as the “discovery rule” for establishing when the 2-year SOL clock starts ticking on a personal injury claim.
The discovery rule holds that the 2-year SOL period begins to run when the plaintiff first discovered that they might have a legal claim, or when a reasonable person would have first discovered that they might have a claim. The West Virginia appellate courts have held that discovery of a claim occurs when the plaintiff has, or reasonably should have, answers to 2 questions: (1) am I injured, and (2) who injured me?
In a simple auto accident case, the plaintiff has answers to both of these 2 questions immediately after the accident occurs. Therefore, the 2-year SOL period in an West Virginia car accident case begins to run on the date that the accident occurs. In more complex cases such as product liability or medical malpractice, however, the 2-year SOL might not start until years after the plaintiff’s injury occurs.
Modified Comparative Fault in West Virginia
West Virginia has adopted a modified comparative fault rule in cases where the plaintiff is partly at fault for their own injuries. Under comparative fault, each party is responsible for their own percentage share of fault in an accident and a plaintiff’s damages will be reduced by his or her share. For example, lets say Jane is in a car accident with John. John is found to be 70% at fault and Jane is 30% at-fault for the accident. Under comparative fault, Jane’s damages for the accident would be reduced by 30% to account for her share of fault. In other words, John would only be liable for 70% Jane’s loss.
In pure comparative negligence states, a plaintiff can recover some damages even if they are 80% or 99% at fault for an accident. West Virginia is not a pure comparative negligence state. West Virginia has modified the pure comparative fault rule with a 50% bar. Under this rule a person who is found to be more than 50% at fault is completely barred from recovery. This means if you are 51% at fault for the accident then you are unable to seek any damages.
West Virginia Medical Malpractice Law
West Virginia has a number of special laws and rules that apply only in medical malpractice cases. A medical malpractice case includes any tort claim for injuries brought against a licensed health care provider or hospital.
10-Year Statute of Repose for West Virginia Medical Malpractice Claims
In addition to the 2-year statute of limitations, medical malpractice cases in West Virginia are also subject to a 10-year statute of repose. West Virginia’s statute of repose for malpractice claims is like absolute maximum time deadline. Under the WV statute of repose, all medical malpractice cases must be filed within 10 years of the date that the injury occurs regardless of when the plaintiff should have known about the claim under the discovery rule.
Unlike the 2-year statute of limitations, West Virginia’s 10-year statue of repose for medical malpractice cases cannot be tolled. The only exception to the 10 year time bar is for cases where the victim or plaintiff is under the age of 10 at the time that the injury occurs. In these cases, the 10-year repose period is lifted and the plaintiff has 2 years after they turn 18 to file their malpractice claim.
Notice and Certificate of Merit Required for Medical Malpractice Cases in WV
Like many other states, West Virginia requires plaintiffs in medical malpractice cases to obtain a certificate of merit to support their claims before filing suit. The certificate of merit is a written statement from a qualified expert (i.e., another doctor) stating that they have reviewed the medical records and facts of the case and that in their expert opinion, medical negligence occurred. The detailed requirements for the certificate of merit in WV malpractice cases are set forth in WV Code § 55-7B-6.
Before filing a medical malpractice lawsuit, West Virginia law also requires that all defendants in the malpractice case be given written notice 30-days in advance of filing the lawsuit. The notice must provide a state of the grounds for the malpractice case and the theory of liability being asserted. It also must provide a copy of the certificate of merit and the names of all other defendants being named in the case.
Product Liability Law in West Virginia
Claims relating to defective or dangerous products that cause injury or harm to consumers are governed by West Virginia product liability law. The applicable law for product liability claims in West Virginia is derived from a combination of both case law and statutory law. This summary provides an very brief overview of West Virginia product liability law.
Under West Virginia law, a manufacturer or seller of a product can be held liable if that product is defective and that defect causes injuries or harm. West Virginia law acknowledges the 3 basic types of product defects as identified in the Restatement of Torts:
- Manufacturing Defects: a manufacturing defect is something that occurs during the assembly process rending the product defective and potentially dangerous.
- Design Defects: a design defect occurs when the product is manufactured correctly, but there is something inherent in its design that makes it defective and dangerous (e.g., an ingredient that causes cancer).
- Failure to Warn: a product can be considered defective if it is sold without proper warnings or instructions that enable users to avoid potential risks.
West Virginia Mass Tort Claims
There are number of national mass torts or “class actions” that involve hundreds of West Virginia plaintiffs, including claims our law firm is handling across the country:
- Hair relaxer lawsuit: recent evidence has shown that long term use of chemical hair relaxer products (most commonly used by African American women) can cause uterine cancer, ovarian cancer, uterine fibroids, and other conditions. This has prompted hundreds of women to file hair relaxer lawsuits.
- Suboxone Lawsuit: Suboxone is a drug used to treat opioid addiction. The manufacturer failed to warn doctors and patients that the sublingual film version of Suboxone can cause severe tooth decay. Individuals who suffered tooth decay and loss are now filing lawsuits.
- Bard PowerPort Lawsuits: The Bard PowerPort is an implantable port catheter device used by individuals undergoing chemotherapy and other treatments. Defects in the PowerPort design have led to infections, an damage to the vascular system, leading to a wave of product liability lawsuits.
- Uber Driver Sex Assault Lawsuits: Individuals who have been sexually assaulted by an Uber rideshare driver are filing lawsuits against Uber for negligently failing to screen and monitor their drivers.
West Virginia Verdicts and Settlements
In West Virginia, settlement amounts in personal injury and medical malpractice cases are determined based on several factors, including the severity of the injury, the impact on the victim’s quality of life, and the level of negligence or wrongdoing by the defendant.
Economic damages, such as medical expenses, lost wages, and future medical care, are a significant part of the calculation. Non-economic damages like pain and suffering, emotional distress, and loss of enjoyment of life are also considered, although West Virginia law places a cap on these damages in medical malpractice cases—again, typically $250,000 for general cases and up to $500,000 in cases involving catastrophic injuries or wrongful death. The process of determining a fair settlement requires a thorough review of medical records, expert testimony, and evidence that demonstrates how the injury has affected the victim’s life.
- $15 Million Verdict (West Virginia 2024): A Kanawha County jury awarded $15 million to the widow of a man who tragically died in a December 2020 explosion at the Belle Chemical Plant. The victim, a 42-year-old worker, was involved in a new process to remove water from chlorinated dry bleach when the explosion occurred, likened to the force of two tons of TNT. The explosion, which demolished the building housing the dryer, resulted in severe injuries and a painful death for the worker, who survived in agony for an hour and fifteen minutes post-explosion before losing consciousness. The lawsuit implicated the plant owner, Optima Belle, and the contracting chemical company, Clearon, along with other parties, under allegations of wrongful death. The jury found Clearon 70% responsible and Optima 30% responsible for the incident. They awarded $10 million for wrongful death and an additional $5 million for the victim’s conscious pain and suffering.
- $1,800,000 Verdict (West Virginia 2024): A woman was admitted to a hospital after experiencing severe migraines, numbness, and tingling in her extremities, collapsing in her family doctor’s waiting room. She was initially diagnosed with hyperreflexia, indicating overresponsive reflexes. However, within three days, her condition shifted dramatically to areflexia, showing non-responsive reflexes, a classic symptom of Guillain-Barré Syndrome (GBS). This condition can lead to paralysis and respiratory distress if untreated. Despite these clear signs, the medical professional did not consult further with a neurologist regarding the change in symptoms. As the woman’s condition worsened, showing symptoms consistent with GBS, her condition remained undiagnosed and untreated. This led to a respiratory arrest and her being placed on a ventilator for 16 days. Due to the delay in diagnosis and treatment, she suffered a debilitating brain injury, resulting in cortical blindness. It wasn’t until after her discharge from the hospital and a consultation at a different medical facility that she was informed she had been suffering from GBS, which caused her injuries. In the medical malpractice lawsuit that followed, she claimed that the doctor was negligent and reckless in her care and treatment. This negligence included a failure to properly diagnose the medical cause of her neurological symptoms, delaying re-consultation with a neurologist, and not providing necessary preventative respiratory support. The jury awarded her a $1.8 million verdict.
- $100,000,000 Settlement (West Virginia 2023): Former students alleged severe mistreatment at a private boarding school in West Virginia, leading to numerous civil lawsuits. The complaints detailed various forms of abuse, including physical, sexual, and emotional harm. Students were reportedly confined in small, windowless “quarantine rooms” in Salem, Harrison County, without basic amenities, sometimes for prolonged periods. These rooms lacked plumbing, heating, or cooling, with the only light switch located outside, often leaving the children in darkness. While in these rooms, students were given a bucket as a toilet, with limited food like bread and fruit or rice and beans. The school, situated in the West Virginia hills, faced accusations of hiding evidence by destroying documents and making modifications to the rooms. You know how this goes. While abusing students, the institution continued to charge tuition and promoted itself as an educational provider in the state. A sex abuse lawsuit was ultimately filed and a settlement of approximately $100 million was reached, marking one of the largest resolutions of its kind in West Virginia.
- $1,000,000 Settlement (West Virginia 2023): This wrongful death action was brought after a woman died at age 72 from complications of Stage IV breast cancer in July 2021 after her mammogram in May 2017 was interpreted by defendant radiologist. The plaintiff alleged that the mammogram showed a suspicious mass in the decedent’s right breast but the defendant deviated from the standard of care by ordering an ultrasound that was internally inconsistent and incomplete rather than a biopsy, resulting in a delay in diagnosis of cancer.
- $50,000 Settlement (West Virginia 2022): a 41-year-old machine operator, claimed to suffer a crushed left hand and shoulder injuries when her hand was pulled into a laminating machine, manufactured by the defendant. She brought a product liability lawsuit alleging that the machine was defectively designed because it lacked appropriate safety features.
- $4,800,000 Settlement (West Virginia 2021): During the birth of her first child, the plaintiff reportedly suffered a brainstem stroke and cerebral infarction resulting in partial paralysis from the arm area downward and the inability to verbally communicate. The stroke malpractice lawsuit alleged that the injuries were caused by the defendant’s negligent administration of depo-provera even though it was contraindicated.
- $450,000 Settlement (West Virginia 2021): A dentist advised the plaintiff to stop taking Coumadin for five days prior to dental work in October 2015. The plaintiff reportedly developed clotting and thrombosis during the time he was without anticoagulation protection and he eventually had to have his leg amputated.
Hiring a West Virginia Personal Injury Lawyer
Our firm handles serious injury and wrongful death lawsuits in West Virginia by working with local partner firms. We compensate our West Virginia lawyers out of our own attorneys’ fees so it doesn’t cost you anything to have two law firms instead of one. And you only owe a fee if you get settlement compensation or a jury payout for you.
If you were hurt and believe you have a potential civil tort claim, click here for a free no-obligation consultation or call us today at 800-553-8082 or get a free consultation online.