West Virginia Medical Malpractice Lawyers
By J. Brandon Shumaker and J. Tyler Slavey · Slavey & Shumaker PLLC · Morgantown, WV · Last updated November 4, 2026
Table of Contents
Patients trust doctors, nurses and hospitals at vulnerable moments. When care falls below accepted standards, the result can be a worsened illness, a permanent injury or the loss of a family member, along with medical bills and lost income that the family never expected.
Slavey & Shumaker PLLC helps patients and families in Morgantown and throughout the State of West Virginia, including Monongalia, Preston, Marion and Harrison Counties understand whether what happened may be malpractice and what West Virginia law requires to bring a claim. For an overview of our injury practice, see our personal injury lawyers page.
1. What Counts as Medical Malpractice
The Medical Professional Liability Act applies to claims for injury or death “arising or resulting from the rendering of or failure to render health care” (W. Va. Code § 55-7B-2(h)). “Health care provider” is defined broadly and includes physicians, physician assistants, advanced practice registered nurses, registered and licensed practical nurses, hospitals and other health care facilities, dentists, pharmacists, chiropractors, physical therapists, emergency medical service personnel and others licensed or certified to provide health care, along with their employees and agents (§ 55-7B-2(g)). Nursing homes and assisted living facilities are health care facilities under the Act (§ 55-7B-2(f)).
A poor outcome is not the same as malpractice. Medicine carries risks, and some complications happen even with careful treatment. The question is whether the provider failed to meet the accepted standard of care and whether that failure caused the harm.
2. Medical Malpractice Cases We Handle
Failure to diagnose cancer, heart attack, stroke, infection or other serious conditions in time for effective treatment.
Wrong-site procedures, injuries to nearby organs or nerves, retained instruments and failures in post-operative monitoring.
Wrong drug or dose, dangerous interactions and failure to monitor a patient’s response.
Injuries to a mother or baby from failures to monitor and respond during pregnancy, labor and delivery.
Failure to monitor, delayed treatment, discharge errors and inadequate staffing.
Falls, pressure injuries, dehydration, malnutrition and medication errors. These claims have shorter deadlines.
3. What Must Be Proven
Under W. Va. Code § 55-7B-3(a), the injured person must prove that:
- The health care provider failed to exercise 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 provider belongs, acting in the same or similar circumstances; and
- That failure was a proximate cause of the injury or death.
When a claim is based on the loss of a chance of recovery or survival, the patient must also prove, to a reasonable degree of medical probability, that following the standard of care would have resulted in a greater than 25 percent chance of an improved recovery or survival (§ 55-7B-3(b)).
The standard of care and its breach are established through expert testimony when the court requires it. The Act sets qualifications for those experts, including a current medical license and experience or training in diagnosing or treating injuries or conditions similar to the patient’s (§ 55-7B-7(a)). Each defendant is generally liable only for its own percentage of fault (§ 55-7B-9(c)).
4. Notice of Claim and Screening Certificate of Merit
West Virginia requires several steps before a malpractice lawsuit can be filed (W. Va. Code § 55-7B-6):
At least 30 days before filing suit, the claimant must serve a notice of claim by certified mail, return receipt requested, on each health care provider who will be joined in the lawsuit, stating the theories of liability (§ 55-7B-6(b)).
The notice must include a screening certificate of merit, signed under oath by a qualified health care provider, explaining the standard of care, how it was breached, how the breach caused the injury or death, and the records reviewed. A separate certificate is required for each provider (§ 55-7B-6(b)).
If there is not enough time to obtain the certificate before the deadline, the claimant may serve a statement of intent to provide it within 60 days, or within 120 days in nursing home and similar cases (§ 55-7B-6(d) and (e)).
A provider may respond within 30 days and may demand prelitigation mediation, which must be concluded within 45 days of the demand (§ 55-7B-6(f) to (h)).
The filing deadline is paused while the notice and mediation process runs, as set out in the statute (§ 55-7B-6(i)).
These steps take time and require a qualified expert to review the medical records, so it is important to start well before any deadline.
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5. Filing Deadlines
| Type of claim | Deadline |
|---|---|
| Most health care providers | Two years from the injury, or two years from when it was or reasonably should have been discovered, whichever last occurs, and never more than 10 years after the injury (§ 55-7B-4(a)) |
| Nursing homes, assisted living facilities and similar care | One year from the injury, or one year from when it was or reasonably should have been discovered, whichever last occurs, and never more than 10 years after the injury (§ 55-7B-4(b)) |
| Children injured before age 10 | Two years from the injury or before the child’s 12th birthday, whichever provides the longer period (§ 55-7B-4(c)) |
| Fraud or concealment | The deadline is tolled while a provider commits fraud or collusion by concealing or misrepresenting material facts about the injury (§ 55-7B-4(d)) |
When malpractice causes a death, the family’s claim also involves the wrongful death statute; see our wrongful death page.
6. Damages and the Noneconomic Damages Cap
A successful claim can recover economic damages, such as medical expenses, future care and lost income, and noneconomic damages, such as pain, suffering, mental anguish and grief. West Virginia limits noneconomic damages in medical malpractice cases (W. Va. Code § 55-7B-8):
| Limit | Applies to |
|---|---|
| $250,000 per occurrence (base amount) | Most claims, regardless of the number of plaintiffs or defendants (§ 55-7B-8(a)) |
| $500,000 per occurrence (base amount) | Wrongful death; permanent and substantial physical deformity, loss of use of a limb or loss of a bodily organ system; or permanent physical or mental functional injury that permanently prevents the person from independently caring for himself or herself and performing life-sustaining activities (§ 55-7B-8(b)) |
| Inflation adjustment | The limits increase each year with the Consumer Price Index, but not above 150 percent of the base amounts (§ 55-7B-8(c)) |
The caps do not limit economic damages, and they are not available to a defendant that does not have medical professional liability insurance of at least $1 million for the occurrence (§ 55-7B-8(d)).
7. What to Do If You Suspect Malpractice
Your health comes first. A second opinion from another provider can also help clarify what happened.
Ask for complete copies of your medical records, including test results, imaging and nursing notes.
Record dates, symptoms, what you were told and by whom, while your memory is fresh.
Save medical bills, insurance statements and records of missed work.
Expert review, the notice of claim and the certificate of merit all take time, and some deadlines are as short as one year.
Our consultation checklist lists what to bring to a first meeting.
8. Why Choose Slavey & Shumaker PLLC
Our attorneys, J. Tyler Slavey, J. Brandon Shumaker, Scott B. Harris and Kasey Libby, will listen to what happened, gather the records and explain the requirements of the Medical Professional Liability Act in plain language. In many cases, we co-counsel with select attorneys and firms to fight for the best possible outcome. In every case, we work with qualified medical experts to evaluate whether the care met the standard and, when a claim is supported, we handle the notice of claim, the certificate of merit and the lawsuit. No lawyer can guarantee a result. You can read what past clients say in our more than 100 Google reviews.
9. Frequently Asked Questions About Medical Malpractice
Talk With a West Virginia Medical Malpractice Lawyer
Slavey & Shumaker PLLC, 174 Chancery Row, Morgantown. Serving clients throughout the State of West Virginia, including Monongalia, Preston, Marion and Harrison Counties. The consultation is free, telephone consultations are available, and you pay no fee unless we recover.
This page is provided for general informational purposes about West Virginia law and is not legal advice. Reading it does not create an attorney-client relationship. Every case depends on its own facts, and past results do not guarantee a similar outcome.