In 2017, the West Virginia Legislature amended several statutory provisions of the West Virginia Medical Professional Liability Act ("MPLA"), W. Va. Code § 55-7B-1 et seq, related to nursing home liability in WV. The WV MPLA governs the litigation of claims of medical malpractice liability in WV. The WV MPLA amendments provide a statutory definition of "occurrence" and set forth a shortened statute of limitation and preferred venue for claims brought against nursing homes, assisted living facilities, acute care hospitals or their employees, and other related entities.
The West Virginia Medical Professional Liability Act Amendments Explained
Definition of "Occurrence"
The WV MPLA amendments define "occurrence" broadly and include all treatment related to the alleged injury or injuries, including follow up care, and whether those injuries arose during one encounter or over the course of many. This new definition is primarily expected to affect the damages caps that the MPLA already has established on a "per occurrence" basis. For example, the MPLA has set forth "per occurrence" trauma caps (W. Va. Code § 55-7B-9c) and noneconomic damages caps (W. Va. Code § 55-7B-8). It is additionally designed to avoid the filing of multiple lawsuits regarding nursing home liability in WV arising from the same course of treatment.
Statute of Limitations
The West Virginia Medical Professional Liability Act also establishes a one-year statute of limitations period (as opposed to the prior two-year period in the MPLA) for medical professional liability claims for the liability of a WV nursing home, assisted living facility, and other related entities. Moreover, all claims against them must be filed in the county where the nursing home or other facility is located and the alleged malpractice occurred. The WV MPLA amendments do not affect a party's ability to remove a case to federal court, however.
West Virginia Medical Professional Liability Act Pre-Suit Requirement Timelines
The WV MPLA amendments provide new pre-suit requirement timelines. The MPLA typically has required the notice of claim and screening certificate of merit to be provided to health care providers simultaneously. However, the MPLA also provided that a claimant may provide a screening certificate of merit within 60 days after the health care provider received the notice of claim, but only in cases where serving them simultaneously was not feasible due to time constraints. The WV MPLA amendments have created a similar provision for suits against nursing homes and related facilities and allow the screening certificate of merit to be provided within 180 days rather than 60.
The West Virginia Medical Professional Liability Act amendments apply to all causes of medical professional liability claims filed on or after July 1, 2017.
If you have questions about the West Virginia Medical Professional Liability Act, or any WV medical malpractice liability, you need the experienced medical malpractice defense attorneys at Jenkins Fenstermaker, PLLC. To discuss your concerns, contact me, Justin Kearns, by calling me directly at 866.617.4736 or by completing our firm's contact form.