Limitations on Recovering Damages in West Virginia

January 18, 2022

The West Virginia Legislature has placed limits on a patient’s right to obtain full and fair compensation for injuries suffered because of medical malpractice. W. Va. Code § 55-7B-8 contains limitations on the recovery of non-economic damages. Under that statute, recovery for non-economic damages is limited to $250,000, plus increases based upon the consumer price index. This limitation on the amount you can receive is raised to $500,000 where the non-economic losses suffered by a patient are for: (1) wrongful death; (2) permanent and substantial physical deformity, loss of use of a limb or loss of a bodily organ system; or (3) permanent physical or mental functional injury that permanently prevents the injured person from being able to independently care for himself or herself and perform life-sustaining activities. The Legislature has not defined what constitutes a “permanent and substantial physical deformity” or “loss of use of a limb.” For the year 2021, the high cap on non-economic damages is $706,752. The low cap, for the year 2021 is $353,376.

These damage limitations apply only to non-economic damages. Patients are still entitled to an award for past and future medical bills, lost wages, future life care needs, and loss of household services with no limitations being placed on their recovery.

The West Virginia Legislature has also placed a limit on all damages recoverable in medical malpractice actions where the injury to or death of a patient is a result of negligent healthcare services rendered in treating an emergency condition for which the patient enters a healthcare facility which has been designated by the Office of Emergency Medical Services as a Trauma Center. Under those circumstances, the damages recoverable is currently $539,079 for non-economic damages and economic damages of up to $1,000,000. These caps do not apply if the malpractice occurred after the patient’s condition is stabilized and the patient is capable of receiving medical treatment as a non-emergency patient or if the treatment is unrelated to the original emergency condition. W. Va. Code § 55-7B-9c also provides certain limited exceptions to these trauma caps.