Statute of Limitations for Medical Malpractice Lawsuits in Kentucky and West Virginia
April 13, 2022
While it may come as a surprise to you, every State has time limits by which you must file your medical malpractice claim and if you fail to do so, your claims are barred. In Kentucky, KRS 413.140 provides that a malpractice action against a physician, surgeon, dentist, or hospital must be filed no later than 1 year after the negligent act or omission leading to the malpractice occurred or the claim will be considered time-barred. Under limited circumstances the statute of limitations may, under the unique facts of your case, be extended because of the discovery rule, the continuous treatment doctrine or if you are suffering from certain types of mental disabilities. If the medical malpractice claim involves a minor, the 1-year statute of limitations does not begin to run until the Plaintiff becomes an adult. In Kentucky, an individual is considered to have reached the legal age of majority when they turn 18 years of age. So, if the medical malpractice claim occurs before an individual reaches the age of majority the statute of limitations is extended for 1 year after the individual turns 18 or they marry. Finally, if the medical malpractice has resulted in the death of an individual the statute of limitations is significantly different. In that instance, the suit must be brought (a) one (1) from the date on which the deceased personal representative is appointed, or (b) two (2) years from the date of the person’s death if the personal representative is appointed more than one (1) year from the date of death.
The statute of limitations for medical malpractice actions in West Virginia is slightly different. Pursuant to West Virginia Code §55-7B-4 a claim alleging an injury, including death, as a result of medical malpractice against a healthcare provider (except a nursing home, assisted living facility, or a distinct part of an acute care hospital providing intermediate care skilled nursing care) must be commenced within two (2) years of the injury, or within two (2) years of the date when such person discovers, or with the exercise of reasonable diligence, should have discovered their injury, whichever occurs last. Just like in Kentucky, the statute of limitations may be extended under certain limited circumstances including the discovery rule, the continuous treatment doctrine, and because the injured individual suffered from certain types of mental disabilities. If the medical malpractice action involves a claim against a nursing home, assisted living facility, or an acute care hospital providing intermediate care or skilled nursing care the statute of limitations requires that your lawsuit must be commenced within one (1) year of the date of such injury, or within one (1) year of the date when you discover, or with the exercise of reasonable diligence, should have discovered your injury whichever occurs last. If the medical malpractice claim involves an injury to a minor, the statute of limitations is slightly different. Under that circumstance, a malpractice action for injury to a minor brought by or on behalf of a minor who was under the age of ten (10) years at the time of their injury, must be commenced within two (2) years of the date of that injury, or prior to the minor’s twelfth (12th ) birthday, whichever period is longer. If the malpractice occurred after the minor turned ten (10) years of age, the lawsuit must be commenced within two (2) years of the date of the injury. And, just like with adults, the statute of limitations for a minor may be extended under certain limited circumstances including the discovery rule, the continuous treatment doctrine, or because the minor suffered certain types of mental disabilities.
In addition to the statute of limitations both Kentucky and West Virginia, also has what is known as a statute of repose which sets an outer time limit that any malpractice claim must comply with regardless of the statute of limitations. In Kentucky, the statute of repose in a medical malpractice action is found in KRS §143.140 which provides that a medical malpractice action, regardless of any other circumstances, must be commenced within five (5) years from the date on which the alleged act or omission leading to the malpractice occurred. In 1990, the Kentucky Supreme Court held that the statute of repose dealing with medical malpractice actions was unconstitutional in the case of McCollum v. Sisters of Charity of Nazareth Health Corp., 799 S.W.2d 15 (KY 1990) and no attempts by the Kentucky Legislature have been enacted in order to reinstate a statute of repose. In West Virginia, the statute of repose is found is West Virginia Code §55-7B-4 which provides that regardless when the malpractice occurs and irrespective of when a person discovers their injury no medical malpractice action may be commenced more than ten (10) years after the date of injury.
Because your claim may be barred if it is not timely filed, and because the statute of limitations in both Kentucky and West Virginia may be able to be extended based upon your unique circumstances, it is imperative that you speak with a medical malpractice attorney as soon as possible so your claim does not expire without you being able to have the opportunity of recovering what your medical provider has taken away from you.