Medical Malpractice Complaint - West Virginia

COMPLAINT FOR MEDICAL PROFESSIONAL LIABILITY — WEST VIRGINIA

TABLE OF CONTENTS

1. Caption
2. Introduction
3. Parties
4. Jurisdiction and Venue
5. Compliance with Pre-Suit Requirements
6. Background Facts and Standard of Care
7. Count I — Medical Negligence (Treating Physician)
8. Count II — Medical Negligence (Hospital / Facility)
9. Count III — Vicarious Liability / Apparent Agency
10. Count IV — Lack of Informed Consent
11. Count V — Negligent Hiring, Credentialing, Retention, and Supervision
12. Damages
13. Prayer for Relief
14. Demand for Trial by Jury
15. Reservation of Rights
16. Signature and Service Blocks
17. Verification
18. Certificate of Service
19. West Virginia Practice Notes
20. Sources and References

1. CAPTION

IN THE CIRCUIT COURT OF [COUNTY] COUNTY, WEST VIRGINIA

CIVIL ACTION NO. [________________________________]

JUDGE: [________________________________]

VERIFIED COMPLAINT FOR MEDICAL PROFESSIONAL LIABILITY

2. INTRODUCTION

Plaintiff, by and through undersigned counsel, brings this action under the West Virginia Medical Professional Liability Act, W. Va. Code § 55-7B-1 et seq., for the catastrophic injuries [or wrongful death] caused by Defendants' departure from the applicable standards of care in their medical treatment of [PATIENT NAME] between [BEGINNING DATE] and [ENDING DATE], and alleges as follows:

3. PARTIES

3.1. Plaintiff [PLAINTIFF NAME] is a competent adult and a resident of [COUNTY] County, West Virginia, residing at [ADDRESS]. [If wrongful death: Plaintiff brings this action as duly appointed Personal Representative of the Estate of [DECEDENT NAME], who died on [DATE], pursuant to letters testamentary issued by [COUNTY] County, West Virginia, on [DATE].]

3.2. Defendant [DEFENDANT PHYSICIAN NAME], M.D. ("Defendant Physician"), is, on information and belief, a physician licensed to practice medicine in West Virginia, holding License No. [####], and at all relevant times provided medical services to [PATIENT NAME] at [FACILITY]. Defendant Physician is a "health care provider" within the meaning of W. Va. Code § 55-7B-2(g).

3.3. Defendant [MEDICAL GROUP NAME] ("Defendant Group") is a [professional corporation / limited liability company] organized under the laws of West Virginia, with its principal place of business at [ADDRESS], and is the employer or principal of Defendant Physician.

3.4. Defendant [HOSPITAL NAME] ("Defendant Hospital") is a [non-profit / for-profit] corporation organized and existing under West Virginia law, operating a licensed hospital at [ADDRESS] in [COUNTY] County, West Virginia, and is a "health care facility" within the meaning of W. Va. Code § 55-7B-2(f).

3.5. Defendants John/Jane Does 1-10 are presently unidentified physicians, residents, nurses, technicians, employees, agents, or apparent agents of Defendant Hospital and/or Defendant Group whose acts or omissions contributed to the injuries described herein, and who will be specifically named upon discovery of their identities.

4. JURISDICTION AND VENUE

4.1. This Court has subject-matter jurisdiction pursuant to W. Va. Const. art. VIII, § 6 and W. Va. Code § 51-2-2, the amount in controversy exceeding the jurisdictional minimum.

4.2. Venue is proper in this Court pursuant to W. Va. Code § 56-1-1 because [the cause of action arose in this County / Defendants reside or have their principal place of business in this County / the wrongful act occurred at a health care facility located in this County].

5. COMPLIANCE WITH PRE-SUIT REQUIREMENTS

5.1. On [DATE], more than thirty (30) days before the filing of this Complaint, Plaintiff served a Notice of Claim and a Screening Certificate of Merit on each named Defendant by certified mail, return receipt requested, in compliance with W. Va. Code § 55-7B-6. True and correct copies of the Notice of Claim, Screening Certificate of Merit, and certified-mail return receipts are attached as Exhibits A, B, and C, respectively, and incorporated herein by reference.

5.2. The Screening Certificate of Merit was executed under oath by [EXPERT NAME], M.D., a board-certified [SPECIALTY] who, at the time of the alleged medical injury, devoted at least sixty percent (60%) of his/her professional time annually to active clinical practice [or teaching] in the same field of medicine as Defendant Physician, and who otherwise satisfies the qualifications of W. Va. Code §§ 55-7B-6(b) and 55-7B-7.

5.3. Defendants have either failed to respond to the Notice of Claim within thirty (30) days, or have responded without resolving the claim, and Plaintiff has otherwise satisfied all conditions precedent to filing this action.

6. BACKGROUND FACTS AND STANDARD OF CARE

6.1. On or about [DATE], [PATIENT NAME] ("Patient"), then [AGE] years old, presented to [FACILITY] with [CHIEF COMPLAINT / SYMPTOMS].

6.2. Patient was admitted under the care of Defendant Physician, who held himself/herself out as a specialist in [SPECIALTY] competent to render the medical services described herein.

6.3. The applicable standard of care required Defendant Physician, as a reasonably prudent [SPECIALTY] practicing under the same or similar circumstances, to [STATE STANDARD OF CARE — e.g., timely order imaging studies; recognize signs of sepsis; obtain appropriate consult; administer prophylactic antibiotics; etc.].

6.4. The applicable standard of care required Defendant Hospital, through its nursing, technical, and administrative staff, to [STATE STANDARD OF CARE — e.g., monitor vital signs in accordance with hospital protocol; timely escalate concerning findings to the attending; maintain accurate medical records; etc.].

6.5. Despite these standards, on [DATE], Defendant Physician [STATE BREACH — e.g., failed to order a CT scan despite classic presentation of pulmonary embolism; misread the imaging study; failed to admit Patient for observation; prescribed contraindicated medication; etc.].

6.6. As a direct and proximate result of these breaches, Patient suffered [DESCRIBE INJURY — e.g., delayed diagnosis of stroke resulting in permanent hemiparesis; cardiac arrest with anoxic brain injury; surgical complications including bowel perforation; wrongful death; etc.].

6.7. The injuries sustained by Patient were a foreseeable consequence of Defendants' breaches and would not have occurred in the absence of negligence in the exercise of the applicable degree of skill and learning.

7. COUNT I — MEDICAL NEGLIGENCE (Treating Physician)

7.1. Plaintiff realleges and incorporates Paragraphs 1.1 through 6.7 as if fully set forth herein.

7.2. Defendant Physician owed Patient a duty to exercise that degree of care, skill, and learning required or expected of a reasonably prudent [SPECIALTY] acting under the same or similar circumstances, as set forth in W. Va. Code § 55-7B-3.

7.3. Defendant Physician breached the applicable standard of care by, inter alia:

• Failing to [OBTAIN PROPER HISTORY / ORDER INDICATED TESTING];
• Failing to [CORRECTLY INTERPRET DIAGNOSTIC STUDIES];
• Failing to [TIMELY DIAGNOSE THE CONDITION];
• Failing to [OBTAIN APPROPRIATE CONSULTATION];
• Failing to [ADMINISTER OR PRESCRIBE PROPER TREATMENT];
• Failing to [FOLLOW UP ON ABNORMAL FINDINGS]; and
• Other breaches to be proven at trial.

7.4. Each breach was a proximate cause of Patient's injuries [and death].

7.5. As a direct and proximate result, Plaintiff has suffered the damages enumerated in Section 12 below.

8. COUNT II — MEDICAL NEGLIGENCE (Hospital / Facility)

8.1. Plaintiff realleges and incorporates Paragraphs 1.1 through 7.5 as if fully set forth herein.

8.2. Defendant Hospital, by and through its nurses, technicians, residents, employees, and other staff, owed Patient an independent corporate and institutional duty of care, including the duties to:

• Adopt and enforce policies and protocols consistent with applicable accreditation and licensure standards (e.g., Joint Commission, CMS Conditions of Participation);
• Properly credential, supervise, and retain medical staff;
• Provide adequate staffing, equipment, and facilities; and
• Ensure timely communication of critical findings to attending physicians.

8.3. Defendant Hospital breached these duties by [STATE BREACH — e.g., understaffing the unit; failing to enforce sepsis screening protocols; failing to require chain-of-command escalation; failing to maintain functional equipment].

8.4. Each breach was a proximate cause of Patient's injuries.

9. COUNT III — VICARIOUS LIABILITY / APPARENT AGENCY

9.1. Plaintiff realleges and incorporates Paragraphs 1.1 through 8.4 as if fully set forth herein.

9.2. At all relevant times, Defendant Physician was an actual or apparent agent, servant, or employee of Defendant Group and/or Defendant Hospital, acting within the course and scope of such agency or employment.

9.3. Defendant Hospital and Defendant Group held out Defendant Physician as their agent or employee through advertising, signage, billing practices, the issuance of consent forms bearing institutional letterhead, and the assignment of patients without informing them of the independent-contractor status of the physician.

9.4. Patient reasonably relied upon those representations in receiving medical care.

9.5. Accordingly, Defendant Group and Defendant Hospital are vicariously liable for the acts and omissions of Defendant Physician under the doctrines of respondeat superior and apparent/ostensible agency, including W. Va. Code § 55-7-13d(b)(2) (joint and several liability where vicarious liability applies).

10. COUNT IV — LACK OF INFORMED CONSENT

10.1. Plaintiff realleges and incorporates Paragraphs 1.1 through 9.5 as if fully set forth herein.

10.2. Before performing [PROCEDURE] on Patient, Defendant Physician had a duty to disclose to Patient the material risks, benefits, and reasonable alternatives to the procedure, such that a reasonable person in Patient's position could make an informed decision.

10.3. Defendant Physician failed to disclose [SPECIFIC UNDISCLOSED RISK — e.g., the risk of bowel perforation in laparoscopic surgery; alternative non-surgical treatment options; the surgeon's outcome record].

10.4. Had Patient been informed of the undisclosed material risk, a reasonable person in Patient's position would not have consented to the procedure.

10.5. The undisclosed risk materialized, proximately causing Patient's injuries.

11. COUNT V — NEGLIGENT HIRING, CREDENTIALING, RETENTION, AND SUPERVISION

11.1. Plaintiff realleges and incorporates Paragraphs 1.1 through 10.5 as if fully set forth herein.

11.2. Defendant Hospital and Defendant Group owed an independent duty to exercise reasonable care in selecting, credentialing, retaining, and supervising the physicians, residents, and staff to whom they granted clinical privileges.

11.3. Defendants knew or should have known, by virtue of [PRIOR INCIDENTS / ADVERSE PEER REVIEW / NPDB REPORTS / PRIOR LITIGATION / SUBSTANCE-USE HISTORY], that Defendant Physician posed an unreasonable risk of harm to patients.

11.4. Defendants nonetheless granted, renewed, or failed to revoke privileges, and failed to provide adequate supervision.

11.5. Defendants' negligence in hiring, credentialing, retention, and supervision was a proximate cause of Patient's injuries.

12. DAMAGES

12.1. As a direct and proximate result of Defendants' breaches of the applicable standards of care, Plaintiff [or Patient] has suffered damages including, without limitation:

• Past and future medical, hospital, rehabilitative, nursing, and prescription expenses;
• Past and future lost wages and loss of earning capacity;
• Past and future physical pain, mental anguish, and emotional distress;
• Permanent injury, disfigurement, and loss of enjoyment of life;
• Loss of consortium [if applicable];
• Funeral and burial expenses [if applicable]; and
• All other damages recoverable under W. Va. Code §§ 55-7-5, 55-7-6, and 55-7B-1 et seq.

12.2. Plaintiff seeks noneconomic damages within the limits prescribed by W. Va. Code § 55-7B-8, as adjusted for inflation, and reserves the right to demonstrate that the catastrophic-injury cap of $500,000 (CPI-adjusted) applies pursuant to § 55-7B-8(b) because Patient's injury constitutes [wrongful death / permanent and substantial physical deformity, loss of use of a limb, or loss of a bodily organ system / permanent physical or mental functional injury that permanently prevents Patient from being able to independently care for himself/herself and perform life-sustaining activities].

12.3. Plaintiff further reserves the right to demonstrate that any Defendant lacks the $1 million per-occurrence professional liability insurance required to invoke the noneconomic-damages cap under § 55-7B-8(d).

13. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully prays that this Court enter judgment against Defendants, jointly and severally where permitted by W. Va. Code § 55-7-13d and severally where required by § 55-7-13c, and award:

• A. Compensatory economic damages in an amount to be proven at trial;
• B. Noneconomic damages within the limits of W. Va. Code § 55-7B-8, as CPI-adjusted, including the catastrophic-injury cap where applicable;
• C. Pre-judgment and post-judgment interest as allowed by W. Va. Code § 56-6-31;
• D. Costs of this action, including expert-witness fees to the extent recoverable;
• E. Attorney's fees where authorized by statute or contract; and
• F. Such further relief as this Court deems just and proper.

14. DEMAND FOR TRIAL BY JURY

Plaintiff hereby demands a trial by jury on all issues so triable as a matter of right pursuant to W. Va. R. Civ. P. 38 and W. Va. Const. art. III, § 13.

15. RESERVATION OF RIGHTS

Plaintiff expressly reserves the right to amend this Complaint to assert additional claims, name additional parties, and seek additional relief as discovery may reveal, in accordance with W. Va. R. Civ. P. 15.

16. SIGNATURE AND SERVICE BLOCKS

Date: [DATE]

Respectfully submitted,

[PLAINTIFF NAME], Plaintiff,

By Counsel,

[________________________________]

[ATTORNEY NAME], W. Va. State Bar No. [####]

[LAW FIRM NAME]

[STREET ADDRESS]

[CITY, WV ZIP]

Telephone: [NUMBER]

Facsimile: [NUMBER]

Email: [EMAIL]

Counsel for Plaintiff

17. VERIFICATION

STATE OF WEST VIRGINIA

COUNTY OF [________________________________], to-wit:

I, [PLAINTIFF NAME], after first being duly sworn, depose and state that I am the Plaintiff in the foregoing Complaint; that I have read the Complaint and know the contents thereof; and that the matters and things set forth therein are true, except as to matters stated upon information and belief, and as to those, I believe them to be true.

[________________________________]

[PLAINTIFF NAME]

Taken, subscribed, and sworn to before me this [____] day of [_______________], 20[____].

[________________________________]

Notary Public

(My Commission Expires: [_______________])

18. CERTIFICATE OF SERVICE

I, [ATTORNEY NAME], counsel for Plaintiff, hereby certify that on this [____] day of [_______________], 20[____], I caused a true and correct copy of the foregoing VERIFIED COMPLAINT FOR MEDICAL PROFESSIONAL LIABILITY (with Exhibits A, B, and C) to be served upon the following Defendants pursuant to W. Va. R. Civ. P. 4 by [Sheriff / Secretary of State / certified mail / private process server]:

[SERVICE LIST WITH DEFENDANT NAMES AND ADDRESSES]

[________________________________]

[ATTORNEY NAME], W. Va. State Bar No. [####]

19. WEST VIRGINIA PRACTICE NOTES

• Pre-suit notice and certificate of merit (jurisdictional). W. Va. Code § 55-7B-6 requires a 30-day pre-suit Notice of Claim and a Screening Certificate of Merit, executed under oath by a qualified expert, served on each defendant before suit. Strict compliance is jurisdictional; non-compliant complaints are subject to dismissal. The notice tolls the statute of limitations for an additional 30 days where it is served within fewer than 30 days before expiration of the limitations period.
• Statute of limitations and repose. Two years from the date of injury or discovery, whichever is later, capped by a 10-year statute of repose, per § 55-7B-4. Minor-tolling and fraudulent-concealment exceptions exist. Nursing-home and certain long-term-care claims may be subject to a one-year statute of limitations under § 55-7B-4(b).
• Damage caps. Noneconomic damages are capped at $250,000 per occurrence (CPI-adjusted from January 1, 2004) under § 55-7B-8, or $500,000 per occurrence (CPI-adjusted) for catastrophic injury (wrongful death; permanent and substantial physical deformity, loss of use of a limb or bodily organ system; or permanent injury preventing independent self-care and life-sustaining activities). The cap is unavailable to a defendant lacking at least $1 million in professional liability insurance per occurrence (§ 55-7B-8(d)). Inflation cap is limited to 150% of the original amounts. Verify the current CPI-adjusted figures with the Office of the Insurance Commissioner.
• Trauma-care immunity. Treatment in a designated trauma center for emergent conditions is subject to additional limits under § 55-7B-9c (trauma-care actions). Investigate trauma-center designation and whether the emergency-care provisions apply.
• Comparative fault and several liability. Modified comparative fault under § 55-7-13a bars recovery if Plaintiff's fault exceeds 50%. Several liability under § 55-7-13c is the default; § 55-7-13d preserves joint-and-several liability for vicarious liability, concerted action, intentional torts, and certain other categories. Allocation must total exactly 0% or 100% (§ 55-7-13a(b)).
• Apology statute. W. Va. Code § 55-7-11a renders expressions of sympathy, apology, condolence, or benevolence inadmissible as admissions, although factual statements admitting fault remain admissible.
• Peer-review privilege. W. Va. Code § 30-3C-3 privileges peer-review records. Discovery requests must navigate the privilege carefully; expect motion practice.
• Government-employed providers. Claims involving WVU Health Sciences faculty, state hospitals, or correctional medical providers may implicate the Court of Claims, Public Employees Insurance Agency, or Board of Risk and Insurance Management. Pre-suit notice requirements under W. Va. Code § 55-17-3 may apply in addition to the MPLA notice.
• Common venues. Kanawha (Charleston / CAMC); Cabell (Huntington / Cabell Huntington Hospital and Marshall Health); Monongalia (Morgantown / WVU Medicine); Berkeley (Martinsburg / WVU Medicine East / Berkeley Medical Center); Ohio (Wheeling Hospital).

20. SOURCES AND REFERENCES

• W. Va. Code §§ 55-7B-1 through 55-7B-12 — Medical Professional Liability Act — https://code.wvlegislature.gov/55-7B/
• W. Va. Code § 55-7-11a — Expressions of sympathy / apology inadmissible — https://code.wvlegislature.gov/55-7-11a/
• W. Va. Code § 55-7-13a — Comparative fault (50% bar)
• W. Va. Code § 55-7-13c — Several liability default
• W. Va. Code § 55-7-13d — Joint and several liability exceptions
• W. Va. Code § 56-1-1 — Venue
• West Virginia Rules of Civil Procedure — http://www.courtswv.gov/legal-community/court-rules.html
• Hinchman v. Gillette, 217 W. Va. 378, 618 S.E.2d 387 (2005) — strict pre-suit compliance under § 55-7B-6
• Burless v. West Virginia University Hospitals, Inc., 215 W. Va. 765, 601 S.E.2d 85 (2004) — apparent agency
• Cross v. Trapp, 170 W. Va. 459, 294 S.E.2d 446 (1982) — informed consent
• Watts v. Lemieux, No. 21-0316 (W. Va. 2022) — constitutionality of MPLA cap
• Robinson v. Charleston Area Med. Ctr., 186 W. Va. 720 (1991) — early MPLA constitutionality
• W. Va. Office of the Insurance Commissioner — annual CPI-adjusted MPLA caps — https://www.wvinsurance.gov/

Disclaimer: This template is provided for informational purposes only and does not constitute legal advice. An attorney licensed in West Virginia must review and customize this document before filing. Statutes, case law, and CPI-adjusted damage caps change frequently; verify all authorities before use.