March 8, 2013

162017_132140396847214_292624_nOn March 6, 2013, the West Virginia Senate passed a bill that would limit (cap) the amount that West Virginia nursing homes would be responsible to pay for injuries caused to residents through their negligence, by expressly including nursing homes under the West Virginia Medical Professionals Liability Act (“the Act”) that was enacted in 2003 and limits non-economic damages to $500,000 for health care providers (the Act defined nursing homes as “health care facilities” but it was unclear if they were “health care providers” as defined under the Act).

The Act states that a “Health care provider” means a person, partnership, corporation, professional limited liability company, health care facility or institution licensed by, or certified in, this state or another state, to provide health care or professional health care services, including, but not limited to, a physician, osteopathic physician, hospital, dentist, registered or licensed practical nurse, optometrist, podiatrist, chiropractor, physical therapist, psychologist, emergency medical services authority or agency, or an officer, employee or agent thereof acting in the course and scope of such officer’s, employee’s or agent’s employment. [Notice that “nursing home” is not listed within the examples of “health care provider”] Source

The Act states that a “Health care facility” means any clinic, hospital, nursing home or assisted living facility, including personal care home, residential care community and residential board and care home, or behavioral health care facility or comprehensive community mental health/mental retardation center, in and licensed by the State of West Virginia and any state-operated institution or clinic providing health care. [A nursing home is expressly stated to be a “health care facility”] Source

The stated purpose of West Virginia Senate Bill No. 24 is “to clarify that the Legislature originally intended that all actions brought against a nursing home are subject to all the limitations and provisions set forth in the Medical Professional Liability Act.”  Senate Bill No. 24 would amend §16-5C-15 of the Code of West Virginia (ARTICLE 5C. NURSING HOMES.) as follows, in part:

[Strike-throughs indicate language that would be stricken from the present law, and underscoring indicates new language that would be added.]

(c) Any nursing home that deprives a resident of any right or benefit created or established for the well-being of this resident by the terms of any contract, by any state statute or rule, or by any applicable federal statute or regulation, shall be is liable to the resident for injuries suffered as a result of such the deprivation. Upon a finding that a resident has been deprived of such a right or benefit, and that the resident has been injured as a result of such deprivation, and unless there is a finding that the nursing home exercised all care reasonably necessary to prevent and limit the deprivation and injury to the resident, compensatory damages shall be assessed in an amount sufficient to compensate the resident for such injury. An action brought under this subsection is subject to the limitations and provisions of article seven-b, chapter fifty-five of this code. In addition, where the deprivation of any such the right or benefit is found to have been willful or in reckless disregard of the lawful rights of the resident, punitive damages may be assessed. A resident may also maintain an action pursuant to this section for any other type of relief, including injunctive and declaratory relief, permitted by law. Exhaustion of any available administrative remedies may is not be required prior to commencement of a suit hereunder under this subsection.


The West Virginia statutory limit on non-economic damages in medical malpractice cases (§55-7B-8. Limit on liability for noneconomic loss.) states as follows:

a) In any professional liability action brought against a health care provider pursuant to this article, the maximum amount recoverable as compensatory damages for noneconomic loss shall not exceed two hundred fifty thousand dollars per occurrence, regardless of the number of plaintiffs or the number of defendants or, in the case of wrongful death, regardless of the number of distributees, except as provided in subsection (b) of this section.

(b) The plaintiff may recover compensatory damages for noneconomic loss in excess of the limitation described in subsection (a) of this section, but not in excess of five hundred thousand dollars for each occurrence, regardless of the number of plaintiffs or the number of defendants or, in the case of wrongful death, regardless of the number of distributees, where the damages for noneconomic losses suffered by the plaintiff were 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.

(c) On the first of January, two thousand four, and in each year thereafter, the limitation for compensatory damages contained in subsections (a) and (b) of this section shall increase to account for inflation by an amount equal to the consumer price index published by the United States department of labor, up to fifty percent of the amounts specified in subsections (b) and (c) as a limitation of compensatory noneconomic damages.

(d) The limitations on noneconomic damages contained in subsections (a), (b), (c) and (e) of this section are not available to any defendant in an action pursuant to this article which does not have medical professional liability insurance in the amount of at least one million dollars per occurrence covering the medical injury which is the subject of the action.

(e) If subsection (a) or (b) of this section, as enacted during the regular session of the Legislature, two thousand three, or the application thereof to any person or circumstance, is found by a court of law to be unconstitutional or otherwise invalid, the maximum amount recoverable as damages for noneconomic loss in a professional liability action brought against a health care provider under this article shall thereafter not exceed one million dollars.


If you were injured as a result of nursing home negligence, nursing home neglect, or nursing home abuse in West Virginia or in another state in the U.S., you should promptly seek the advice of a West Virginia nursing home claim attorney or a nursing home claim attorney in your state who may agree to investigate your nursing home claim for you and represent you in a nursing home case, if appropriate.

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