West Virginia Nursing Home Abuse Laws
West Virginia’s Cap on Medical Malpractice Awards
In West Virginia there is no statutory cap on economic damages in claims for personal injury. However, In cases that involve medical malpractice, non-economic damages are subject to a $250,000.00 cap, which may be increased to $500,000.00 if the claimant suffers a catastrophic injury. The West Virginia Governmental Tort Claims and Insurance Reform Act caps non-economic damages at $500,000.00 for actions involving the State and its political subdivisions. There is no statutory cap on punitive damages.
There is no damage cap on claims for wrongful death. In West Virginia, a claimant may recover both compensatory and punitive damages in a wrongful death action. See §55-7-6(c); Bond v. City of Huntington, 276 S.E.2d 539 (W. Va. 1981). The recoverable losses in a wrongful death claim include but are not limited to:
- Sorrow, mental anguish, and solace.
- Compensation for reasonably expected loss of:
- Income of the decedent.
- Services, protection, care and assistance provided by the decedent.
- Expenses for the care, treatment and hospitalization of the decedent arising from the injury resulting in death.
- Reasonable funeral expenses. See §55-7-6(c)(1).
Statute of Limitations for Personal Injury and Wrongful Death
A statute of limitations is a law the limits the amount of time a person has to file a lawsuit. In West Virginia, the statute of limitations on personal injury claims is two years. See § 55-2-12. The statute of limitations for claims for wrongful death is also two years. See § 55-7-6.
In the vast majority of nursing home neglect and abuse cases are taken on a contingency fee basis. Under a contingency fee agreement, an attorney is paid a percentage of the recovery made for the client.
The West Virginia Rules of Professional Conduct require that an attorney’s contingent fee agreement is reasonable. Further, the agreement should be in writing and set forth how the fee is determined. The agreement should explicitly state the percentage the lawyer will be paid as well as other expenses to be deducted from the recovery. It should provide whether expenses are to be be made on the net or gross recovery.
West Virginia Nursing Home Regulations and Resident Rights
West Virginia law requires that nursing homes establish written policies and procedures regarding the rights and responsibilities of residents. It is the nursing home’s responsibility to ensure that each resident is afforded his or her rights. In addition, a copy the “resident rights” policy must be prominently displayed at the nursing home facility.
Federal and state law require that every nursing home facility promotes the Resident’s Bill of Rights. The law provides that nursing home residents have the right to be treated with dignity and respect, and to not be mistreated, neglected or abused. West Virginia Nursing homes have a duty to ensure that an individual comprehensive care plan is developed for each resident in accordance with periodic assessments. Nursing home residents have the right to proper care and treatment including services that meet their individualized needs, such as dietary, pharmaceutical, nursing and rehabilitation. Additionally, patients have a right to be involved in their care and be informed of their medical condition and significant changes to their medical condition.
How to Seek Help if a Senior’s Rights Are Violated
If a resident’s rights are violated, persons may file a complaint with the West Virginia nursing home long term care ombudsman, or in cases where the violation causes serious harm or death, consult with a nursing home abuse lawyer to take legal action.
Disclaimer: This article is for informational purposes only. It is not legal advice and should not be used as legal advice. The legal statutes, laws and procedures contained in this article may not be current and may have been revised since the time of publication or contain errors. An attorney can provide legal guidance only after reviewing the details of your individual case.
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