West Virginia Cerebral Palsy Lawsuit Filing Process

Fact Checked

If you have a child diagnosed with cerebral palsy, you have the legal right to file a lawsuit for both medical malpractice and, if needed, discrimination. Gain a better understanding of the West Virginia cerebral palsy lawsuit filing process and the state laws that govern it. You also need the right West Virginia lawyer experienced with cerebral palsy clients to guide you through it.

What Kind of Lawsuit Can I File in West Virginia for My Child with Cerebral Palsy?

A child with cerebral palsy may have suffered at the hands of a medical professional. They could also go through discrimination in the future. These situations are typically why parents file a cerebral palsy lawsuit.

Medical Malpractice Lawsuits

You may suspect your child wouldn’t be disabled if it weren’t for negligent medical mistakes. When any medical professional fails to provide an adequate standard of care, resulting in harm to the patient, it is considered malpractice.

A medical malpractice lawsuit can be filed according to the steps outlined by West Virginia law. While the process doesn’t always favor victims, it is possible to get justice for the harm caused to your child and to recover damages that will help pay for treatments and care.

Discrimination Complaints and Lawsuits

As your child gets older, your family may experience discrimination. West Virginia and federal laws prohibit discrimination by disability, and you can take legal action if it happens to your family and your child.[1]

State law covers discrimination in public places and housing. Federal laws ensure your child gets a free and appropriate education.[2]

Filing a complaint or lawsuit can help you resolve any situations of discrimination, improve access, and ensure better services for your child.

What Kind of Lawyer Do I Need to File a Cerebral Palsy Lawsuit?

Hiring the best lawyer is one of the most important things you can do to win your case. In a medical malpractice case, you’ll likely go against teams of lawyers from doctors’ insurance companies.

In discrimination cases, you have to navigate the complicated bureaucracy of the government.

In either case, you will have a much better chance of success if you rely on the right legal expert. Look for a lawyer or firm specializing in disabilities, cerebral palsy and birth injuries, discrimination, and medical malpractice.

A general practice lawyer usually does not have the right experience or depth of knowledge to navigate these complicated lawsuits.

How Do I File a Cerebral Palsy Medical Malpractice Lawsuit in West Virginia?

Every state has laws regarding how to file and proceed with a medical malpractice lawsuit. The more you know about these laws in West Virginia, the easier the process will be.

Even with an experienced lawyer to help you, some background knowledge is helpful to make informed decisions.

• Statute of Limitations. West Virginia’s statute of limitations on malpractice cases is two years from the incident or two years from when you realized an incident harmed your child. The burden of proof falls on you to show you couldn’t have discovered it sooner. You cannot file more than ten years from the incident, even with the discovery rule. For a minor, the time limit can be extended to their 12th birthday.[3]

• Determining Damages. It is helpful to know what to expect in terms of recovering damages, but keep in mind that your attorney can only give a ballpark figure. Provide all the relevant medical bills, records, and related expenses. West Virginia caps noneconomic damages at $250,000 per incident, adjusted annually for inflation with a maximum of $375,000. These limits rise to $500,000 and $750,000 for certain catastrophic injuries.[4]

• Filing and Notifying Defendants. Your lawyer can file the lawsuit for you, which means submitting a document detailing your medical negligence and malpractice allegations. Within 30 days of doing this, you must also notify all the defendants named in the filing.

• Certificate of Merit. West Virginia also requires that you submit a certificate of merit with your filing. You must have a qualified medical expert review your case and sign this document indicating that negligence likely occurred.[5]

• Settlement Negotiations. Once you have cleared the above hurdles, your lawyer might recommend seeking an out-of-court settlement. The defendants may agree to negotiate, and your lawyer will try to get you a fair amount. You have the final decision to accept or reject offers.

• Trial. If you cannot agree on a fair settlement, your case can go to court. Your lawyer will represent you, present the evidence for negligence, and bring experts to testify. A jury will decide will ultimately decide the outcome of your case.

How Do I File a Discrimination Complaint or Lawsuit?

West Virginia allows you to file a private lawsuit to resolve an incident of discrimination and try to recover damages. However, you will probably first go through a government agency in most cases.

You will file a complaint with the West Virginia Human Rights Commission for housing and public accommodations issues.[6]

• You have 365 days to file an official complaint in person or over the phone.
• A Commission investigator will look into the incident and your allegations.
• The investigator will decide whether there is evidence of discrimination.
• If decided in your favor, you next go through a conciliation process to resolve and settle the situation with those you are accusing.
• If the conciliation fails, you will have a public hearing.
• The judge in the hearing will give a final decision, but you do have the right to appeal it.

You can also file a private lawsuit in these situations. And, for any issues in education, such as not getting adequate special education services, your lawyer will help you file a complaint with the federal government.

Filing a lawsuit on behalf of your child with cerebral palsy can seem intimidating, but you’ll be better prepared when you understand the process.

Find the right lawyer, and together, you can win a better future for your child.