Birth injuries
At Tabor Lindsay & Associates, PLLC, we recognize that pregnancy and childbirth are typically joyous occasions for families, marking the thrilling arrival of a new member into their lives. However, amidst this celebration, it is important to remain vigilant, as medical errors during pregnancy and delivery can go unnoticed until they manifest as health complications in the newborn. According to HealthGrades, the annual incidence of birth injuries stands at approximately 28,000 cases, with potential consequences that may lead to lifelong physical impairments. If you suspect that your child or a loved one has suffered a birth injury due to medical negligence, we invite you to reach out to our experienced team in Charleston, West Virginia. We are dedicated to providing a thorough consultation to explore your situation and discuss potential paths to address the impact of these unfortunate events. Your family's well-being is our priority, and we are here to guide you through this challenging process. Contact us in Charleston, West Virginia, to schedule a consultation regarding any birth injury your child or a loved one’s child may have suffered.
Understanding Birth Injuries: A Professional Insight
Birth injuries refer to physical harm sustained by either the mother or the infant during pregnancy, labor, or delivery. These injuries can result in significant and lasting neurological impairments, particularly in infants, leading to a variety of physical and cognitive challenges. Neurological damage may arise from factors such as insufficient oxygen supply or trauma during the birthing process.
The consequences can include disabilities and psychological concerns that affect the child's development. It is important to note that families are often not informed of the specific causes of their child's injuries by healthcare providers, including doctors, midwives, and hospitals. When it is determined that neurological damage may have resulted from medical negligence during the birth process, it is crucial to seek expert guidance. At Tabor Lindsay & Associates, PLLC, our team, comprised of attorneys with medical backgrounds, is dedicated to uncovering the root causes of birth-related injuries. We specialize in cases involving Erb’s Palsy, Cerebral Palsy, and brain damage, and we are committed to ensuring that families receive the justice and support they deserve.
ERB’s Palsy
Erb's Palsy is a condition that can result from physical injury during delivery, with its impact varying widely from mild to severe based on the extent of nerve damage. This condition arises when the nerves in the upper arm of the infant are compromised, affecting approximately one to two out of every 1,000 births. Specifically, it is associated with lesions in the brachial plexus, a network of nerves located in the neck that controls movement in the arm, hand, and fingers. One common scenario that can lead to Erb's Palsy is shoulder dystocia, which may occur in challenging births, particularly when excessive traction is applied to the baby's shoulders.
Consequently, infants may exhibit limited mobility in the shoulder or upper arm, while still being able to move their fingers, which can give the appearance of paralysis in the affected limb. The degree of severity of the nerve injury plays a crucial role in determining the potential for recovery. Instances of excessive pulling during delivery, particularly with larger infants, increase the risk for developing this condition. It is essential to acknowledge that while Erb's Palsy can present significant challenges, proactive medical interventions and therapeutic strategies can enhance recovery outcomes for affected infants.
Results from a lesion in an area of the neck at the brachial plexus that gives movement to the arm, hand, and fingers
Often caused by shoulder dystocia during a difficult birth Infants are unable to move the shoulder or upper arm but can wiggle fingers It looks like the arm is paralyzed
The level of severity determines how well the infant recovers
Occurs during excessive pulling on the shoulders at delivery when the baby is disproportionately bigger than the birth canal
Identifying ERB’s Palsy in Your Child
ERB’s Palsy is a form of paralysis affecting the arm, typically resulting from an injury to the brachial plexus—a crucial network of nerves extending from the spine to the hand. This condition may arise due to accidents or lapses in medical care during childbirth. To determine if your child may have ERB’s Palsy, look for specific signs and symptoms, which can include:
Limitation of movement in the affected arm, which may be observed as a limp posture held close to the body with the elbow bent.
A noticeable decrease in grip strength on the affected side. - Signs of partial or complete paralysis.
Loss of sensory and motor function in the upper arm.
Numbness in the arm.
Impaired development of circulatory, muscular, and nervous functions.
If you suspect your child may have ERB’s Palsy, seeking an evaluation from a medical professional is essential. Early intervention can significantly improve outcomes and support your child's development.
Cerebral Palsy (C.P.)
Cerebral Palsy (C.P.) is a comprehensive term used to describe a range of motor function impairments. This condition is characterized by its permanent and non-progressive nature, which stems from compromised muscle coordination—often referred to as spastic paralysis—resulting from brain injury sustained before or during the birthing process. There are instances where Cerebral Palsy may be attributed to medical negligence. Such circumstances can include:
C.P. Caused by Medical Negligence
Entanglement or umbilical cord
Entrapment in the birth canal (baby too large or improperly positioned)
Undetected to improperly treated infections during pregnancy
The baby was in fetal distress, but the medical staff did not perform
Cesarean Section Birth trauma
Lack of oxygen (hypoxia) Forceps assisted delivery
Unnecessary use of vacuum
Symptoms, Diagnosis, Treatment, and Pathology of C.P.
What Qualifies as a Birth Injury Under West Virginia Law?
A birth injury is distinct from a congenital birth defect. While birth defects typically develop during early pregnancy due to genetic or environmental factors, a birth injury is physical harm sustained by the infant or mother during labor, delivery, or immediately postpartum—often resulting from preventable medical oversight or mechanical trauma.
Under the West Virginia Medical Professional Liability Act (W. Va. Code § 55-7B), our legal team establishes liability by demonstrating that:
The medical team owed a duty of care to the mother and fetus.
The obstetrician, midwife, nurse, or hospital breached the recognized medical standard of care during prenatal management, labor, or delivery.
The failure directly caused preventable oxygen deprivation, physical trauma, or neurological injury.
The child or family suffered measurable economic and non-economic damages.
Risk Factors for Cerebral Palsy
Risk Factors can be divided by period into antenatal, perinatal, and postnatal factors. The majority of the risk occurs in the antenatal period. Prematurity is a significant risk factor, predisposing to periventricular leukomalacia (PVL) development. Prudent obstetrical care, with the management of preeclampsia (magnesium), infections (antibiotics), and preterm labor (corticosteroids), can help reduce the risk of C.P.
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When healthcare professionals fail to provide proper care, the results can be devastating. Our attorneys help victims of medical negligence pursue justice and compensation for injuries caused by errors, misdiagnoses, or improper treatment.
Birth Injury
A birth injury can change a family’s life forever. We stand beside parents and children affected by medical negligence during childbirth, helping them obtain the support and compensation they deserve for lifelong care and recovery.
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When negligence leads to the loss of a loved one, families deserve answers and accountability. Our firm provides compassionate legal guidance to help you seek justice and financial relief during one of life’s most difficult times.
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From car accidents to slip-and-fall injuries, we fight to protect your rights and ensure you’re fairly compensated for medical bills, lost wages, and pain and suffering. You focus on healing — we’ll handle the rest.
Frequently Asked Questions
How do I know if my baby's condition was caused by a medical error?
Warning signs of labor and delivery negligence include an emergency C-section performed after hours of labor arrest, low APGAR scores (below 5 at 5 and 10 minutes), immediate resuscitation or intubation in the delivery room, infant seizures within the first 24–48 hours, emergency transfer to a Level III/IV NICU, or cooling therapy (therapeutic hypothermia) administered for brain swelling.
How do I know whether my child’s injury may have resulted from medical negligence?
Families are not always given a clear explanation for why a birth injury occurred. Tabor Lindsay & Associates emphasizes investigating the circumstances surrounding pregnancy, labor, and delivery to determine whether medical negligence may have played a role.
Why can an attorney with a medical background be helpful in a birth injury case?
Tabor Lindsay & Associates specifically highlights that its attorneys have medical backgrounds. That medical knowledge can help the firm understand the medical circumstances surrounding a birth-related injury and investigate whether the care provided may have contributed to the child’s condition.
How are birth injury settlements managed for a minor child?
In West Virginia, settlements involving minor children require formal circuit court approval to ensure the agreement is in the child's best interests. Funds are typically structured through secure annuities, court-supervised accounts, or Special Needs Trusts (SNT) that preserve your child's eligibility for Medicaid, SSI, and government support programs while providing lifelong funds for medical and living care.
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Tabor Lindsay & Associates, PLLC stands with West Virginians facing the aftermath of medical negligence — when families feel overwhelmed, dismissed, or shut out by powerful institutions. We are doctor-lawyers.
That means we don’t just “review records.” We understand how medical decisions are made, where standards of care matter most, and how preventable mistakes can change a life. We’ll explain what happened in plain language, then fight relentlessly for truth, accountability, and justice.
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Medical Malpractice Statute of Limitations in West Virginia
Medical Malpractice Statute of Limitations in West Virginia
Medical malpractice claims have strict filing deadlines. Waiting too long can prevent an injured patient or family from pursuing a claim, even when evidence of medical negligence exists.
The West Virginia medical malpractice statute of limitations generally requires a claim against most healthcare providers to be commenced within two years of the medical injury or death, or within two years of when the injury was discovered or reasonably should have been discovered, whichever occurs later. West Virginia law also generally prevents these claims from being filed more than 10 years after the medical injury, subject to specific exceptions.
Key Takeaways
Most West Virginia medical malpractice claims must be filed within two years of the injury or its discovery, whichever is later, and generally no more than 10 years after the injury occurred.
Claims against nursing homes, assisted living facilities, and certain skilled or intermediate-care hospital units generally carry a shorter one-year deadline, subject to the same 10-year outside limit.
Children under 10 at the time of injury get extra time: a claim must generally be filed within two years of the injury or before the child's 12th birthday, whichever is longer.
Fraud or concealment of material facts by a healthcare provider can toll the limitations period under §55-7B-4.
A notice of claim with a screening certificate of merit generally must be served at least 30 days before filing suit, and mailing it can toll the statute of limitations.
What Is the Medical Malpractice Statute of Limitations in West Virginia?
West Virginia Code §55-7B-4 governs filing deadlines for medical professional liability claims.
For most claims against healthcare providers, the law establishes a two-year statute of limitations. The two-year period may run from:
The date of the medical injury or death; or
The date the patient discovered, or through reasonable diligence should have discovered, the medical injury.
The statute uses whichever of those dates occurs later, while generally imposing a 10-year outside limit from the date of the medical injury.
The exact deadline can therefore depend on both when the medical injury occurred and when the patient knew or reasonably should have known that an injury had occurred.
How Does the Discovery Rule Affect the Deadline?
Not every medical injury becomes apparent immediately.
A patient may experience symptoms months after treatment or may not initially know that a medical condition was connected to earlier care.
West Virginia's statute addresses this by allowing the limitations period to run from the date the medical injury was discovered or reasonably should have been discovered when that date occurs later than the injury itself.
Determining when an injury reasonably should have been discovered can become an important issue when the alleged malpractice involves a delayed diagnosis, an undisclosed complication, or an injury that was not immediately apparent.
Is There a 10-Year Limit on Medical Malpractice Claims?
For most medical malpractice claims covered by §55-7B-4(a), West Virginia law states that an action generally may not be commenced more than 10 years after the date of the medical injury.
This outside limit is separate from the two-year limitations period.
A patient who discovers an injury several years after treatment may still have questions concerning when the two-year discovery period began and whether the 10-year limitation affects the claim.
The statute also contains provisions that can affect these periods in certain circumstances, including concealment or misrepresentation of material facts.
Are the Deadlines Different for Nursing Homes and Assisted Living Facilities?
Yes.
West Virginia law establishes a different limitations period for certain medical professional liability claims against:
Nursing homes
Assisted living facilities
Their related entities or employees
Certain portions of acute care hospitals providing intermediate or skilled nursing care
For these claims, the statute generally requires an action to be commenced within one year of the medical injury or within one year of when the injury or death was discovered or reasonably should have been discovered, whichever occurs later.
These claims are also generally subject to a 10-year outside limit.
Does West Virginia Have a Different Deadline for Injured Children?
West Virginia law contains a specific provision for children who were under 10 years old at the time of the medical injury.
A claim brought by or on behalf of such a minor must generally be commenced within two years of the injury or before the child's 12th birthday, whichever provides the longer period.
What If a Healthcare Provider Concealed the Injury?
West Virginia's medical malpractice statute also addresses fraud or concealment.
The limitations periods established under §55-7B-4 are tolled during any period in which a healthcare provider or its representative committed fraud or collusion by concealing or misrepresenting material facts concerning the injury.
Whether conduct meets this statutory requirement depends on the specific facts surrounding the medical treatment and the information provided to the patient.
Does Filing a Medical Malpractice Claim Require Advance Notice?
West Virginia medical malpractice cases have requirements that generally must be completed before a lawsuit is filed.
Under West Virginia Code §55-7B-6, a claimant generally must serve each healthcare provider who will be included in the lawsuit with a notice of claim at least 30 days before filing the action. The notice generally must describe the theory of liability and include a screening certificate of merit from a qualified healthcare provider.
The screening certificate typically addresses:
The applicable standard of care
The expert's qualifications
How the standard of care was allegedly breached
How the breach resulted in injury or death
The medical records and information reviewed
West Virginia law contains specific exceptions and procedures concerning these requirements.
Can the Notice of Claim Affect the Statute of Limitations?
Yes.
For most medical professional liability claims, West Virginia Code §55-7B-6 provides for tolling of the applicable statute of limitations after a notice of claim is mailed.
The duration of the tolling period can depend on the healthcare provider's response and whether pre-litigation mediation occurs. Different tolling provisions apply to claims involving nursing homes, assisted living facilities, and certain skilled or intermediate-care facilities.
These provisions make the timing of the pre-suit process an important part of determining whether a medical malpractice action was filed within the applicable period.
Why the Date of Injury Is Not Always the Only Important Date
A medical malpractice case may involve several dates that affect the limitations analysis, including:
The date the medical treatment occurred
The date the injury occurred
The date symptoms became apparent
The date the injury was diagnosed
The date the patient learned the injury may have resulted from medical care
The date a notice of claim was served
The applicable statute of limitations depends on the facts of the case and the provisions of West Virginia law that apply to the healthcare provider and patient involved.
Statute of Limitations at a Glance
The table below summarizes the primary filing deadlines discussed in this article for quick reference. It does not replace a case-specific legal evaluation.
Medical Malpractice Deadlines in Charleston, WV
For many medical malpractice cases involving physicians, hospitals, and other healthcare providers in Charleston and throughout West Virginia, the general limitations period is two years, subject to the discovery rule and other statutory provisions.
Claims involving nursing homes or assisted living facilities can have a shorter one-year period, while special provisions may apply to young children and cases involving concealment of an injury.
Tabor Lindsay & Associates, PLLC represents patients and families in serious medical malpractice matters throughout West Virginia. The firm was founded by Dr. Pamela Tabor Lindsay, a registered nurse and medical doctor who also holds a Master of Public Health and a Doctorate in Health Science. That clinical background, combined with her legal training, anchors the firm's doctor-lawyer team, which brings both medical and legal experience to the evaluation of complicated medical injury claims — including the record review and treatment-timeline analysis often needed to pinpoint when a limitations period began to run.
Speak With a Medical Malpractice Attorney in Charleston, WV
The deadline for a medical malpractice claim can depend on when the injury occurred, when it was discovered, the type of healthcare provider involved, and whether any statutory exceptions or tolling provisions apply.
Frequently Asked Questions
What is the basic deadline for filing a medical malpractice claim in West Virginia?
For most claims against healthcare providers, West Virginia Code §55-7B-4 sets a two-year deadline that runs from the date of the medical injury or death, or from the date the injury was discovered or reasonably should have been discovered, whichever is later. Claims are also generally subject to a 10-year outside limit from the date of the medical injury.
Does the statute of limitations differ for nursing home or assisted living claims?
Yes. Claims against nursing homes, assisted living facilities, their related entities or employees, and certain skilled or intermediate-care units of acute care hospitals generally must be filed within one year of the injury or its discovery, whichever is later, subject to the same 10-year outside limit.
Is there extra time to file a claim on behalf of an injured child?
West Virginia law provides additional time for children who were under 10 years old at the time of the medical injury. A claim on the child's behalf must generally be filed within two years of the injury or before the child's 12th birthday, whichever period is longer.
Can concealment of a medical injury extend the filing deadline?
It can. Under §55-7B-4, the limitations period is tolled for any period during which a healthcare provider or its representative committed fraud or collusion by concealing or misrepresenting material facts about the injury.
Do I need to do anything before filing a medical malpractice lawsuit in West Virginia?
Yes. Under West Virginia Code §55-7B-6, a claimant generally must serve each healthcare provider with a notice of claim, including a screening certificate of merit, at least 30 days before filing suit. Mailing that notice can also toll the applicable statute of limitations, which makes the pre-suit process an important part of the overall timeline.
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