Health Care -
I. Civil Statute Protecting Dependent Adults or Elders from Neglect or Abuse: West Virginia Code § 16-5C-15 (providing a civil remedy for depravations of nursing home residents’ rights).
1. Any nursing home that deprives a resident of any right or benefit created or established for the well-being of this resident shall be liable to the resident for injuries suffered as a result of such deprivation. The right or benefit may be created or established by :
(a) By the terms of any contract;
(b) By any state statute or rule; or
(c) By any applicable federal statute or regulation.
2. Resident rights established by West Virginia Code of State Rules
(a) Each resident shall be free from mental and physical abuse, and free from chemical and physical restraints except when the restraint is authorized in writing by a physician for a specified and limited period of time, except under emergency circumstances.
(b) A resident has the right to be free from verbal, sexual, physical, and mental abuse, financial exploitation, discrimination, denial of privileges, corporal punishment and involuntary seclusion.
(c) The nursing home shall develop and implement written policies and procedures that prohibit neglect, abuse of residents, and misappropriation of resident property.
(d) A nursing home shall care for its residents in a manner and in an environment that promotes maintenance or enhancement of each resident’s quality of life.
(e) A resident has the right to reside and receive services in the nursing home with reasonable accommodations for individual needs and preferences, except when the health or safety of the person or other residents would be endangered.
(f) The nursing home shall provide medically-related social services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident.
B. Nursing Home Residents
1. Resident: an individual living in a nursing home.
2. Nursing home or facility:
(a) Any institution, residence or place, or any part or unit thereof, however named;
(b) In West Virginia;
(c) Which is advertised, offered, maintained or operated by the ownership or management, whether for a consideration or not;
(d) For the express or implied purpose of providing accommodations and care;
(e) For a period of more than twenty-four hours;
(i) Four or more persons who are ill or otherwise incapacitated and in need of extensive, ongoing nursing care due to physical or mental impairment; or
(ii) Which provides services for the rehabilitation of persons who are convalescing from illness or incapacitation.
C. Persons/Entities Excluded From Statute
1. Entities excluded from the definition of “nursing home”:
(a) The care or treatment in a household of a close relative;
(b) Nursing homes operated by the federal government;
(c) Extended care facilities operated in conjunction with a hospital;
(d) Institutions operated for the treatment and care of alcoholic patients;
(e) Offices of physicians;
(f) Hotels, boarding homes or other similar places that furnish to their guests only room and board; and
(g) Homes or asylums operated by fraternal orders.
2. Nursing homes that have exercised all care reasonably necessary to prevent and limit the deprivation and injury to the resident are not liable for compensatory damages. W. Va. Code § 16-5C-15(c).
D. Reporting Requirement for Litigation to State
1. However, at least thirty days prior to the filing of a medical professional liability action against a health care provider, the claimant is required to serve a notice of claim on each health care provider the claimant will join in litigation.
2. Further, if, after its investigation, the Secretary of the Department of Health and Human Resources determines that the complaint has merit, he is required to advise any injured party of the possibility of a civil remedy.
E. Preclusion of Arbitration:
Arbitration is not necessarily precluded.
1. Statutory Treatment of Waiver: Any waiver by a resident or his or her legal representative of the right to commence an action under this section, whether oral or in writing, is null and void as contrary to public policy.
2. Case law: “Congress did not intend for arbitration agreements, adopted prior to an occurrence of negligence that results in a personal injury or wrongful death, and which require questions about the negligence be submitted to arbitration, to be governed by the Federal Arbitration Act.” Brown v. Genesis Healthcare Corp., 228 W.Va. 646, 724 S.E.2d 250 (2011) (Syllabus Point 21). In accordance with Marmet Health Care Center, Inc. v. Brown, 132 S.Ct. 1201 (2012) (per curiam), the West Virginia Supreme Court overruled this syllabus point. Brown v. Genesis Healthcare Corp., 229 W. Va. 382, 385, 729 S.E.2d 217 (W. Va. 2012). Thus, “in an abundance of caution and with deference to the Supreme Court’s mandate that the arbitration clauses only be found unenforceable under state common law principles that are not specific to arbitration, we determine that the fairest route is to reverse the circuit courts’ prior orders and permit the parties to develop the evidence.” Id.
F. Relationship to Medical Malpractice actions
Per a recent amendment to West Virginia Code § 16-5C-15 (see Part III below), the provisions of the Medical Professional Liability Act (§ 55-7b-1, et seq.) are applicable to claims brought by nursing home residents under West Virginia Code § 16-5C-15.
G. Criminal Provision: Abuse or neglect of incapacitated adult.
W. Va. Code § 61-2-29.
1. A caregiver who neglects an incapacitated adult or who knowingly permits another person to neglect an incapacitated adult is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $100 nor more than $500 or confined in jail for not more than one year, or both fined and confined.
2. A caregiver who abuses an incapacitated adult or who knowingly permits another person to abuse an incapacitated adult is guilty of a misdemeanor and, upon conviction thereof, shall be fined not less than $ 100 nor more than $500 or confined in jail for not less than ninety days nor more than one year, or both fined and confined.
3. A caregiver of an incapacitated adult who intentionally and maliciously abuses or neglects an incapacitated adult and causes the incapacitated adult bodily injury is guilty of a felony and, upon conviction thereof, shall be fined not less than $ 100 nor more than $ 1,000 and imprisoned in a state correctional facility not less than two years nor more than ten years.
4. A caregiver of an incapacitated adult who intentionally and maliciously abuses or neglects an incapacitated adult and causes the incapacitated adult serious bodily injury is guilty of a felony and, upon conviction thereof, shall be fined not less than $ 1,000 nor more than $ 5,000 and imprisoned in a state correctional facility not less than three years nor more than fifteen years.
(a) Caregiver: any person who has assumed the legal responsibility or a contractual obligation for the care of an incapacitated adult, or has voluntarily assumed responsibility for the care of an incapacitated adult. The term includes a facility operated by any public or private agency, organization or institution which provides services to, and has assumed responsibility for the care of an incapacitated adult.
(b) Abuse: the intentional infliction of bodily injury on an incapacitated adult;
(c) Neglect: the unreasonable failure by a caregiver to provide the care necessary to assure the physical safety or health of an incapacitated adult;
(d) Incapacitated adult: any person eighteen years of age or older who by reason of advanced age, physical, mental or other infirmity is unable to carry on the daily activities of life necessary to sustaining life and reasonable health.
6. Interplay with State Civil Statute?
The statutes and case law do not specify.
H. Statute of Limitations:
Two years for cause of action for injury to a person alleging medical professional liability. W. Va. Code § 55-7B-4(a).
I. Burden of Proof: W. Va. Code § 55-7B-3.
1. Necessary elements of proof that an injury or death resulted from the failure of a health care provider to follow the accepted standard of care:
(a) The health care provider failed to exercise that degree of care, skill and learning required or expected of a reasonable, prudent health care provider in the profession or class to which the health care provider belongs acting in the same or similar circumstances; and
(b) Such failure was a proximate cause of the injury or death.
2. Necessary elements for “loss of chance” theory (health care provider’s failure to follow the accepted standard of care deprived the patient of a chance of recovery or increased the risk of harm to the patient which was a substantial factor in bringing about the ultimate injury to the patient):
(a) Plaintiff must also prove, to a reasonable degree of medical probability, that following the accepted standard of care would have resulted in a greater than twenty-five percent chance that the patient would have had an improved recovery or would have survived.
J. Can Regulations Establish Standard of Care:
Yes. W. Va. Code § 16-5C-5.
A. Damages Available
1. Actual/Compensatory Damages
2. Punitive Damages
3. Injunctive Relief
B. Does Pain and Suffering of Decedent/Resident Survive Death:
Yes. “West Virginia Code § 55-7-8 (1989) authorizes the decedent’s beneficiaries to recover damages for a decedent’s pain and suffering incurred between the time of injury and the time of death where the decedent had instituted an action for personal injury prior to his death and the action was revived and amended pursuant to West Virginia Code §§ 55-7-8 and 55-7-6 (1989).” Mack-Evans v. Hilltop Healthcare Ctr., 226 W. Va. 257, 271, 700 S.E.2d 317 (2010) (quoting Estate of Helmick by Fox v. Martin, 188 W. Va. 559, 425 S.E.2d 235 (1992)).
C. Attorney’s Fees Available: No.
1. If available, are the attorney’s fees limited? N/A
III. LEGISLATION AFFECTING STATUTE
A. Pending: 2013 W. Va. Acts 142.
1. Added Provisions:
(a) Nothing in this section or any other section of the code shall limit the protections afforded nursing homes or their health care providers under W. Va. Code 55-7b.
(b) The amendments to this section enacted during the 2013 Regular Session of the Legislature shall be effective July 1, 2013: Provided, that there shall be no inference, either positive or negative, to any legal action pending pursuant to this section as of July 1, 2013. The amendments to this section in 2013 are not in any way intended to modify, change, expand or contract the Medical Professional Liability Act. The proper construction of this section and the limitations and provisions of W. Va. Code 55-7b shall be determined by principles of statutory construction.
B. Anticipated: None.
IV. Civil Statute Imposing Duty to Report Neglect or Abuse of the Elderly: West Virginia Code § 9-6-1.
A. Neglect: The unreasonable failure by a caregiver to provide the care necessary to assure the physical safety or health of an incapacitated adult; or the unlawful expenditure or willful dissipation of the funds or other assets owned or paid to or for the benefit of an incapacitated adult or resident. W. Va. Code § 9-6-1(3).
1. Caretaker: a person or entity who cares for or shares in the responsibility for the care of an incapacitated adult on a full-time or temporary basis, regardless of whether such person or entity has been designated as a guardian or custodian of the incapacitated adult by any contract, agreement or legal procedures. Caregiver includes health care providers, family members, and any person who otherwise voluntarily accepts a supervisory role towards an incapacitated adult. W. Va. Code § 9-6-1(13).
B. Abuse: The infliction or threat to inflict physical pain or injury on or the imprisonment of any incapacitated adult or facility resident. W. Va. Code § 9-6-1(2).
C. Duty to Report: If any medical, dental or mental health professional, Christian Science practitioner, religious healer, social service worker, law-enforcement officer, humane officer, state or regional ombudsman or any employee of any nursing home or other residential facility has reasonable cause to believe that an incapacitated adult or facility resident is or has been neglected, abused or placed in an emergency situation, or if such person observes an incapacitated adult or facility resident being subjected to conditions that are likely to result in abuse, neglect or an emergency situation, the person shall immediately report the circumstances. W. Va. Code § 9-6-9(a).
D. Criminal Penalty for Failure to Report: Any person subject to the mandatory reporting provisions of this article who knowingly fails to make any report required herein or any person who knowingly prevents another person from making such a report is guilty of a misdemeanor, and, upon conviction thereof, shall be fined not more than one hundred dollars or imprisoned in the county jail for not more than ten days, or both fined and imprisoned. W. Va. Code § 9-6-14.
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 W. Va. Code § 16-5C-15(c). A similar cause of action exists for residents of assisted living facilities under W. Va. Code § 16-5D-15(c).
 Chapter 64 Series 13 of the West Virginia Code of State Rules contains a number of rights afforded to nursing home residents. Only the most relevant are included here.
 W. Va. CSR § 64-13-4.16.a.
 W. Va. CSR § 64-13-4.16.c.1.
 W. Va. CSR § 64-13-4.16.c.2.A.
 W. Va. CSR § 64-13-5.1.
 W. Va. CSR § 64-13-5.9.a.
 W. Va. CSR § 64-13-5.11.a.
 W. Va. Code § 16-5C-2(e), (g).
 W. Va. Code § 55-7B-6. Per a recent amendment to West Virginia Code § 16-5C-15 (see Part III below), the provisions of the Medical Professional Liability Act (§ 55-7b-1, et seq.) are applicable to claims brought by nursing home residents.
 W. Va. Code § 16-5C-8(b).
 W. Va. Code § 16-5C-15(c).
 W. Va. Code § 61-2-29a criminalizes death of an incapacitated adult by a caregiver.
 Per a recent amendment to West Virginia Code § 16-5C-15 (see Part III below), the provisions of the Medical Professional Liability Act (§ 55-7b-1, et seq.) are applicable to claims brought by nursing home residents
 W. Va. Code § 16-5C-15(c).
 Compensatory damages for noneconomic loss are capped. W. Va. Code § 55-7B-8,