The West Virginia Legislature Should Allow an Expanded Statute of Limitations in Nursing Home Cases

The West Virginia Legislature Should Allow an Expanded Statute of Limitations in Nursing Home Cases

Until very recently, West Virginia applied a two-year statute of limitations to cases brought against nursing homes and other long-term care facilities. However, the Legislature amended the relevant statute so now nursing home cases must be “commenced within one year of the date of such injury, or within one year of the date when such person discovers, or with the exercise of reasonable diligence, should have discovered such injury, whichever last occurs.”  W. Va. Code §55-7B-4.

Of course, many individuals in a nursing home are long-term residents and this statutory amendment may place some in an impossible situation. We all know how difficult it can be to find placement in a quality nursing home for a family member. Because of that, a nursing home resident may now have to commence a lawsuit against a nursing home while still a resident at that very facility.

Fortunately, a common-sense solution already exists to cure this dilemma. In Ohio, medical negligence cases are generally subject to a one-year statute of limitations. However, Ohio courts have recognized the statute of limitations does not even begin to run until “the physician-patient relationship for that condition terminates.”  Frysinger v. Leech, 32 Ohio St. 3d 38 (1987). The purpose of this rule is clear. It gives the offending doctor a chance to fix his or her mistake, recognizing how difficult it can be for a patient to find one doctor to fix another’s problem.

The West Virginia Legislature should adopt the same rule in nursing home cases. W. Va. Code §55-7B-4 should be amended to extend the statute of limitations while a nursing home resident remains in the facility.

• Despite these statutory provisions, the analysis of the statute of limitations in a particular case depends entirely on its own facts.  If you believe you may have a case, please contact a lawyer immediately for advice.