W. Va. Code » §55-7B-3. Elements of proof.
West Virginia Code

W. Va. Code § 55-7B-3 (2026)

Elements of proof

✓ current as of May 2026
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ARTICLE 7B. MEDICAL PROFESSIONAL LIABILITY.

§55-7B-3. Elements of proof.

(a) The following are 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:

(1) 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

(2) Such failure was a proximate cause of the injury or death.

(b) If the plaintiff proceeds on the "loss of chance" theory, i.e., that the 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, the 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.

Notes of Decisions
Cited in 39 cases (7 in the last 5 years), 1991–2026 · leading case: Blankenship v. Ethicon, Inc., 656 S.E.2d 451 (W. Va. 2007).
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Blankenship v. Ethicon, Inc., 656 S.E.2d 451 (W. Va. 2007). · cites it 12× “The circuit court then ruled that the plaintiffs' failure to provide a "Notice of Claim" and "Screening Certificate of Merit" as required by the MPLA, and their additional failure to plead mandatory elements of an MPLA action as set forth in W.”
Osborne v. United States, 567 S.E.2d 677 (W. Va. 2002). · cites it 12× “However, in order to maintain such a third party action under the MPLA, the plaintiff must establish the elements of proof contained in W.Va.Code § 55-7B-3 (1986) (Repl.Vol.2000).”
Walker v. Sharma, 655 S.E.2d 775 (W. Va. 2007). · cites it 16× “W.Va.Code § 55-7B-3. Upon the trial court's determination that expert evidence is necessary to establish the standard of care in an action brought under the Act, there are specific foundational requirements for the admission of such testimony: Expert testimony may only be…”
Est. of Fout-Iser Ex Rel. Fout-Iser v. Hahn, 649 S.E.2d 246 (W. Va. 2007). · cites it 12× “In a case seeking to establish medical malpractice, a plaintiff is required to prove two things regarding each defendant: (1) that the defendant's conduct deviated from the applicable standard of care and (2) that such conduct proximately caused the plaintiff's injury.”
Sexton v. Grieco, 613 S.E.2d 81 (W. Va. 2005). · cites it 13× “2004) (emphasis added). 3 Thus, the defendants argue “[a]ny declaration short of a plain and unambiguous statement regarding proximate causation fails to satisfy the Legislature’s intent contained in W.”
Tennant v. Marion Health Care Found., Inc., 459 S.E.2d 374 (W. Va. 1995). · cites it 4× “However, the plaintiffs assert the word “average” understates the standard of care required under W.Va.Code, 55-7B-3 (1986). 24 The plaintiffs assert the statute does not include the word “average.”
Riggs v. West Virginia Univ. Hospitals, Inc., 656 S.E.2d 91 (W. Va. 2008). · cites it 12× “West Virginia Code § 55-7B-3(a) is identical to W. Va.Code § 55-7B-3 (1986) which was in effect at the time this action was file.”
MacDonald v. City Hosp., Inc., 715 S.E.2d 405 (W. Va. 2011). · cites it 4× “[22] W. Va.Code § 55-7B-3 (1986) (Repl.Vol.2008) provides, in pertinent part: (a) The following are 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: (1) The health care provider…”
Teresa Dellinger v. Pediatrix Med. Grp., P.C., 750 S.E.2d 668 (W. Va. 2013). · cites it 6× “The circuit court found that petitioner failed to offer evidence sufficient to establish a prima facie case of medical professional liability under West Virginia Code § 55-7B-3 (2003). In particular, the circuit court found that 1) petitioner’s expert effectively conceded that…”
Kiser v. Caudill, 557 S.E.2d 245 (W. Va. 2001). · cites it 4× “Such evidence is required in a medical malpractice action by W.Va.Code § 55-7B-3 (1986) which provides, in pertinent part: The following are necessary elements of proof that an injury or death resulted from the failure of a health care provider to follow the accepted standard of…”
Pleasants v. All. Corp., 543 S.E.2d 320 (W. Va. 2001). · cites it 2× “Upon a reexamination of this issue, we are convinced that the instruction has little use in the face of legislative enactments such as West Virginia Code § 55-7B-3 (2000), which define the necessary elements for proving a medical malpractice cause of action.”
Callahan v. Cho, 437 F. Supp. 2d 557 (E.D. Va. 2006). · cites it 2× “W.Va.Code § 55-7B-3. 3 . The facts recited here are derived from the summary judgment record and are essentially undisputed.”
Show all 39 citing cases →
W. Va. Code § 55-7B-3(a): 9 cases
Walker v. Sharma, 655 S.E.2d 775 (W. Va. 2007). “W.Va.Code § 55-7B-3. Upon the trial court's determination that expert evidence is necessary to establish the standard of care in an action brought under the Act, there are specific foundational requirements for the admission of such testimony: Expert testimony may only be…”
Riggs v. West Virginia Univ. Hospitals, Inc., 656 S.E.2d 91 (W. Va. 2008). “West Virginia Code § 55-7B-3(a) is identical to W. Va.Code § 55-7B-3 (1986) which was in effect at the time this action was file.”
Teresa Dellinger v. Pediatrix Med. Grp., P.C., 750 S.E.2d 668 (W. Va. 2013). “The circuit court found that petitioner failed to offer evidence sufficient to establish a prima facie case of medical professional liability under West Virginia Code § 55-7B-3 (2003). In particular, the circuit court found that 1) petitioner’s expert effectively conceded that…”
Sexton v. Grieco, 613 S.E.2d 81 (W. Va. 2005). “2004) (emphasis added). 3 Thus, the defendants argue “[a]ny declaration short of a plain and unambiguous statement regarding proximate causation fails to satisfy the Legislature’s intent contained in W.”
Delilah Stephens, M.D. v. Charles Rakes, etc., 775 S.E.2d 107 (W. Va. 2015).
W. Va. Code § 55-7B-3(a)(1): 3 cases
Est. of Fout-Iser Ex Rel. Fout-Iser v. Hahn, 649 S.E.2d 246 (W. Va. 2007). “In a case seeking to establish medical malpractice, a plaintiff is required to prove two things regarding each defendant: (1) that the defendant's conduct deviated from the applicable standard of care and (2) that such conduct proximately caused the plaintiff's injury.”
Hamon v. Morris, M.D. (W. Va. 2021).
Dawson v. United States, 11 F. Supp. 3d 647 (N.D.W. Va. 2014).
W. Va. Code § 55-7B-3(a)(2): 1 case
Dawson v. United States, 11 F. Supp. 3d 647 (N.D.W. Va. 2014).
W. Va. Code § 55-7B-3(a)(l): 2 cases
Cox v. MA Primary & Urgent Care Clinic, 313 S.W.3d 240 (Tenn. 2010).
Dawson v. United States, 11 F. Supp. 3d 647 (N.D.W. Va. 2014).
W. Va. Code § 55-7B-3(b): 3 cases
Teresa Dellinger v. Pediatrix Med. Grp., P.C., 750 S.E.2d 668 (W. Va. 2013). “The circuit court found that petitioner failed to offer evidence sufficient to establish a prima facie case of medical professional liability under West Virginia Code § 55-7B-3 (2003). In particular, the circuit court found that 1) petitioner’s expert effectively conceded that…”
Graham v. Dhar (S.D.W. Va 2019).
Est. of Lora Mae Burns v. Cohen (S.D.W. Va 2020).
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