West Virginia Personal Injury Damages — What You Can Recover

Damages in a West Virginia personal injury case are designed to make the injured person whole — to restore them, as nearly as money can, to the position they would have been in if the injury had not occurred. Understanding the categories of damages, how they are calculated, and how West Virginia's specific rules affect the outcome is essential to evaluating any personal injury claim.

Economic damages compensate for objectively measurable financial losses. These are proven through documentation — bills, records, pay stubs, and expert projections:

• Medical expenses — emergency room treatment, surgery, hospitalization, physician visits, physical therapy, prescription medications, diagnostic imaging, and medical devices. This includes both past expenses and projected future medical costs for ongoing treatment.
• Lost wages — income lost during the recovery period, including salary, hourly wages, bonuses, commissions, and the value of sick time, vacation time, or FMLA leave used
• Lost earning capacity — if the injury permanently affects the ability to work, an economist or vocational expert can calculate the difference between pre-injury and post-injury earning ability over the plaintiff's remaining working life
• Property damage — repair or replacement of vehicles, personal items, and other property damaged in the incident
• Out-of-pocket expenses — transportation to medical appointments, home modifications (ramps, grab bars), household help, childcare during recovery, and assistive devices

Non-economic damages compensate for losses that are real and significant but harder to quantify. There is no fixed formula — these are assessed by the jury based on the evidence:

• Pain and suffering — the physical pain caused by the injury and experienced during treatment and recovery
• Emotional distress — anxiety, depression, PTSD, insomnia, fear, and the psychological impact of the injury
• Loss of enjoyment of life — the inability to participate in hobbies, activities, sports, or social life that the plaintiff enjoyed before the injury
• Loss of consortium — the impact on the marital or family relationship, including companionship, affection, and intimacy. In West Virginia, a spouse may bring a separate consortium claim.
• Disfigurement and scarring — permanent physical changes that affect appearance, self-image, and daily life
• Inconvenience and disruption — the ongoing burden of living with the injury's effects

West Virginia imposes caps on certain categories of damages that limit recovery regardless of what a jury awards:

• Medical Malpractice Noneconomic: $250,000 (non-catastrophic) / $500,000 (catastrophic) statutory base noneconomic damages caps in medical malpractice, increased annually for inflation since 2004 (not to exceed 150% of base) — Two-tier cap per occurrence: $250K base for non-catastrophic injuries; $500K base for wrongful death; permanent and substantial physical deformity, loss of use of a limb or loss of a bodily organ system; or permanent physical or mental functional injury that permanently prevents the injured person from independently caring for himself or herself and performing life-sustaining activities. Beginning January 1, 2004, both limits increase each year for inflation by the CPI, not to exceed 150% of the base amounts, so the currently applicable caps exceed these base figures. The caps are not available to a defendant lacking medical professional liability insurance of at least $1 million per occurrence covering the injury. W. Va. Code § 55-7B-8. §55-7B-8

Punitive damages are not about compensating the plaintiff — they are about punishing egregious conduct and deterring similar behavior by others.

Punitive damages in West Virginia require proof by clear and convincing evidence — a significantly higher burden than the preponderance standard used for Compensatory damages §55-7-29. They are reserved for conduct involving oppression, fraud, wantonness, or malice.

Must prove actual malice toward the plaintiff or conscious, reckless, and outrageous indifference to the health, safety, and welfare of others by clear and convincing evidence. Cap: greater of $500,000 or 4x compensatory damages (§55-7-29).

Under West Virginia's modified comparative fault rule, damages are reduced by the plaintiff's percentage of fault — but if the plaintiff is 51% or more at fault, recovery is barred entirely. The difference between 50% and 51% fault can mean the difference between a substantial award and zero.

§55-7-13c; §55-7-13a