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Medical malpractice occurs when a medical professional, organization, or entity commits an act of negligence or fails to act (an omission), leaving a patient with an unwarranted injury or fatality. Any practitioner from within the various fields of medicine is capable of committing medical malpractice. As a result, it has occurred in many forms. Actions categorized as malpractice are very distinguishable and unique, ranging from catastrophic surgical site errors to a seemingly small misdiagnosis. It doesn’t matter which form malpractice comes in, the effects of these negligent acts and omissions can be devastating. In fact, numerous studies have revealed that medical errors are transpiring more frequently as time progresses. Malpractice rates are as high as they’ve ever been, deeming medical errors as the third leading cause of death of citizens in the United States.
Those who pursue and occupy medical professions are notorious for consistently being overworked and busy. Practitioners have busy schedules, tons of appointments and a large responsibility to uphold their duties to the best of their ability. But the long hours and rigorous work entailed in these positions can have a negative effect on even the most dedicated and knowledgeable practitioners. Sleep deprivation, along with stress are just a few of the factors that could lead to medical error. Doctors who aren’t properly functioning because of these obstacles are more likely to commit medical malpractice. Patients deserve a properly functioning doctor to operate, diagnose and practice on them when they need help. Medical professions exist to solely improve the help of patients, not to worsen a patient’s condition. Doctors have been trained for a number of years so that they wouldn’t make dire mistakes. It is your job, as well as the duty of your hired legal representation to hold them accountable. Victims can help mend the fragile state of the health care system with a legal remedy.
This piece will serve as an overview of West Virginia medical malpractice laws. Tips regarding the filing process and the process of finding a suitable attorney will also be addressed.
Suing for medical malpractice in West Virginia
In order to receive a successful outcome in a medical malpractice case, there are several elements that claimants must have in their claim. The mere fact that you were injured as a result of an action committed by a doctor is not enough to win compensation. However, this factor coupled with others that have been previously addressed in successful medical malpractice cases will increase the likelihood of you winning your case. Also, many people think that unfavorable results in a procedure or appointment constitutes medical malpractice, but this is not the case. Just because you may not have liked the way things turned out, doesn’t mean you have a case. The following four elements must be present to form the basis for your claim.
1. There was a duty owed
This element is one of the easiest to prove. In the claim, there must be proof that the physician owed a duty to the claimant. In simple terms, it must be established in a claim that the practitioner(s) listed in your claim as a defendant had a mutual understanding with you that they are your doctor, and have a responsibility to provide any type of care or treatment to you, the patient. When this relationship is understood, it is implied that doctors are to act reasonably and appropriately towards their patient. This establishment doesn’t necessarily verbalize, when a patient sets an appointment with their doctor, this relationship is essentially implied.
2. There was a breach of that duty
A breach of the duty described above would be considered a deviation from the standard of care. Doctors are expected to behave on practice on patients reasonably and competently when this standard is not met, a breach of the duty owed to you has occurred. The standard of care can be boiled down to one concept. If another doctor was presented with these exact same circumstances, would they have made an error? If the answer is no, this factor can be provided in a claim. Usually, this element alone is what most people consider medical malpractice, but that is not the case.
3. The breach caused harm to the patient
In order for a medical malpractice case to stand in a court of law, there must have been some sort of harm to the patient. For example, propose a man broke his arm and visits the hospital for a diagnosis and treatment. The first doctor that sees the man claims that it’s just a sprain and he should let it heal on his own. However, a few minutes later another doctor comes in to affirm that the man’s arm is actually broken and gives the man a correct diagnosis. The man is immediately prescribed medication, given a cast and sent home. In this instance, a case with these circumstances would not be viable. The first doctor’s incorrect diagnosis did not contribute to the man’s injury in any way, shape, or form.
4. The harm led to damages
If the harm inflicted by a doctor’s negligence led to damages, a victim definitely has a case. Sustaining an injury that led for a person to experience losses, whether they be economic or non-economic, is one of the major indicators of a workable malpractice case. Think of medical malpractice cases as an equivalent to someone running a red light or a not stopping at a stop sign. If someone fails to stop at a stop sign and doesn’t hit another driver or pedestrian, they made a mistake but nobody was harmed. A physician may make a mistake, but if it doesn’t harm them and cause them damages, there is no case.
Laws surrounding the issue of medical malpractice in West Virginia could grant leverage to a patient or a health care provider. These factors change on a case-by-case basis.
How long do I have to file a medical malpractice case in West Virginia?
Each state provides a distinct law that dictates the amount of time a victim has to file a claim from the date the malpractice occurred. This law, labeled the statute of limitations, was implemented to ensure injured individuals bring cases promptly when the incident fresh in the mind of the victim, and the witnesses called to give their account of the events in a case. The time restraints specified in the statute of limitations vary in length depending on the cause of action and specific case details. Therefore, individuals who bring claims involving defective products, for example, may get more time than those who may be filing a claim in the wake of a medical malpractice injury, or vice versa. Whatever the state considers a reasonable amount of time to bring a claim is reflected in statutes. The state of West Virginia allots two years from the date the medical malpractice occurred to file a claim in a district court.  But there are exceptions and stipulations that have been added in hindsight for victims with valid justifications for missing the deadline.
West Virginia, along with most states, has added additional rules to level the playing field for victims who have experienced circumstances that made them miss the statute of limitations deadline. One of the stipulations added was the rule of discovery. The application of this rule to a civil claim implies that a victim could not have possibly reasonably discovered they were injured and commenced a case within the given time restrictions. So, claimants who rely on this rule will have to accept the burden of proving in court that he or she could not have “reasonably” discovered their injuries in time.
For example, let’s say a college athlete named Carrie had excelled in track and field for the duration of the three years she’s been at her university. After running a race, she felt immense pain and tingling sensations in her leg and decided to visit a doctor. After a thorough examination and several x-rays, the doctor claims that Carrie must undergo an emergency medical procedure immediately, apparently, she had been experiencing blockage in the arteries within her left leg for some time. After the surgery, Carrie was given all prescribed medication, and was told she would be able to run again soon after recovery, and that she did. However, about three years after the surgery, Carrie feels an intense pain in her leg again, so she decides to go to the hospital to get it examined. What the x-rays revealed, shocked her. The surgeon who had operated on her had left a small utensil utilized in surgery in her leg. She decides to file a claim immediately.
West Virginia lawmakers did not create the statute of limitations to penalize victims for experiencing latent symptoms. In the example above, Carrie’s symptoms stemming from the malpractice did not emerge until three years after the malpractice occurred. There was no proof of this mishap until one year after the statute of limitations has ended, so the rule of discovery can and will apply to her case. The countdown officially began upon discovery.
However, there is another law applied to the statute of limitations that claimants in West Virginia should be aware of. West Virginia law proceeds to state that “in no event shall any such action be commenced more than 10 years after the date of injury.” This means the rule of discovery is only applicable when an injury has been discovered within 10 years from the date of malpractice. No matter how serious or debilitating a victim’s injuries may be, no file can be claimed after 10 years from the date of malpractice. Also, the statute of limitations becomes “tolled,” or stopped in certain circumstances. These circumstances are when the defendant (a medical professional or organization) has committed fraud, by concealing and fabricating facts concerning a victim’s injury.
In West Virginia medical malpractice cases, who is responsible?
In every medical malpractice case, there is a plaintiff and a defendant. The plaintiff is an individual who has suffered the injury, while the defendant is the person and/or organization that plaintiff feels is responsible for the infliction of their injury. Identifying potential defendants in a case can be simple or perplexing, it depends on the nature of the case. There may be a number of people who have seen and worked with a victim in a medical facility, and assigning the blame to those involved may seem like a difficult task. However, doing so is pivotal. With the help of a skilled legal representative, narrowing down options liable for a victim’s injuries will heighten the chances of a plaintiff receiving the compensation they deserve.
When people imagine a medical malpractice case. They most likely envision a botched patient filing a lawsuit against a doctor. Although this is the circumstance in many cases, there are other potential defendants that could be listed or referenced in a case for liability.
West Virginia law references defendants as health care providers, but there is no specific law in the state’s statutes that provides a detailed definition. So, for the purposes of this article, the federal definition of a health care provider will be used. Federal law defines these defendants as “a provider of medical or health services, and any other person or organization who furnishes, bills, or is paid for health care in the normal course of business.”  This definition covers all fields of medicine consisting of, physicians, hospitals, dentists, pharmacists, registered nurses, nurse practitioners, licensed to practice registered nurses, optometrists, podiatrists, physicians assistants, chiropractors, physical therapists, physical therapy assists, clinical psychologists, clinical social workers, professional counselors, licensed marriage and family therapists, licensed dental hygienists, health maintenance organizations, or emergency medical care attendants or technicians who provide services on a fee basis in West Virginia.
What if I am partially to blame? Can I still recover money for WV medical malpractice?
The nature of the court system in medical malpractice civil cases is to determine if the defendant is liable for a plaintiff’s injuries. However, things aren’t always black and white in the court system. Over time, judges and juries began to conclude that plaintiff may share some of the liability for the injuries they’ve sustained. In cases when the court determines fault is shared, states have selected one of three methods that dictate how fault is assigned, and determining a plaintiff’s eligibility for compensation.
For example, let’s say you were experiencing immense pain after a recent medical procedure on your knee. The attending physician at the facility you underwent surgery at claims you’ll need a potent prescription.However, just over a year ago, you overcame your uphill battle and addiction to prescription drugs. You’ve decided to hide this information because you’ve turned over a new leaf, but there’s still a chance you could become dependent on the drugs administered to you. You figure your file will be reviewed and you’ll be denied for certain prescriptions anyway, so there’s no need to inform a physician of your previous issues with unauthorized drug use. Without checking your file, the physician decides to prescribe you the medication. A few weeks later, you end up succumbing to your addiction and taking way more pills than suggested within a short span. You overdose and end up in a coma for a week. When you regain consciousness, you realize your lungs have sustained severe damage, and you will be confined to a hospital bed for a while.
If you decided to pursue a claim for the damages you’ve suffered, one of three methods to assign fault can be applied in civil cases: modified comparative fault, pure contributory negligence, and pure comparative fault. Below is an overview of the three systems that are used in civil cases. This information is useful for West Virginia citizens that may have been injured outside of the state perimeter.
Modified comparative fault
West Virginia adheres to modified comparative fault method of assigning fault.  When this is applied to a civil case, the eligibility for compensation is capped off when a plaintiff is found liable for a portion of 50% or 51% of their own injuries by a judge or jury. This category is divided into two categories since some states chose to adopt the 50% rule and others adopted the 51% rule.
If a judge and a jury find that you are 49% or less liable for the damages you’ve endured, you will be able to recover compensation. However, if liability is assigned at 50% or more, a plaintiff’s eligibility for an award is voided. States besides West Virginia that apply this rule to civil medical malpractice cases are Arkansas, Georgia, Colorado, Maine, Kansas, Oklahoma, Nebraska, Utah, and Tennessee.
If the court were to assign you 50% of the fault, or less than that percentage you would still be able to recover damages appointed by the court. So, let’s say you were assigned 55% of the fault for your overdose, as described in the scenario above. According to the modified comparative fault 51% rule, you would not be eligible to receive compensation States that have adopted this rule include Connecticut, Hawaii, Delaware, Indiana, Illinois, Iowa, Michigan, Massachusetts, Minnesota, Nevada, Montana, New Hampshire, New Jersey, Ohio, Pennsylvania, Oregon, Texas, South Carolina, Wisconsin, Vermont, and Wyoming.
Pure contributory negligence
This method of assigning fault is very harsh towards plaintiffs. In fact, citizens in the states that abide by pure contributory negligence rules are applied typically don’t pursue a case if they know they even have an inclination that they could be blamed for a portion of the fault. This is due to the fact that this system strictly prohibits plaintiffs from recovering damages if they have contributed in any way to their injuries. So, if the court were to find a plaintiff a mere 1% responsible for damages, the opportunity for compensation is expired, no exceptions. States abiding under this system are Alabama, North Carolina, Maryland and Virginia.
Pure comparative fault
The pure comparative fault doctrine is essentially contradictory to the pure contributory negligence rule. It basically guarantees the plaintiff compensation, despite how small it may be. So, in the scenario mentioned above, let’s say the court has assigned you 60% of the blame for your damages, while the doctor has garnered 40% of the blame. Despite the fact that your contributions were what caused your overdose, you will still recover damages. However, the initial amount you were supposed to be granted by the court will be deducted by 60%. This doctrine is applied in Alaska, California, Arizona, Kentucky, Florida, Mississippi, Louisiana, New Mexico, Missouri, South Dakota and Rhode Island.
Although lawmakers in these states declare deductions from compensation as fair, many skeptics of the pure comparative fault system disagree. They claim that no plaintiff should be awarded for excessive contributions to their own injuries and that this system opposes the very nature of the judicial system. These statements led to the adoption of the pure contributory negligence doctrine.
Are there medical malpractice recovery caps in West Virginia?
Every state has the option of implementing laws that regulate the amount of damages plaintiffs can recover in a medical malpractice civil case. Some states have no “caps” or limitations on the amount of damages plaintiffs are eligible to receive, while other states have restrictions on compensation. West Virginia has placed limits on two of the three types of damages one could be awarded in a court of law. They are labeled economic, non-economic and punitive damages.
These types of damages are any tangible document or proof that indicates the losses a plaintiff has experienced as a direct result of an injury. Items such as documents, receipts, transcripts or any other information that would be considered valuable in your case are economic damages. Typically, damages are easy calculated and compiled to determine the amount of monetary compensation a plaintiff expects to receive in the event of a successful outcome. Some examples of economic damages are hospital expenses, loss of employment, diminished earning capacity, days missed from work, burial expenses, and property damage or loss of property. In the state of West Virginia, plaintiffs are allowed to recover any amount of economic damages awarded by the court, there are no caps or limitations.
Non-economic damages, also known as non-pecuniary harms, are losses that are not linked to the financial aspect of a case. Since they are intangible and can not be used as evidence in a case, the plaintiff is faced with the burden of proving that he or she has been deeply affected either psychologically or emotionally due to their unwarranted injury. Oftentimes, those claiming non-economic damages are required to prove to a judge and jury through testimonials that they deserve compensation for their altered emotional and/or psychological state. Some examples of non-economic damages consist of disfigurement, loss of consortium, loss of companionship, inconvenience, pain and suffering, emotional distress, and the degradation of the plaintiff’s quality of life. West Virginia has placed a $250,000 per occurrence cap on damages of this nature in most medical malpractice cases.  The cap rises to $500,000 if the malpractice resulted in catastrophic damages, such as wrongful death, permanent or substantial physical deformity, loss of a limb or a bodily organ, or physical or mental any injury that restricts a plaintiff from being able to efficiently take care of himself or herself and perform life-sustaining activities. 
Punitive damages, also known as exemplary damages, exist to deter similar misconduct from occurring in the future. When the court awards punitive damages, this means the defendant behaved in a way that was malicious, fraudulent or reckless towards the plaintiff. An example of this would be if a surgeon purposefully injured a patient out of spite. Usually, punitive damage awards are large, because they aren’t based on recovery of damages, they are granted to punish the defendant. In 2015, West Virginia set limitations on the award of punitive damages. According to state law, these types of damages may only be awarded when a plaintiff has provided clear and substantiating evidence that the defendant acted in a way that warrants the damages. If sufficient evidence is presented, the amount of punitive damages cannot exceed 4 times the amount of compensatory damages, or $500,000. 
Therefore, the amount a plaintiff can receive depends on the specifics of a case and the damages plaintiffs are seeking.
Expert witness reporting and testimony
Since specialized knowledge in the field of medicine is required in medical malpractice cases, an expert witness is required to testify in every West Virginia medical malpractice case. Their duty is only to prove through sufficient facts and data that the defendant deviated from the “standard of care” and that the individual, organization or entity acted negligently in the given circumstance. West Virginia law defines an expert witness as “a witness qualified as an expert by knowledge, skill, experience, training, or education.” 
Within an expert witness’ testimony, there must be clear and convincing evidence that the defendant:
- Deviated from the standard of care by committing the negligent act or omission that caused a plaintiff’s injury; and
- The breach of the standard of care was the proximate, or direct cause of the injury sustained 
The establishment of a breach in the standard of care is important in medical malpractices. Practitioners are expected to operate competently and appropriately in their positions. When a health care provider working in the same specialized field of medicine with the same degree of diligence and skill would not have made the same error a defendant made in similar circumstances, is when the defendant has fell below the standard of care.
Settling medical malpractice cases in WV
About 90% of medical malpractice cases are either settled out of court or negotiated prior to the litigation process. The more viable a case is, the more likely the defense is to agree on a settlement. This is due to the fact that court fees for medical malpractice cases are incredibly expensive, and the defense will lose even more money if they lose the case, so oftentimes defendants refuse to take their chances in court. In order to reach a settlement for a civil case, both parties must come to an agreement. But this may be difficult since the hired legal representation on each side of the spectrum wants to do what is in their client’s best interest. In most cases, advocates for the plaintiff aim to reach a monetary amount that reflects the damages they’ve endured, while the defense’s aim is to minimize the funds spent by their client. The settlement offer proposed by the defense can be rejected by a plaintiff and his or her’s counsel, coercing the defendant to attend trial. However, if the plaintiff is willing to accept the offer, a settlement has been reached. A settlement can be reached during the pre-trial stage of litigation or anytime during an ongoing trial.
Methods of payment
When a settlement has been reached by the opposing counsels, a monetary award will be granted to the plaintiff in one of two ways: either a lump-sum settlement or a structured settlement.
Lump-sum settlement: Plaintiffs who choose their pay to be arranged this way receive their settlement amount all at once. This is the most popular payout option for plaintiffs.
Structured settlement: Plaintiffs who choose this method of payment prefer that their award be distributed periodically as opposed to one lump sum. They are most commonly used in cases when the plaintiff is a minor or is expected to receive long-term health care for sustained injuries.
After a settlement has been reached and the method of payment has been selected, a plaintiff’s attorney will deposit the funds into an escrow account. Legal expenses will be withdrawn and the money left over will be granted to the plaintiff. It’s important to note that medical malpractice cases are incredibly individualized, and the outcome of one victim’s case may be different than yours. The likelihood of a settlement depends on the nature of your claim and the attitudes of the parties involved.
Litigating medical negligence cases in West Virginia
Once a victim has realized that they have been injured as a result of medical malpractice they will file a claim (hopefully, within the statute of limitations in West Virginia). If the claim is feasible, a settlement may occur before a trial is commenced. In cases when both parties can not come to a conceivable agreement, the cause will go through the phases of litigation.
Initiating the case
West Virginia law states that a case will only be assessed when a claim has been filed within the appropriate court. Two jurisdictions – labeled the District Court and the Supreme Court of Appeals of West Virginia – handle separate claims. District Court handles general civil cases, while the Supreme Court of Appeals of West Virginia handles appeals and claimants seeking an amount that exceeds $10,000 in compensation.
West Virginia citizens are expected to file a claim, alongside an affidavit for their case to be reviewed. If any of the documents are missing upon submission, the claim will be dismissed and will not advance further through the phases of litigation.
Preparing for litigation
The discovery process occurs in this phase. This is when each party will provide information regarding evidence and witnesses that may be presented or called within the trial period. This process was created to deter a phenomenon called “trial by ambush,” which occurs when one party is completely thrown off or oblivious to the opposing counsel’s evidence and witnesses. Also, a deposition, when questions are asked to witnesses to prep them for trial occurs. Some actions that transpire when preparing for litigation are:
- Requesting a document or facts of case by examined to prevent fabrication
- A subpoena, or request for the judge to examine documents or facts
- Submitting a physical examination
A number of motions and conferences go on in this phase. While facts, witnesses, and the rescheduling of briefs occurs. Also, in this stage, the defense has a chance to offer a settlement.
The following events will appear during the trial period in order:
- Opening statement from the legal representation from each party
- Testimonials and evidence called by the plaintiff’s party
- Testimonials and evidence called by the defense
- Closing statement from the legal representation of each party
- Jury deliberation
- Resolution and reward
When the losing counsel does not agree with the decision made by a District court, or finds a legal error within a trial, they can appeal a case. The type of legal errors that could successfully draw an appeal are (but not limited to):
- An unconstitutional ruling
- Evidentiary rulings
- Errors in the application of the law
- Discretionary issues
- Jurisdiction issues
How to find the best West Virginia Medical Malpractice Lawyer for your case
If you or a loved one has been injured as a result of the negligent individual, organization, or entity, it’s imperative you know that you are not alone. Medical errors are the third leading cause of injury and casualties in the United States, meaning that thousands of people are suffering from unwarranted injuries, just like you. Hiring a well-versed attorney to handle the legal obligations while you cope with an injury will take some of the pressure off of you during these stressful times.
When selecting an attorney, it’s important you remember that they are supposed to advocate for and represent you. It may not feel that way, especially when an attorney seems to only care about their best interest rather than yours. Interviewing a variety of firms and attorneys as opposed to just choosing the first one that seems genuine will be beneficial. Remembering traits like empathy for your situation, as well as effective communication and their range of skill and success rate are areas you should explore when choosing an attorney that is suitable for you.
Some Notable Medical Malpractice Law Decisions From West Virginia
Here are some notable medical malpractice cases that took place in West Virginia. Remember, each case is highly individualized, just because these plaintiff’s received these outcomes does not guarantee your case will.
Case no: 5:14-cv-30075 (S.D.W. Va. Jul. 5, 2016)
The judge awarded a woman the maximum amount of damages awarded in subjection to West Virginia damage caps after undergoing a hysterectomy a few days after having her first child in 2013.
According to Sara Smith’s lawsuit, she admitted herself into a hospital and into the care of Dr. Roy Wolfe when she noticed she had been bleeding from the uterus seven days postpartum. She notes that the treatment administered to her fell “egregiously below the standard of care.”
“He performed a D7C, gave single doses of two uterotonics, made a haphazard attempt at uterine packing by typing laparotomy sponges together and inserting them into the uterus, a method unlikely to be successful, and proceeded to a hysterectomy,” Smith’s lawsuit stated. This procedure completely diminished her chances of having another child.
After reviewing the facts of the case, the court found that Smith would have had at minimum, a 25% chance of retaining her fertility and uterus if Wolfe would have upheld the applicable standard of care. It’s apparent that Dr. Wolfe hardly attempted to pursue alternative treatments prior to performing a hysterectomy, which led the court to assume that he had a reckless disregard to the risk of harm to Mrs. Smith. Therefore, the limitation on economic and non-economic damages was lifted, and she was awarded $672,681.67.
Kanawha Circuit Court case no: 17-C-66
An ongoing case involving a granddaughter (the plaintiff) and Sunbridge Dunbar Health Care Corp and staff (the defendants) has ensued since she claims that the center and members fell below the standard of care.
Erin Graley claims her grandmother, Glenda Roberts, was a resident of the corporation for a year when she had suffered personal injuries and damages while residing there. In the lawsuit, she claims Roberts had caught pneumonia, suffered fractures and eventually died due to the inadequate care provided by the facility.
Graley claims that the defendants were knowledgeable of the dangerous environment created by their management of the facility and that they owe a duty to residents to act in a manner that is consistent with the proper operation of nursing homes. She argues that these actions constitute medical malpractice, and wishes to seek compensatory and punitive damages.
 W. Va. Code § 55-7b-4(a)
 CFR 45 § 160.103
 W. Va. Code § 55-7-13(a)
 W. Va. Code § 55-7b-8(a)
 W. Va. Code § 55-7b-8(b)
 W. Va. Code § 55-7-27
 Wilt v. Buracker, 443 S.E.2d 196 (W.Va. 1993)
 W. Va. Code 55-7b-1