Medical malpractice is the third leading cause of death in the United States. There are nearly 100,000 deaths annually as a result of diagnosis errors while 195,000 die in hospitals each year because of preventable mistakes.
The National Practitioner Data Bank tracks all medical malpractice settlements. According to the Data Bank, malpractice victims were awarded over $4 billion in 2018. Only 3.5 percent of those awards resulted from trial verdicts while 96.5 percent were a result of pre-trial settlements.
The Data Bank reported the average payout for medical malpractice claims was $348,065.
In West Virginia, medical malpractice payouts are tracked by the West Virginia Insurance Commissioner. In 2020, West Virginia victims of medical malpractice were paid $29,149,563, collectively.
The Most Common Complaints in Medical Malpractice Claims
The report also found that medical errors relating to diagnoses consisted of 34.1 percent of medical malpractice claims. While malpractice related to surgical procedures accounted for 21.4 percent of claims and malpractice associated with improper treatment accounted for 21.1 percent of all claims.
In West Virginia, medical malpractice claims have declined sharply over the last twenty years as a result of tort reform.
The Data Bank reported that 12.3 percent of claims resulted in quadriplegia, brain damage, and other injuries requiring lifelong care, 18.7 percent resulted from catastrophic permanent injuries, and 29.7 percent resulted in fatalities. Additionally, the average payouts for claims that resulted in death, which is approximately $380,300, weren’t as high as claims resulting in brain damage, which earned payouts of up to $960,000.
How Much Is My Medical Malpractice Claim Worth?
The value of each malpractice claim depends on the facts of each case. West Virginia law permits recovery of:
- Economic or special damages, which are based on calculable financial losses.
- Non-economic, general, or pain and suffering damages, which are not clearly calculable or based on bills or expenses.
In some cases, patients may also pursue punitive damages if the healthcare provider’s actions were malicious, intentional or in reckless disregard for patient safety.
To be awarded damages through a malpractice claim, you must prove the actual malpractice that occurred caused your damages. That is, you must prove that the doctor’s actions, rather than the underlying disease, caused your injuries.
Determining Your Special Damages
- Lost earnings
- Past medical expenses
- Future medical expenses
- Loss of earning capacity
- Other quantifiable financial losses
- Funeral expenses for wrongful death
Your medical expenses include all the bills that you have incurred due to your injuries and can include the cost you would reasonably incur if you require future medical treatment. Future medical bills are usually high in malpractice cases.
Your lost earnings and loss of earning capacity are earnings that you have lost or stand to lose due to the malpractice incident that led to your injuries. This includes employment benefits you lost, such as paid leaves, health insurance, and pension contributions, etc. Calculating your past lost wages is easy because you just add all the earnings and benefits you missed because of your injury.
Determining Your General Damages
West Virginia law caps the amount of general damages you may receive in a medical malpractice case.
Since 1986, the West Virginia Legislature has “capped” the amount of damages a person may receive for pain and suffering in medical negligence cases. Initially, the cap was $1 million. In 2003, the Legislature reduced the non-economic caps to $500,000 for those victims who suffer wrongful death, permanent and substantial physical deformity as well as a loss/use of a limb or body organ, or a permanent injury that prevents the plaintiff from being able to care for themselves and perform life-sustaining activities. The caps are governed by the Medical Professional Liability Act.
In all cases not involving wrongful death, permanent and substantial physical deformity as well as a loss/use of a limb or body organ, or a permanent injury that prevents the plaintiff from being able to care for themselves and perform life-sustaining activities, the cap on non-economic damages is $250,000.
These caps are adjusted annually for inflation. While there is a cap on non-economic damages, West Virginia does not place a cap on economic damages (past and future medical expenses, past lost wages, future lost wages, etc.).
A second cap applies to certain victims who receive negligent treatment at a designated trauma center. This “trauma cap” is $500,000. However, effective July 1, 2016, even if the trauma cap applies, a victim may be able to receive an additional $1 million in compensation for economic loss exceeding the trauma cap. There are also exceptions to the trauma cap if the healthcare provider fails to follow certain written guidelines or if he or she acts in reckless disregard of the patient’s safety.
Pain and suffering damages include both mental and physical pain and suffering, such as:
- The pain of your actual physical injuries
- The pain and suffering you’re experiencing from a permanent injury or disability, disfigurement, or scarring
- Mental suffering and pain, including emotional distress, mental anguish, anger, fear, humiliation, loss of life enjoyment, and/or sleep disorders, among others
- Loss of companionship or consortium
Seeking Legal Help from a Medical Malpractice Lawyer
Medical malpractice claims are complex and require the assistance of a skilled lawyer.
Attorney Ben Salango for being recognized by his peers as one of the “Best Lawyers in America” for the tenth consecutive year in medical malpractice and personal injury litigation in Charleston. He was voted by his peers as “Lawyer of the Year” in 2019 and 2021.
If you or a loved one have been harmed by medical malpractice or medical negligence, do not hesitate to give the skilled Charleston medical malpractice attorneys at Salango Law, PLLC a call. Contact us at (304) 342-0512 or fill out our online form to schedule a free case consultation with us today. Salango Law, PLLC serves the entire state of West Virginia including Charleston, Huntington, Beckley, Morgantown, Clarksburg, Logan, and Parkersburg.