What Is Medical Malpractice?
Medical malpractice occurs when someone who practices medicine, or a medical organization or entity, commits an act of negligence resulting in injury or death. Medical malpractice may range from severe injuries and death to a small misdiagnosis that creates emotional distress or hassle for a patient. Unfortunately, medical malpractice is occurring at a higher rate than it used to because doctors are being overworked and tend to be extremely busy, resulting in fatigued oversight. In West Virginia, victims must establish several elements to receive damages in a medical malpractice personal injury case.
Showing that a medical professional or entity owed a duty is one of the easiest elements to prove in a medical malpractice case. This is an easy element because it merely needs to be established that the medical professional and the patient had a mutual understanding that there was a doctor-patient relationship. There does not always need to be a verbalized doctor-patient personality; instead, it can be an implied relationship that can occur when a doctor treats a patient or gives him a medical diagnosis.
Breach Of The Duty
Next, a victim must prove a breach of duty. For example, doctors must behave in a manner known as a “standard of care.” If another doctor was in the same situation, would they have acted the same way as the doctor accused of medical malpractice? If not, the professional may have breached the standard of care.
Standard Of Care
The standard of care is the treatment that medical experts accept as a proper treatment that healthcare professionals widely use. The standard of care can come from clinical guidelines and formal diagnostic and treatment processes that most doctors use when handling certain things. These can also be known as “best practices.” The National Guideline Clearinghouse publishes policies that can help an expert witness establish the standard of care.
Breach Caused Harmed To The Patient
In addition to a duty owed and a breach of duty, there must be actual harm caused for a valid medical malpractice case. For example, suppose a doctor misdiagnoses and has another doctor come to confirm who correctly diagnoses the individual. In that case, there is no actual harm to the person, so there is no viable medical malpractice case. Alternatively, suppose someone comes in complaining of a sore wrist, and the doctor diagnoses it as a sprained wrist, saying it will heal on its own and sending the patient home. Two weeks later, it is much worse and now requires surgery because it was broken but not appropriately diagnosed. The patient could sue the doctor for medical malpractice in the second scenario.
The Mistake Caused Harm
There must also be actual damage to the patient. There cannot be a medical malpractice case when the mistake does not harm the patient. For example, if there was a misdiagnosis, but no resultant damage occurred, the patient cannot sue for medical malpractice. However, if a misdiagnosis leads to missed work and extra medical bills, the patient may have a viable medical malpractice case.
Statute Of Limitations
The statute of limitations for a medical malpractice case is two years. Individuals can bring medical malpractice claims within two years of discovering the injury or the time reasonable people would realize an injury occurred. If the victim does not pursue the lawsuit within the required timeframe, the court can dismiss it. The statute of limitations can also be tolled if a healthcare provider commits fraud or conceals injury.
West Virginia has a statute of repose that provides that regardless of the situation, victims cannot bring a medical malpractice case 10 years after the medical malpractice incident. Suppose a medical malpractice incident occurred due to a misdiagnosis in January 2015. In that case, the victim must bring the case by January 2025, even if the malpractice they discovered in December 2024.
These timeframes force a patient to be diligent about bringing a lawsuit within a reasonable time. The law also allows doctors to perform their jobs without constantly looking over their shoulders and waiting for potential claims. The statute of limitations also attempts to keep memories fresh and ensure evidence remains salient.
Damages For Medical Malpractice Cases
In West Virginia, an individual can receive both economic and non-economic damages in a medical malpractice case. Monetary damages include past and future medical expenses, past and future lost earnings, and anything else that can be clearly valued and calculated. How much work the victim misses because of the incident can determine future earnings lost. However, these expenses become more complex when looking at future medical expenses because they need to hire an expert witness to determine what procedures and follow-ups must occur.
Additionally, non-economic damages may be available, but these are more difficult to determine because they are subjective to each individual. Non-economic damages include pain and suffering, emotional distress, and even inconvenience. This means if someone is more inconvenienced by something than another person, they may receive more damages. In West Virginia, non-economic damages are capped at $500,000 per occurrence, meaning regardless of how much non-economic damages are incurred, no more than $500,000 in non-economic damages can be awarded.
Who Has To Pay?
A variety of people could be liable for damages awarded in a medical malpractice case, including the patient, if they contributed to the injury. Any healthcare provider who participated in the malpractice, the entity that employs the healthcare provider, and the insurance company can all be liable for the damages. All of these parties can be jointly liable depending on the number of damages. For example, suppose the doctor and hospital’s insurance only covers up to $1 million per incident, and the patient is awarded $3 million because of economic and non-economic damages due to a large loss of salary and medical expenses. The medical staff and employer could be required to pay the remaining $2 million.
Hiring A Medical Malpractice Attorney
Suppose you or someone you know believes a medical malpractice incident occurred. Fortunately, you can hire an experienced attorney to tackle the complexities of the case. A knowledgeable attorney will review a Charleston medical malpractice case to determine if there is a viable case. To schedule a free consultation with one of our attorneys at Salango Law, PLLC, contact us at (304) 342-0512 or reach out online. During the consultation, one of our attorneys will review the facts of your case and evaluate its viability. Once hired, a more extensive investigation will begin to establish a case.