Question

How do I know if I have a case for medical malpractice in West Virginia?

William C. Brewer - Business Litigation - Super Lawyers

Answered by: William C. Brewer

Brewer & Giggenbach, PLLC
Morgantown, WV
Phone: 304-291-5800
Fax: 304-291-5829

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Answer

Medical malpractice is another term for professional negligence or provider negligence. Health care providers are held to professional standards, and medical malpractice constitutes a failure to meet those standards. A provider could be anyone entrusted with your care, such as doctors, nurses, physician’s assistants (PAs), physical therapists (PTs), emergency medical technicians (EMTs), pharmacists and anesthetists. The responsible provider could also be an institution such as a hospital, chiropractic office, pharmacy or other place where you sought treatment. Most people can identify who caused the injury, but negligence must be proven in order to have a claim for medical malpractice. 

Basic Principles Of Negligence

In order to have a viable claim, the health provider must have been negligent in their care or treatment of you.

You have to be able to prove three components in order to prove negligence:

  1. Care: The provider was negligent in their duty of care.
  2. Damages: You must be able to show that that negligence resulted in damages. Damages mean you have to be harmed and as a result you have medical bills, missed time from work, pain and suffering, and so on.
  3. Causation: You must prove that the damages occurred because of the provider’s negligence. 

Proving Negligence In Medical Malpractice: Expert Required

There is a difference in proving negligence in medical malpractice cases versus car accidents. Some of the same principles of damages apply, but I think the thing that most people don’t typically understand is that you have to have an expert to certify that there was negligence.

This expert must be in the same care area as the provider so that he or she can prove that the treatment was done in a negligent way. In other words, another doctor has to sign a certificate stating that the practitioner deviated from the standard of care. 

Medical Malpractice Cases are Complex

Medical malpractice cases are extremely complicated, and they take a tremendous amount of resources to prosecute. You have to acquire all of the medical records and have knowledge of and access to other professionals. If it’s a case involving orthopedic surgery, for example, you would have to know someone who can review the records, such as an orthopedic surgeon, and give an opinion about the case. The services of these qualified medical experts can cost thousands of dollars.

Because of this, these cases require attorneys that practice in medical malpractice and who have the experience and resources to take on the case. Very few attorneys have this knowledge, experience and the resources to handle medical malpractice cases. 

Sometimes It’s Just A Bad Result

It can be challenging to point out what is a bad result and what is negligence, as the distinction is typically difficult to make.

As an example, some of the cases I’ve represented involved infections. Infection cases are hard because infections are an assumed risk of surgery. In one particular case, a person died after being treated at a hospital and also at a rehabilitation facility. The patient died of sepsis which developed after the surgery had been completed. Sepsis is a systemic infection, in this case pneumonia.

Many questions arose: Should the providers have done blood cultures to identify the organism and properly treat the disease before discharging the patient? If not, they may be liable. The patient had a bug that they weren’t treating her for. Did the hospital do blood cultures? They did, but negligence occurred at rehabilitation hospital. Were the providers even treating the right bug? If they had done blood cultures correctly and identified the right bug, they could have treated the patient for the correct disease. Instead, she couldn’t fight it off and died.  

There are risks anytime someone has surgery. You risk blood loss and getting an infection. Sometimes there can be an unfortunate case of someone getting an infection and not having stamina or strength to fight it off.

What should have been done and what wasn’t done? That is where an expert witness and experience comes in. The expert doctor or other medical provider will review your case and give an opinion. In any potential medical malpractice situation, the facts of the case need to be reviewed by an attorney in order to determine how best to proceed.

Disclaimer: The answer is intended to be for informational purposes only. It should not be relied on as legal advice, nor construed as a form of attorney-client relationship.

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