Medical malpractice cases are civil cases brought against healthcare providers for negligent injury to the patient in the course of medical treatment. Medical malpractice liability (responsibility for injury) arises when the healthcare care provider’s conduct falls below the standard of care. West Virginia law requires the injured patient to prove that the healthcare provider failed to exercise the degree of care expected of a reasonably prudent healthcare provider in the same profession or class, acting in the same or similar circumstances, and that such failure was the proximate cause of injury or death to the patient. The factual basis for those fundamental elements will differ in every case.

Medical malpractice cases are extremely difficult to win in West Virginia. Over time, healthcare providers and their insurers have convinced the West Virginia Legislature to restrict the rights of injured patients. The restrictions often prevent the injured patient from bringing a claim either by substantially increasing the cost of bringing the lawsuit, limiting the amount of compensation that the victim can receive, or by making it much more difficult to prove the healthcare provider committed error. Unfortunately, those restrictions prevent many meritorious cases from being brought.

When a potential client / injured patient calls Hill, Peterson, Carper, Bee & Deitzler, PLLC about bringing a medical malpractice case, we examine several criteria.

Evaluating your claim:

1. What did the healthcare provider do wrong?

We do not expect injured patients to know every detail about their medical treatment or exactly what the healthcare provider should have done differently. However, to evaluate your case we need to know why you sought treatment, what treatment was performed, and why you believe you were injured by the healthcare provider.

If, based upon our experience, we believe it is likely that you have been a victim of medical malpractice, we will review your medical records and consult with a medical professional. Only then, will be able to advise you whether we think you have a valid claim and whether we are willing to accept your case.

We do not practice medicine, so we rely on objective unbiased medical professionals to let us know whether you have a meritorious case. Some people suffer a bad result from the medical care they receive. A bad result does not always equal medical malpractice. The law provides a great deal of protection to doctors, hospitals, and other healthcare providers. Meritorious cases are cases in which the healthcare provider violates the generally accepted standard of care.

2. How bad were you hurt?

Unfortunately, because of the protections afforded to healthcare providers under West Virginia law, wise attorneys will only pursue medical malpractice cases that involve significant permanent harm to the patient.

It is very difficult to tell a potential client / injured patient that we believe their doctor committed malpractice but did not cause enough harm to justify the expense of bringing a case. In one sense, it is good that the person was not significantly harmed. On the other hand, the person feels violated and angry that their healthcare provider committed an unacceptable error without consequences. Those patients generally are not seeking money damages, instead, they want to ensure others are not treated the same way.

Basically, the harm (or damages) caused by medical malpractice can be classified two ways: economic and non-economic. Economic damages include the cost of future surgeries to correct the harm, additional medication, physical therapy, lost wages caused by the injury, and other items that can be assigned a tangible dollar amount. Non-economic damages include pain, suffering, mental anguish, grief, and other items of subjective value.

West Virginia law provides caps on non-economic damages in medical malpractice cases. Sometimes, the caps restrict the ability to bring cases where a patient has suffered catastrophic life altering harm, but mostly non-economic in nature.

3. Has the time limit expired for bringing the claim?

Generally, medical malpractice claims must be brought within two years of the date of the injury caused by the healthcare provider. Alternatively, the case may be brought within two years of the date that the injury is discovered, or should have reasonably been discovered, by the injured patient. The lawsuit must be filed in the proper court before the time limit expires or the patient may forever lose his/her right to recover through the civil justice system.

The law provides an extension of time for filing in some cases involving children, and in cases where the healthcare provider has committed fraud or collusion and conceals the harm that they caused.

If you believe the time limit for filing your case is near, you should contact an attorney without delay.

4. Where did the medical treatment or injury occur?

Our law firm conducts cases across the nation, however, we primarily practice in West Virginia. The contents of this article may generally apply to cases that must be brought in other states, but it was written in the context of the law applicable to West Virginia.

Medical malpractice cases usually must be filed within the state and county where the malpractice occurred.

5. Premature claims

We speak with many people that believe their doctor or other healthcare provider has committed malpractice and injured them, but not enough time has passed to determine whether the injury is severe enough to justify the expense of bringing a lawsuit. Wise lawyers will not file questionable medical malpractice suits. It is simply too expensive to bring a case that does not meet the above mentioned criteria. Lawyers risk tens of thousands of dollars on each malpractice case, so from a business perspective, wise lawyers do not bring cases unless they believe there is a high chance of success.

It is not uncommon for patients to experience less than perfect results from surgery or other medical treatment. A bad result does not automatically mean that malpractice has occurred. The law allows doctors to make mistakes. Any doctor will tell you that medicine is more of an art than a science. Usually, the patient must wait and see how their body responds. Sometimes the patient must endure another surgery or therapy. Sometimes it takes years to evaluate the existence and severity of an injury. With that in mind, it is still important to ensure that you do not miss time limit for having your case filed in the appropriate court.