Medical malpractice or medical negligence occurs when a licensed medical professional, such as a doctor or a psychologist, fails to meet the standard of care expected from them in their profession. A successful law suit against a medical professional is likely when a medical professional fails in their duty to care for a patient, that patient is harmed by that failure, and there is some damage done which can be compensated financially. If you have been harmed by the negligence of a medical professional, you may be able to be made whole again with financial compensation. Our attorneys understand the complexities of medical cases. If you need representation in a medical malpractice case, call us at 304-431-4050 or contact us online. We will work to get you the best possible result.
Standard of Care
In order to be successful in a medical malpractice claim, you must show that a medical professional failed to meet the applicable standard of care. This means that the medical professional acted ( failed to act) with the degree of care and skill of the average professional who practices the provider’s specialty. This takes into account what medical information and knowledge was available to the professional at the time of the care given. The question is, did the doctor do what any other doctor would have done in the same situation?
This failure of care is called a breach of duty. The breach of duty can be an action, such as giving the wrong medication to the patient, or a failure to act when any other doctor would have acted, such as failing to give a medication that was medically necessary for the patient.
West Virginia Caps on Damages in Medical Malpractice Cases
Many states have laws that limit how much money a person can get when they sue a medical professional for medical malpractice. This is called a cap on damages, and a person can only be awarded up to the capped amount. In West Virginia, the caps are detailed in West Virginia Code section 55-7B-8. The caps are $250,000 per-occurrence for non-economic damages, or $500,000 for non-economic damages in cases that are severe, such as those that result in death or permanent disability. Non-economic damages are losses such as pain and suffering but do not include direct economic harm such as medical expenses or lost wages, which are not capped.
West Virginia’s Collateral Source Rule
The collateral source rule does not allow a defendant to show that the person suing them received money from some other source to cover the costs of their injuries, in order to reduce how much they have to pay in their judgment. For example, if a plaintiff has medical bills that were totally paid for by their health insurance, a defendant can’t get out of paying those costs by showing that the insurance already paid for the bills. This was traditionally thought of as not allowing a defendant to benefit from the fact that the plaintiff had insurance.
However, in West Virginia, medical malpractice cases have a different rule. A defendant who is liable to pay for medical care, rehabilitation services, lost earnings or other economic losses can present to the court evidence that the plaintiff received money from other sources to cover these costs in order to reduce the amount that they will owe the plaintiff. This is done after a verdict has been entered but before the judgment has been decided.
Our Attorneys Understand Complex Medical Malpractice Issues. Contact us Today for your Free Consultation
Don’t delay in contacting an attorney. Time is an issue in legal cases, and you may lose your ability to get the compensation you need and deserve if you wait too long. You need an attorney on your side who has experience handling medical malpractice and who has knowledge of the special rules in West Virginia. At Katz, Kantor, Stonestreet & Buckner, we have over 80 years of experience fighting for victims of medical malpractice. If you are in the Southern West Virginia area and have been injured or have lost a loved one due to a medical professional’s negligence, contact us today at our Princeton, Bluefield and Charleston offices.