When you seek medical care in West Virginia from a doctor or healthcare professional, you expect them to act with a certain level of competence and skill. Regrettably, that is not always the case. In some situations, a medical professional can fall far short of the professional standards of care in place for patients, and in doing so, commit medical malpractice. But how exactly does one prove malpractice? When do common medical errors cross the line? We’ll cover the elements required to prove medical malpractice, review some typical examples, and explore how the malpractice claims process works in reality.

Defining Medical Malpractice in West Virginia

Medical malpractice occurs when a healthcare professional fails to meet the standard of care and, in doing so, causes injury to a patient. The healthcare professional can be a physician, nurse, hospital, nursing home, or medical clinic, among others. 

The four elements of medical malpractice in West Virginia are codified in state law, and in order to win a malpractice claim, you must demonstrate all four of the following:

1. Duty: The doctor had a duty to provide professional care to the patient.
2. Breach: The doctor deviated from, or fell below, the accepted professional standard of care.
3. Causation: That breach was the proximate cause of the injury or damage to the patient.
4. Damages: The patient suffered demonstrable loss, harm, injury, or damage.

As is the case in most states, West Virginia divides damages into economic and non-economic categories:

• Economic damages (medical bills, lost income) — Harmed individuals can get an unlimited recovery amount for these types of damages
• Non-economic damages (pain, suffering, emotional distress) — These are capped in most cases, with a higher cap in catastrophic injury cases (permanent impairment or disability, wrongful death, etc.)

Common Medical Malpractice Scenarios in West Virginia

There are an almost infinite number of possible scenarios that could constitute medical malpractice. However, below are the most common types:

#1: Misdiagnosis/Delayed Diagnosis

Failure to diagnose a serious condition (cancer, heart attack, stroke) or diagnosing it late can narrow treatment options and worsen a patient’s outlook and prognosis.

Scenario: You present to your doctor with chest pain and shortness of breath, classic heart attack symptoms. The doctor dismisses your concerns, tells you it is acid reflux, and sends you home. You later have a heart attack and are hospitalized for a myocardial infarction, with permanent damage to your heart. This doctor has clearly fallen well below the standard of care and caused your injuries.

#2: Medication Errors

Giving the wrong medication, a wrong dose of medication, or not catching a dangerous drug interaction are all common medication errors.

Scenario: A nurse administers 10 times the normal dose of a blood thinner to a patient, resulting in severe internal bleeding. The patient has to be rushed to the hospital and stays for a week. This error was clearly negligent, and there is a direct link to the harm caused.

#3: Surgical Errors

Operating on the wrong body part, wrong-site surgery, surgery without consent, nerve damage, retained surgical instruments, and anesthesia errors during surgery all qualify.

Scenario: A surgeon removes the wrong kidney (a healthy one) from a patient or leaves a sponge or other instrument inside a patient, causing an infection. This is a classic example of medical malpractice.

#4: Anesthesia Mistakes

Errors in administering anesthesia—either giving too much or too little, or failure to monitor vital signs during surgery—can lead to serious injury or even death.

Scenario: A doctor fails to monitor the patient under anesthesia, who suffers from hypoxia (low blood oxygen) during the procedure and is left with brain damage. The failure to monitor the patient meets the breach and causation elements.

#5: Failure to Obtain Informed Consent

Changing a medical course of treatment during a procedure or failing to inform the patient of material risks can constitute a breach of duty and medical malpractice if harm occurs.

Scenario: Patient A undergoes a surgical procedure, and a major risk that was not disclosed to them (risk of paralysis) materializes. This may form the basis for an informed-consent claim.

Burden of Proof & Role of Experts

Expert testimony is required in almost every case except certain informed consent issues under West Virginia law.

After sending your pre-suit notice and screening certificate of merit, an expert will need to testify at trial (or by affidavit):

• That the provider deviated from the standard of care (the breach)
• How that breach caused the harm, citing specific parts of the medical records

West Virginia has very specific requirements for the qualifications of the expert. Generally, they have spent at least 60% or more of their time in active clinical practice or teaching in a medical program at the time of the injury.

Steps to Take if You Suspect Malpractice

• Preserve records: Collect all medical records, bills, prescriptions, and keep a diary of your experience and losses.
• Act fast: Send your notice of claim with a certificate of merit at least 30 days prior to filing a lawsuit.
• Get expert review: A medical expert must attest that the provider deviated from the standard of care and caused harm to the patient.
• Consult a skilled attorney: Speak with a trusted attorney to understand your options.

Learn More About Your Rights From a Knowledgeable Attorney Today

Medical malpractice in West Virginia is not limited to a small handful of scenarios. In fact, nearly any type of medical error or professional negligence can amount to malpractice if you can prove the elements. From misdiagnoses to medication mistakes, surgical errors to anesthesia mistakes, obstetric malpractice to hospital-acquired infections, these examples represent the most typical types of malpractice cases. 

If you or a loved one believes you suffered harm due to the negligence of a medical professional, the medical professional liability laws of West Virginia outline strict yet workable paths to seek justice (and, in many cases, significant compensation). The West Virginia medical malpractice claims process requires care and diligence, and it is beneficial to have the guidance of an experienced attorney. Contact our office today to discuss your situation.