Negligence is the basis for proving fault in a medical malpractice case. Making a mistake in the medical field does not constitute medical malpractice. The differentiating factor between a legal mistake and malpractice is the level of care. When a physician fails to provide a reasonable standard of care and you suffer an injury as a result, he or she is accountable for the harm caused.
To prove negligence in a malpractice lawsuit, you must present evidence that:
- A physician-patient relationship existed. The existing physician-patient relationship proves there is a duty the physician owes to you during the course of treatment.
- The physician failed to meet his or her duty. Every physician is required to provide a standard level of care, which is the same level of care another physician of the same skill level would have reasonably provided in the same situation. If he or she fails to do so, it is considered a breach of duty.
- There is a direct, causal link between the physician’s actions and your injury.
- You suffered an injury as a result of the physician’s actions.
Proving these elements often requires the testimony of a medical expert who can attest that the physician’s level of care was not reasonable. During the proceedings, the expert must establish the standard level of care and illustrate how the defendant failed to provide it.
Establishing negligence can be far more complicated than it seems. Since the defendant has access to medical records, they may not be framed appropriately for use in a malpractice lawsuit. The legal system has a standard to help you if you encounter this dilemma during proceedings. Called the “res ipsa” doctrine, the phrase is short for “res ipsa loquitur” which is Latin for, “the thing speaks for itself.” If you have an injury that would not be there except for another person’s negligence, the injury is enough to prove malpractice.
Another complication malpractice cases may see is an argument that a previous healthcare provider (not the one in question) was responsible for the negligent medical care. If there is not a clear link between the injury and the attending physician, proving negligence and liability may become more difficult.
West Virginia Medical Malpractice Laws
The statute of limitations for medical malpractice in West Virginia is two years from the date the injury occurred or when it was discovered. In cases where more than one healthcare provider is found liable for injury, each will be held accountable for the full judgment amount, unless one party is less than 25% responsible. If you are found to be partially responsible, you may receive a reduced amount in the verdict.
To adequately prove negligence in West Virginia, expert witnesses must be medical professionals who practice in the same or a similar medical field as the defendant. West Virginia does not require its physicians to carry medical malpractice insurance.
What to Do if You Suspect Medical Negligence
Always keep detailed medical records of your health care visits. If possible, take pictures of any injuries you sustain, as well as noting any supporting information. Having copies of healthcare records and photographic evidence may help you identify any erroneous documents the healthcare facility may try to submit in court.
Contact a West Virginia medical malpractice lawyer to learn more about the next steps to take. An experienced attorney can walk you through the process of filing a medical malpractice suit and help you determine the next steps in your case. Your attorney may look at medical records and talk with family members and friends to determine whether a malpractice case can be pursued.