A medical malpractice claim, in many ways, functions like a personal injury claim against a medical professional, such as a doctor, nurse, surgeon, or anesthesiologist. While the process of filing and pursuing a medical malpractice claim may seem straightforward at first, many claimants quickly realize that medical malpractice claims are complex legal affairs that can take months, even years to resolve.
A plaintiff in a medical malpractice claim will likely want to know his or her odds of success before starting the claim, and the initial consultation with a qualified West Virginia medical malpractice attorney is the best time to determine those odds. Many attorneys that specialize in civil litigation offer free consultations to potential new clients. While a consultation does not count as official legal advice, these meetings are valuable opportunities for potential plaintiffs to gauge the strength of their claims.
Preparing for a Consultation
Before meeting a potential attorney, make sure you gather all the documentation related to your claim. The more detail you can provide to an attorney, the more accurate his or her assessment of your claim’s potential value will be. Generally, two types of damages are available to plaintiffs in medical malpractice claims: the economic damages that repay financial losses resulting from medical negligence and non-economic damages for pain and suffering or diminished quality of life.
Your West Virginia injury lawyer will review your claim to help you determine the economic damages available but estimating the value of your pain and suffering and other non-economic damages is more difficult. No fixed rule for exactly calculating the monetary value of things like pain and suffering exists, so different courts use different methods for determining reasonable amounts of compensation.
Factors That May Influence Your Claim’s Chances of Success
The jury in a medical malpractice claim will scrutinize a plaintiff for credibility. This means the jury will want to ensure that the plaintiff’s claim matches the evidence available in the case, and expert witness testimony will likely come into play. An expert witness with a background in a relevant field of medicine can act as an expert witness in a medical malpractice claim and help a jury understand a plaintiff’s position and various aspects of a plaintiff’s claim. For example, in a lawsuit against an oncologist for incompetent cancer treatment, the plaintiff’s attorney may consult an expert witness with an established background in oncology.
An expert witness’s testimony will have a tremendous impact on a medical malpractice claim. The expert witness may be able to prove that a defendant failed to meet the standard of care for a plaintiff’s condition or help the jury understand other important aspects of the case. An expert witness helps enhance the plaintiff’s credibility when his or her testimony supports the plaintiff’s claims.
Plaintiffs must also carefully assess whether they may absorb some liability for their damages. For example, a plaintiff in a medical malpractice claim may have neglected to follow the doctor’s instructions for preoperative or postoperative care, exacerbating an issue that resulted in harm. In this situation, the jury may decide that the plaintiff is partially liable for his or her damages. In states that follow comparative negligence laws, the plaintiff would lose a portion of the case award equal to his or her fault percentage. In states that follow contributory negligence laws, any plaintiff liability may bar recovery entirely.
State-Specific Medical Malpractice Laws
You also need to assess your state’s medical malpractice laws to accurately estimate your chances of winning a case. For example, you must meet the statute of limitations or time limit for filing medical malpractice claims in your state. If you fail to meet this time limit, it’s likely that a judge will throw out your case immediately. The defendant may also use the plaintiff’s failure to meet the statute of limitations as grounds for dismissal of the case.
Some states also limit or cap the amount plaintiffs can receive in pain and suffering compensation for medical malpractice claims. If you’re not sure which state laws may influence your odds of winning your medical malpractice lawsuit or the amount of compensation you could receive, your attorney is a great resource for more information.