RECENT CASE LAW AND STATUTES GOVERNING MALPRACTICE CLAIMS

When facing medical procedures, surgeries, or emergency situations, individuals and families must rely on medical professionals to apply their expertise and give the patient the best care possible. Placing trust and relinquishing all control to a medical professional most often provides great results and sincere gratitude to those professionals; however sometimes mistakes are made leaving families with often devastating results. People from all walks of life can experience medical malpractice. As law firm leaders, we closely follow cases and statutes in West Virginia that have impacted families dealing with medical negligence and malpractice. Below is a list of recent cases and statutes from West Virginia effecting medical malpractice.

WEST VIRGINIA

Minnich v. Med Express Urgent Care, Inc., 2017 WL 563353 (W.Va. Feb. 9, 2017)
On February 9, 2017, the West Virginia Supreme Court held that a fall by a patient at a MedExpress fell within the provisions of the West Virginia Medical Professional Liability Act. This case is significant that even in a slip and fall at a medical facility, the West Virginia statute requires expert witnesses to testify as to the breach of the standard of care and as to the proximate cause of the injury.

Smith v. United States, Civil Action No. 5:14-cv-30075 (S.D.W.Va. Nov. 15, 2016)
The United States District Court found that an obstetrician breached the standard of care by performing a hysterectomy without performing alternative treatments. The Court found that the doctor’s “failure to attempt alternative treatments prior to performing a hysterectomy on a twenty-four year old patient with stable vital signs and no evidence of hemodynamic instability constitutes a reckless disregard to a risk of harm to the patient.”

Murth v. Carpacs-Brown, 2016 WL 3357203 (W.Va. June 6, 2016)
The West Virginia Supreme Court reversed an award of attorneys’ fees to a successful plaintiff in a medical malpractice action and reduced a $4,000,000 judgment to conform to the statutory $1,000,000 limit on noneconomic damages.

Maynard v. Wexford Health Sources, Inc., 2016 WL 2979651 (W.Va. May 23, 2016)
The Court held that expert testimony was required in a malpractice case against a defendant for failure to meet the proper standard of care during a tooth extraction.

Keith v. Lawrence, 2015 WL 7628691 (W.Va. Nov. 20, 2015)
The West Virginia Supreme Court found that screening certificates in a medical malpractice action satisfied the statutory medical malpractice pre-suit notice requirements. The certificates of merit were sufficiently particular as to the expert’s familiarity with the applicable standard of care, his qualifications, his opinion as to how the applicable standard of care was breached, and how the breach resulted in the death of the patient.

Stephens v. Rakes, 775 S.E.2d 107 (W.Va. 2015)
The West Virginia Supreme Court held that the evidence was sufficient to show willful, wanton, and reckless conduct by a doctor warranting punitive damages.

Bunner v. United States, 2016 WL 1261151 (S.D.W.Va.)
The Federal Court in Parkersburg awarded a patient $399,456.48 where it was alleged that a physician was negligent in failing to promptly diagnose and treat a non-healing ulcer in the patient’s mouth. The physician was employed by the Veteran’s Affairs Medical Center in Clarksburg, West Virginia. The patient eventually underwent surgery to remove a squamous cell carcinoma in his right cheek. At the time of the trial, the patient’s oral cancer had not returned, but the patient continued to suffer nerve damage, decreased sensation, and poor mobility in his left arm, wrist, and fingers due to the skin graft.

Butcher v. United States, 2016 WL 1057052 (S.D.W.Va. 2016)
The District Court dismissed the patient’s medical malpractice claim brought under the Federal Tort Claim Act based upon the fact that the claim had not been timely filed and was barred by the statute of limitations.

Baker v. Moundview Healthcare, Inc., Marshall County, West Virginia, C.A.#13-C-114-H
Circuit Judge David Hummel ruled that recent changes to West Virginia’s Medical Professional Liability Act would not be applied retroactively.

Stevens v. Gullet, C.A.# 5:16-CV-48 (N.D.W.Va. July 7, 2016)
The Court held that the West Virginia Medical Professional Liability Act’s procedural rules do not apply to a claim brought in Federal Court.

W.Va. Code §29-12D-1a
This statute, which became effective July 1, 2016, requires that victims of medical malpractice pay 1% of the gross amount of any settlement or judgment to the West Virginia Board of Risk and Insurance Management to help fund the Patient Injury Compensation Fund.