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 and Kentucky that have impacted families dealing with medical negligence and malpractice. Below is a list of recent cases and statutes from West Virginia and Kentucky 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.

Kentucky Cases

Brown v. Griffin, 505 S.W.3d 377 (Ky. App. 2016)
Expert witness testimony was required to prove the standard of care and breach thereof in a medical malpractice action involving an injury to a patient’s right distal ureter during a laparoscopic hysterectomy using a robotically-assisted system. The patient’s attorney had argued that the fact that the ureter had been cut during the surgery was sufficient to make out a case even without expert testimony. The Court of Appeals of Kentucky affirmed the trial court’s granting of summary judgment to the physician.

Wells v. Trover, 2016 WL 99824 (Ky. App. 2016)
The Court of Appeals of Kentucky, in discussing the one year statute of limitations applicable to medical malpractice cases, discussed the discovery rule exception. The Court found that the exception did not apply and that the one year statute of limitations barred the patient’s claim. The Court held that legal confirmation that one has been wronged is not necessary under the discovery rule. The rule merely requires that one be aware of the facts sufficient to put her on notice that her legal rights may have been invaded and by whom; uncertainty about the legal significance of those facts does not toll the limitations period. As the patient had sufficient facts to put her on notice that the physician may have invaded her legal rights, the patient’s claim was barred by the statute of limitations.

Pauley v. Chang, 2015 WL 8488910 (Ky. App. 2015)
As a matter of first impression, the Court of Appeals of Kentucky held that a patient’s fault in causing his injuries that necessitated the medical treatment was not available as a defense to a claim for medical malpractice.

Sargent v. Shaffer, 467 S.W.3d 198 (Ky. 2015)
In a claim where a patient brought a medical malpractice action against an orthopedic surgeon, claiming he failed to obtain her informed consent before performing a laminectomy and decompression procedure, the Supreme Court of Kentucky discussed the legal principles applicable to informed consent in the State of Kentucky. “The information imparted by a physician must be stated so as to provide ‘a reasonable individual’ with a ‘general understanding of the procedure, any acceptable alternatives, the substantial risks and hazards inherent in the proposed treatment or procedures which are recognized among other healthcare providers who perform similar treatments or procedures.’”

Spaulding v. Spring View Hospital, LLC, 2016 WL 929507 (Ky. App. 2016)
The Court of Appeals of Kentucky recognized a negligent credentialing claim against a hospital. “In the present context, corporate negligence ‘is a doctrine under which the hospital is liable if it fails to uphold the proper standard of care owed the patient, which is to ensure the patient’s safety and well-being while at the hospital.’” “Rather, the tort we are asked to recognize, and the cause of action from which Spring View and LCRH beg protection, would impose liability upon a hospital for its own decision to credential a physician the hospital knew or reasonably should have known was incompetent. Thus, hospitals would be liable for, and would insure themselves against, only their own negligence. This is not a novel or irrational concept, nor is it necessarily bad public policy. In fact, it is a standard to which our laws and courts hold other individuals, other professionals, and other corporation.” “We recognize negligent credentialing as a cause of action and as a means by which individuals can hold hospitals liable for the latter’s negligent extension or renewal of staff privileges and credentials to independent contractor physicians.” “The standard of care in a negligent credentialing claim is one of reasonable care under the same or similar circumstances.” “The hospital’s duty arises from the foreseeability of an unreasonable risk of danger to a patient stemming from the granting of staff privileges to doctors who create an unreasonable risk of danger to patients.”