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Your Charleston Medical Malpractice Case: The Basics

The CAMC doctor told you the surgery was routine, but a couple days later the wound became infected and requires more surgery. Now, the complications have become more expensive (and more painful) than your original malady. You can't even get out of bed, you family doesn't know what to do, and you can barely think through the cocktail of painkillers that barely masks pain. Pursuing a medical malpractice lawsuit is a daunting proposition, and you need peace of mind to heal, which is why FindLaw has created this guide to prepare you for what to expect from your Charleston medical malpractice case.

Medical Negligence

Most medical malpractice cases are essentially claiming negligence by a medical professional. Medical malpractice liability can come from a doctor's failure to diagnose their patient correctly, an unreasonable delay in treatment, or improperly treating the patient. To find a medical professional negligent, it must be shown that his or her conduct fell below a generally accepted standard of medical care, and this failure caused your injuries.

Standard of Care

Everyone is held to a reasonably prudent standard of care as they go about their daily business. But as you may imagine, doctors are expected to conform to a much higher standard than the average person in treating your condition. In general, the standard of care is that which a reasonably competent and skilled health care professional, with a similar background and in the same medical community, would have provided under the circumstances that led to the alleged malpractice.

Proving Negligence

Since judges and juries will have little to no personal knowledge of standard medical procedures, establishing the standard of care is crucial. This makes medical experts extremely important in medical malpractice cases. Usually, you need to hire an expert in the same field as the health care professional being sued. They typically will testify as to what should have been done under the applicable professional standards, and how the defendant failed to meet that standard.

You may also want to consider scheduling a free consultation with an experienced medical malpractice attorney. These attorneys typically have a wealth of experience with a variety of different types of cases, have established relationships with medical professionals, and may even be familiar with the same types of injuries you've suffered. Medical malpractice attorneys almost universally are paid on a contingency fee basis, which means they take a cut of the recovery instead of billing you by the hour. Yes, this means that they don't get paid until and unless they've won your case (this includes settlements).

Informed Consent

A physician must tell a patient all of the potential benefits, risks, and alternatives involved in any surgical procedure, medical procedure, or other course of treatment, and must obtain the patient's "informed consent" to proceed. There are three general components to informed consent. First, the patient must receive a Disclosure that informs the patient of all the risks, benefits, and alternatives of the proposed treatment. Next, the patient must have the capacity to comprehend the disclosure. Finally, the patient must execute a valid, voluntary waiver in the form of a Release.

Lawsuits for failure to obtain informed consent can take the form of either a malpractice action or an action for battery, which is an unauthorized, harmful touching.

Who to Sue

If you've been injured by a health care professional, you may have grounds to file a lawsuit against the doctor who injured you or the hospital that employs the doctor. This is because an employer is responsible for many types of misdeeds an employee may commit within the scope of their employment.

A hospital can also be sued independently under the "corporate negligence" doctrine. For example, the hospital may fail to maintain sanitary conditions, fail to screen employees for proper credentials, or improperly discharge a patient.

You may also have a products liability lawsuit against a pharmaceutical company that created a medicine with unreasonably dangerous side effects that you were not made aware of, or against the company that designed or manufactured a defective medical device.

Statute of Limitations

Almost all lawsuits are accompanied by a hidden time limit called the statute of limitations. Once too much time has passed, a plaintiff will be forever prohibited from filing a lawsuit, regardless of the strength of his or her claim. This prevents plaintiffs from dragging defendants to court for ancient injuries, after much of the evidence and witnesses have disappeared.

West Virginia law provides that medical malpractice actions must be filed within two years from the date the malpractice occurred. However, some types of malpractice result in subtle injuries that aren't immediately obvious. These actions are governed by the "discovery of harm" rule. If your injuries were not obvious West Virginia gives you two years from the date you discover, or reasonable should have discovered, the injury. But beware - no actions may be commenced more than ten years after the alleged negligent treatment.


Medical malpractice damages can be separated into two categories: economic and non-economic. Economic damages are easily quantifiable costs associated with the injury, such as medical bills or loss of income. There is no upper limit to the amount of economic damages you may recover.

Non-economic damages are sometimes called "pain and suffering" damages because they are designed to compensate you for the mental and physical distress you suffer as a result of your injury. Examples include the loss of enjoyment of life, fear and anxiety, sleeplessness, scarring, and disfigurement.

In West Virginia, non-economic damages in most medical malpractice cases are limited to $250,000. However, if the malpractice resulted in wrongful death, permanent and substantial physical deformity (such as loss of limb), or an injury that permanently prevents the injured person from being able to independently care for themselves, the noneconomic damages cap is raised to $500,000.

Now that you know how to pursue your medical malpractice lawsuit in Charleston, it may be helpful to read up on general medical malpractice law, or get the inside scoop on Charleston personal injury cases.

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