What is Required to File a Medical Malpractice Lawsuit?

June 29, 2022

In the event you or somebody you love is harmed due to the negligent actions of a medical professional, it may be necessary to file a medical malpractice lawsuit to recover compensation. Here, we want to discuss what it means for a claim to be viable. In other words, our medical malpractice lawyers want to cover the elements that need to be present in order for a lawsuit to have a chance of being successful in court.

The Medical Standard of Care

There are various elements that must be in place in order for a medical malpractice lawsuit to move forward. It is critical to understand that the medical standard of care will take a front seat when it comes to these claims. In order for a medical malpractice claim to be valid, the medical standard of care must have been sub-standard and resulted in harm to the patient.

But what is the medical standard of care?

The definition of the medical standard of care can seem slightly confusing. When examining the actions of a medical professional in the confines of a potential malpractice claim, they (the professional) will be compared to others in similar situations. The medical standard of care is defined as the level and type of care that a reasonably prudent medical professional, with the same training and background experience, would provide in similar circumstances in the same medical community.

In other words, the actions of the medical professional in question will be judged by others in their area that have been trained in the same way. Did they act accordingly? Would someone else have done the same thing?

If it seems that the medical standard of care was indeed sub-standard, a malpractice claim may certainly be a valid way to recover compensation for the patient.

Determining whether or not the medical standard of care was sub-standard can be challenging and will typically revolve around an expert witness testifying on behalf of the patient in question. This expert will be another medical professional in the field that has the same extensive training and experience as the professional whose negligence is in question. The expert witness will have to:

  • Establish what the standard of care is
  • Testify as to how the treatment provided fell below the standard
  • Explain exactly how the patient was harmed as a result of the substandard care

In the state of West Virginia, an “affidavit of merit” is required before a medical malpractice claim can move forward. This affidavit comes from the expert witness who can testify under oath about the validity or merits of the claim in question.

What Compensation is Available?

In the event you or somebody you love has been injured or become ill as a result of the negligence of a medical professional, there may be various types of compensation available. This includes economic losses such as medical bills, lost wages, out-of-pocket expenses you incur, physical therapy and rehabilitation costs, the cost of prescription medications, and more. There is no limit to how much compensation a person can recover for economic damages in a medical malpractice claim.

Individuals may also be able to recover various types of non-economic losses for their emotional and psychological trauma as a result of medical malpractice. However, West Virginia does place a $250,000 cap on non-economic damages for medical malpractice claims.


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