New Limits on Medical Malpractice

Written by on July 29, 2015 in Personal Injury


Despite the fact that many states have gotten rid of laws that limit a persons right to full recovery from medical mistakes, West Virginia has not. In fact, it has recently expanded its laws. In the last legislative session, the limits were expanded and they became effective July 1, 2015.

Two or three times a week I have the unfortunate task of informing an unemployed housewife, an elderly person, an injured child or someone without “economic loss,” that I cannot pursue their potential medical malpractice case because it is not “economically feasible” for them. Even if medical negligence occurred, many cases simply cannot be pursued. Why?

* Limit on the Amount of Recovery for the Unemployed, Elderly, etc.: Under present WV law, cases filed by those who are not employed are not considered as valuable as those filed by people who are employed. I know that sounds terrible, but it is simply the truth! Why the difference? Because unemployed people do not have lost wages, their recovery is limited to non-economic losses (things like pain, suffering, embarrassment, aggravation, etc.) and these damages have been capped or limited by West Virginia law. With few exceptions and unless you are killed by medical negligence, the absolute most that a jury can award is $250,000. Now, that may sound like a lot of money, but it isn’t and here is why.

* Costly “Certification:” Before you can even file your case, the law requires that you hire a medical expert to fully review your case and “certify” that you were a victim of medical negligence. If your damages were caused by more than one health care provider or facility or you have complicated injuries, then you will likely need multiple experts. These experts are not free, they charge by the hour and can be very expensive! Assuming a jury would award the maximum recovery of $250,000, this cost is deducted from the recovery.

* More Case Expenses: In addition to the expense of hiring experts, there will be case expenses as well – things like filing fees, deposition costs, the cost of medical records, etc. Also, you will have to pay your attorney. (No, they cannot do it for free any more than your doctor, mechanic, plumber or others could!) Assuming a jury would award the maximum recovery of $250,000, these costs are deducted from the recovery.

* Reimbursement of Medical Bills: In addition to the expert costs, case expenses and attorney fees, you will likely be required to reimburse your health insurance provider for any amount that it paid on your behalf. Most health policies have such a provision – the legal term is “subrogation.” Assuming a jury would award the maximum recovery of $250,000, these costs are also deducted from the recovery.

* Additional Reimbursement: Further, if a state or federal program (like Medicare, Medicaid, Workers’ Compensation, Veterans Administration, etc.) paid any of your medical bills, then you will be legally required to reimburse them as well. Also, if it is likely that you will need treatment into the future, then you will be required to calculate and “set aside” the future medical costs related to the medical negligence. (By the way, if often takes additional expensive experts – such as a life care planner and an economist – to calculate these future medical expenses). Assuming a jury would award the maximum recovery of $250,000, these costs are deducted from the recovery.

* Not Much Left After Costs: When considering that all of these costs will be deducted from an award of any amount, a person is often left with no legal recourse and must bear the economic, physical and often mental burdens which accompany medically caused injuries.

* Less Recovery for Death from a Medical Mistake: It’s even worse if you or a family member die from a medical mistake; here, the law caps the recovery at $500,000! That’s right, $500,000! Consider this ACTUAL CASE. A homemaker of three children went into a hospital complaining of back pain. The homemaker was mistakenly given another patient’s blood transfusion. The homemaker died from being given the wrong blood type. The maximum recovery for the homemaker’s spouse and children was $500,000 total!!!!

* Even Less Recovery for Death from Medical Mistake in an Emergency Room: Believe it or not, if you or a family member dies from a medical mistake caused in a trauma center as a result of an “emergency condition,” then the law reduces the recovery from $500,000 to $250,000.

When a heath care provider makes a mistake that injures or kills a patient, their error – in the eyes of the law – is no different than someone who mistakenly runs a stop sign, t-bones another car and injures or kills the driver. Both were negligent and caused injuries and damages to another person. However, the victim of a car wreck has a better chance of being fully compensated than the victim of a medical mistake!

Many states have found these laws to be unfair and have repealed them. If you think they are unfair, then you should contact your State Legislator and tell him or her so. A list of Legislators and their contact information can be found here: http://www.legis.state.wv.us/index.cfm

Finally, Forbes Magazine recently had an article titled: “On Tort Reform, Its Time to Declare Victory and Withdraw,” which discusses some of these issues. The article may be found here: http://www.forbes.com/sites/stevecohen/2015/03/02/on-tort-reform-its-time-to-declare-victory-and-withdraw/


About the Author

About the Author: .


If you enjoyed this article, subscribe now to receive more just like it.

Subscribe via RSS Feed Connect on Google Plus

Comments are closed.