Many states, including West Virginia, have strict procedures and requirements that govern the filing of any tort claim related to medical professionals or health care facilities. In West Virginia, these procedures are contained within the West Virginia Medical Professional Liability Act (MPLA). A failure to follow these procedures can result in the immediate dismissal of a claim. Since the requirements can be arduous, plaintiffs will, on occasion, try to avoid them by creatively pleading tort claims that they argue fall outside the purview of a medical malpractice or medical liability claim. In a recent case before the West Virginia Supreme Court, a plaintiff tried but failed to creatively plead a premises liability claim against a health care provider.
In West Virginia (and other states), a special claim exists for parents who give birth to a severely developmentally disabled child because they were not adequately informed of such disabilities during the pregnancy. Since a doctor or hospital’s failure to provide the parents with the proper information about their pregnancy deprived them of the opportunity to decide whether to bring the child to term, they may sue for the medical expenses and other damages that occur after the child’s birth. This is known as a wrongful birth claim. Wrongful birth claims can often result in extraordinary damages awards because of the enormous costs of taking care of a developmentally disabled child. A recent case before the Fourth Circuit Court of Appeals looked at whether West Virginia residents are entitled to such damages even when their medical expenses are being paid by a program such as Medicaid.
When a family member or loved one is gravely injured or killed as a result of the negligence of another party, it is natural to want to seek out as many avenues as possible for relief or justice against the party at fault. In most situations, plaintiffs are precluded from bringing multiple rounds of claims against the same defendant. Thus, for instance, a plaintiff cannot bring a lawsuit for negligence against a defendant and then, after losing, attempt to bring a different negligence claim. Courts generally hold that plaintiffs are entitled to their day in court, but not to repeatedly drag a defendant into court if they lose. However, this does not mean that it is impossible to bring multiple personal injury claims when a plaintiff feels that one claim does not adequately cover the harm that they have suffered. A recent case out of the neighboring state of Maryland looks at situations in which both personal injury and wrongful death claims can be brought.
Nursing home negligence is an all too frequent topic in the news these days. As the population of the United States grows increasingly older, and young adults find themselves trapped between raising children of their own and taking care of their elderly parents, older individuals are more and more likely to spend time in a nursing home or assisted living facility. While many of these service providers have stellar reputations, quality care, and a genuine consideration for their residents, recent stories have highlighted the darker side of nursing homes. In some cases, nursing homes prey on the vulnerable elderly members of society, subjecting them to abuse, neglect, and even death.
A recent case before the West Virginia Supreme Court deals with the tragic death of Robert Thompson, an elderly man suffering from Alzheimer’s disease who resided at Nicholas County Nursing & Rehabilitation, which is owned by CMO Management, LLC (“CMO”). Mr. Thompson died in July 2011 from injuries resulting from prolonged abuse and neglect, including hip fractures, malnutrition, and serious pain. In 2013, Wanda Williams filed suit on behalf of Mr. Thompson for negligence and wrongful death. She sought damages not only for what happened to Mr. Thompson but also for systemic problems with the nursing facility during the course of his time there from 2009 to 2011.
News media across the country have been chronicling the consistent rise in opioid use and addiction throughout the United States over the last few years. Whether due to health issues, economic struggles, or general malaise among the public, the use and abuse of opioids has risen to the level of a national health crisis. Opioids are prescription drugs, requiring that they be prescribed by a doctor and dispensed by a pharmacist. Thus, as addiction levels have risen, criticism has increasingly turned to the possible contributions of physicians and pharmacists to this growing problem, as well as their liability for the relative ease of access to and misuse of prescription medications.
In response to concerns about the way health care professionals may be negligently contributing to an opioid epidemic, West Virginia Attorney General Patrick Morrisey recently unveiled new draft best practices for physicians and pharmacists who prescribe and dispense opioid medications. Thus far, the best practices have been met largely with support by the medical community, since they seek to standardize the correct ways for medical professionals to use opioids within their practice, and lessen possibilities of mistakes or misuse within the State.
Every day, thousands of Americans place their lives and their trust in the hands of the medical professionals who advise them, treat them, and operate on them. We take for granted that doctors and nurses are trained professionals with years of schooling and experience to guide their decision-making and ensure the health and safety of their patients. However, a recent study by researchers at Johns Hopkins University suggests that our optimistic faith in the medical profession may be misleading us, and the rate of medical errors in West Virginia and throughout the country is much higher than many of us have previously believed.
In a study released on May 3 in the BMJ (British Medical Journal), researchers argue that a careful look at the data available shows that medical errors are currently the third-ranking cause of death in the United States. These include not only medical errors that occur during surgery or other high-risk treatments, but also medical misdiagnoses, erroneous prescriptions, and faulty treatments. In total, the researchers calculate that 250,000 people die from medical errors every year.
Plaintiffs typically bring lawsuits in the forum, or court, that is most convenient for them. This is most often where they reside, but it may also be where an injurious act took place, or where the defendant resides. In many personal injury cases, both parties reside in the same state or district. For instance, two neighbors who run into each other during an accident in their neighborhood would be likely to seek out the same court for their dispute. But in certain circumstances, the parties may differ about where the lawsuit should be brought. For instance, a defendant may spend half of his year in one state and half of his year in another, and argue that a lawsuit brought against him should be transferred to a different state. In order to analyze where a case should be brought, courts consider a variety of factors. A recent decision by the West Virginia Supreme Court highlights the weighing of the factors that must occur.
It is widely understood in federal and state courts that certain documents are privileged and protected from the public eye, including the eyes of other parties. These include documents created in anticipation of a case proceeding to trial, or documents evidencing communications between a lawyer and his or her clients. One less well-known privilege that protects certain documents from public production is the peer review privilege. The peer review privilege, which protects documents produced in evaluating a physician, is widely raised in medical malpractice cases and is the subject of much dispute. Recently, the Supreme Court of Appeals of West Virginia sought to clarify this privilege under state law.
Courts have the power to award two different types of damages in West Virginia personal injury cases: compensatory damages and punitive damages. Compensatory damages are intended to make the injured person “whole” by compensating the person for related medical costs, missed wages resulting from time away from work, pain and suffering, and emotional distress. Punitive damages are designed to punish a person or entity being sued for particularly callous behavior.
The U.S. District Court for the Southern District of West Virginia recently explained in a medical malpractice case some of the requirements that a person must meet in order to assert a claim for punitive damages. Although the standard was recently changed, the case gives a good example of what courts look at when considering punitive damages claims.
Mother and Father sued an emergency room doctor and his hospital employer in March 2015, alleging that the doctor’s negligence contributed to their baby son’s death. Among other claims, the parents said the doctor failed to take into account when treating the baby that he showed signs of hemophilia – a rare blood disorder – and to take adequate steps to address the condition. They argued that both the doctor and the hospital failed to live up to the “duty of care” required of a physician and a hospital under the circumstances and that the hospital fraudulently misrepresented the quality of services provided in advertisements touting the expertise of their doctors. The parents asked the Court to award them both compensatory and punitive damages.
During the discovery process, parties to a lawsuit have the opportunity to seek information, documents, and other evidence from one another. It’s an essential part of litigation and one that can help a person suing for personal injury to solidify and weigh the merits of his or her case. But just because you can seek information generally doesn’t mean that you can necessarily ask for everything under the sun. A recent ruling by the U.S. District Court for the Southern District of West Virginia explains some of the basic limits on the discovery process in the medical malpractice setting.
Ms. Wilshire’s son died from cardiac arrest in August 2009, roughly four days after being discharged from Plateau Medical Center’s emergency department following treatment for acute cocaine intoxication. She later sued the hospital and Dr. Brian Love for medical malpractice, claiming that Love deviated from accepted standards of medical practice in treating her son. She also alleged that Love released her son from the hospital too early and that this contributed to his death.
In the litigation that followed, Wilshire served discovery requests on Love in which she asked him to provide a detailed history of his education. Among other information, she sought a list of the schools he attended, the degrees he earned, and the dates on which he attended each institution. After Love provided the information, which showed that he’d spent 10 years completing medical school, Wilshire informed Love that she intended to subpoena the Marshall University School of Medicine to produce Love’s education records from that institution. Love objected and filed a motion to quash the subpoena.