West Virginia Law Review

Document Type



The preparation and trial of a medical malpractice case is a trial lawyer's delight. The trial arena presents a unique opportunity for the lawyer, physician, patient, and jury to explore the intricacies of a surgical procedure, the maze of a diagnostic puzzle, and the mystery of malpractice causation. The physician is subjected to intense scrutiny by professional malpractice witnesses; he is compelled to justify every note in his record and every omission in his thought process. The lawyer undertakes the herculean task of learning anatomy, physiology, and the specific medical discipline of the defendant. It is in this context that a review of the law of medical malpractice in West Virginia will be explored with appreciation to those who have blazed the path. This analysis of West Virginia law will demonstrate that the untimely death of a patient or an unexpected complication alone does not make a physician negligent. A national study exploring the causes and effects of medical malpractice concludes that no malpractice crisis really exists. The study is valuable in ascertaining what areas of medical treatment produce the greatest number of malpractice claims and indicates that the changing patterns of medical practice from family physician to the super-specialist clinic has brought about an increase in malpractice claims. The depersonalizing aspects of a patient being hospitalized, operated upon, and released without substantial personal input by the physician creates an unhealthy atmosphere. The prominent role which hospitals have assumed in the dispensing of health care has also made hospitals the primary situs of the alleged malpractice. The generic use of the term "malpractice"7 has severe social and economic connotations. Generally, a physician accused of malpractice can become stigmatized by the public as an incompetent physician. More importantly, a physician found guilty of medical malpractice by a jury can lose his license to practice medicine. The vagueness of the term malpractice does not prevent courts from reaching verdicts. Malpractice, like any other negligence based action, is subject to the equation of duty, breach, causation, and damages. Malpractice cases have some unique features such as non-negligence based theories of recovery. Each of these theories as well as the negligence approach also has the unique feature that expert testimony regarding causation is necessary to make a prima facie case. The protection of medical malpractice victims by court interpretations has been expanding in recent years. The most notable expansion involved the creation of the "discovery rule" which holds that the statute of limitations does not begin to run against a claim until the injured party knows or should have known of the alleged malpractice. Malpractice defendants usually are physicians, hospitals, and their agents, servants or employees. As defendants, they are liable for primary negligence and the vicarious acts of those whom they control. The business format, partnership or medical corporation, chosen by the physician will determine the personal exposure which a physician has for vicarious liability. A hospital's vicarious liability can arise from the negligence by commission or omission of its agents, servants, or employees. A hospital's primary negligence can range from negligent selection of incompetent employees to maintaining an unsafe premises. This article will canvas the prerequisites to a malpractice action as well as probe the theories of liability, defenses, and immunities.



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