Tammy Clements, the mother of Joshua Martin, filed a medical malpractice case in Cabell County Circuit Court against Micah LeMaster and Dr. Elizabeth Mott. Mott’s employers were also named: Marshall University Internal Medicine Residency, Marshall Health and Cabell Huntington Hospital. The defendants are alleged to be responsible for Martin’s death after he was shot at their home acting as a “naked intruder”. LeMaster had originally been charged with murder in the incident and was recently acquitted. The case challenged the court to interpret their laws regarding individual rights to defend one’s home and self-defense.
That night, Mott was awakened by loud sounds outside her house and woke her husband. LeMaster fired three shots from his front door striking Martin. Martin had prior been at a party where significant drug use had gone on. Mott’s employer (the hospital) would contact her for work-related reasons while she was at home. Mott had received contact from her employer that evening; therefore, the plaintiff asserts that she was operating within the scope of employment at the time. The malpractice claim is based on Mott’s failure to provide aid or exercise care expected of a medical provider to the victim and states that she exhibited neglect and intentional behavior leading to the death. Clements is seeking compensatory damages and well as punitive damages, based on willful and wanton disregard.
West Virginia Health Care Crisis
The cost of coverage has surged recently and the extent of coverage had dropped, resulting in negative consequences for the injured, heath providers and facilities. The state is facing losses of physicians and has difficulty in attracting them because of costs and taxation. Within the state’s long-term-care market, medically-related liability concerns are extremely high. Many nursing homes are on the verge of reducing their number of beds due to unsustainable costs of liability insurance.
West Virginia Medical Malpractice Law
To prove that injury or death resulted from the provider’s failure in maintaining standards of care, it must be determined that the provider did not deliver to a standard that another provider in the profession would have based on the circumstances. This failure must then be proven to be the reason for the injury or death. The state has a procedure necessary for bringing a malpractice action against a medical provider as follows:
- 30 days before filing, the health care provider(s) must receive a certified claim notice indicating an intention to file
- It must include a certificate of merit performed by a medical provider (under oath) who qualifies as an expert in the field
- This expert must be knowledgeable of the standards of care and have proper qualifications
- It must include the expert’s opinion of how the standards were breached
- It must also include the expert’s opinion on how the breach caused the injury or death
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