What money you can and can't recover in a Texas medical malpractice case

 

Contrary to what some people believe, not all damages are capped

 
September 20, 2018

As a Houston, Texas medical malpractice attorney, I frequently meet with injured patients and family members about potential new cases. Virtually all of the people who call Painter Law Firm for help have been injured by hospital, physician, or nursing mistakes, but sometimes we can’t help them because their case is not economically viable under Texas law.

This is usually shocking to people because, after all, most of them have suffered from life-changing injuries. Once I explain how tort reform works in Texas, they are shocked, but understand.

Non-economic damages cap

Under the strict parameters that went into effect in 2003, in Texas, non-economic damages are capped. In many cases, non-economic damages account for the most serious injuries a person sustains for medical malpractice. There the type of damages, though, to which it is hard to assign a dollar value. For example, non-economic damages include things like loss of consortium (loss of relationship), mental anguish, and pain and suffering.

Texas law limits non-economic damages to a total of $250,000 for all physician or other individuals. That means that it does not matter if you sue one or 10 physicians, the maximum that you can recover from non-economic damages is $250,000. If a hospital or facility is included as a defendant, another cap of $250,000 is available. If there are multiple hospitals or facilities named as defendants, then the total non-economic damages cap is $500,000.

To make it clear, if you sued two doctors and two hospitals, the total non-economic damages would be $750,000.

There is no economic damages cap

Some people believe that the tort reform cap applies to all damages. I’ve even had several attorneys state the same belief. Fortunately, though, it’s not true. Economic damages are not capped by Texas law, and include things like loss of earning capacity (lost wages), past medical bills that have been paid or are still legally owed, and the cost of future medical care that will likely be necessary.

When does a case make “money sense” to pursue?

When I review a new potential medical malpractice case, I consider not only the mistakes or liability of the doctors or hospital involved, but also the likely recovery under the facts and circumstances. After all, whether an injured patient and family has significant economic damages or not, the cost to work up the case is roughly the same. Texas law requires, for example, costly medical expert witnesses to provide testimony of the applicable standards of care, who made mistakes, and how it caused injuries or harm to the plaintiff.

It is easier to explain how all this works together by giving some examples.

If a person dies from poor medical care, it is a medical malpractice wrongful death case. If the patient was a wage-earner, then the lost wages over the person’s work life expectancy could be recovered in a  lawsuit. If the patient was unemployed, worked at home for a living, or was elderly or retired, then there would be virtually no economic damages. This means that the maximum total recovery at trial would be essentially the non-economic damages applicable to the facts of the case. That, in turn, would have to be weighed against the considerable expenses required to work up a case.

If a person is injured from poor medical care, but there are minimal lost wages and medical bills, then the same analysis applies.

What about if a person is severely injured because of negligent medical care and had a lot of past medical bills, but eventually recovered? Of course, a plaintiff could potentially recover the amount of paid or legally-owed past medical bills, but the analysis does not end there.

If the patient received medical care that was paid for by Medicare or Medicaid, then those government agencies have a lien on any recovery and a right to be repaid, with a certain discount.

What surprises potential clients even more is that if they had health insurance through an employer-based plan, then there is likely a contractual subrogation right in favor of the plan. This works much like a lien and means that the health insurance plan may have a right to be repaid, usually with a discount defined by law.

In my view, it is important for both medical malpractice attorneys and new clients to understand the potential limitations upon a potential lawsuit recovery, whether by settlement or trial. After all, few plaintiffs would be happy to go through the time and stress of lengthy litigation, only to have tort reform limits, liens, and subrogations leave them with a minimal recovery.

We are here to help

The experienced medical malpractice attorneys at Painter Law Firm, in Houston, Texas, know how to evaluate medical negligence and wrongful death matters, including what could likely be recovered in court.

If you or a loved one has been seriously injured or even died because of poor medical, surgical, or hospital care, then the experienced medical malpractice attorneys at Painter Law Firm, in Houston, Texas, are here to help. Click here to send us a confidential email via our “Contact Us” form or call us at 281-580-8800.

All consultations are free and, because we only represent clients on a contingency fee, you will owe us nothing unless we win your case. We handle cases in the Houston area and all over Texas. We are currently working on medical malpractice lawsuits in Houston, The Woodlands, Sugar Land, Conroe, Dallas, Austin, San Antonio, Corpus Christi, Bryan/College Station, and Waco.

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Robert Painter is a medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits against hospitals, physicians, surgeons, anesthesiologists, and other healthcare providers. A member of the board of directors of the Houston Bar Association, he was honored, in 2017, by H Texas as one of Houston’s top lawyers. In May 2018, the Better Business Bureau recognized Painter Law Firm PLLC with its Award of Distinction.

Robert Painter

Robert Painter is a medical malpractice lawyer at Painter Law Firm PLLC.

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