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Taxable court costs in a Texas medical malpractice lawsuit

Asking for taxable court costs may add a little extra to top off a settlement offer

In Texas, medical malpractice cases are expensive to pursue. There are numerous case-related expenses, with the largest one being fees paid to medical, nursing, and other expert witnesses. Other costs of the lawsuit include items such as filing fees, court reporter fees for deposition transcripts, videographer fees for depositions, travel expenses, records fees, investigators fees, and on and on.

Often, near the end of the mediation or after a jury verdict, there’s a discussion about taxable court costs.

What are taxable court costs?

The prevailing party at trial is entitled to a judgment that includes its taxable court costs. If the plaintiff wins, the plaintiff can file a motion with the court seeking entry of judgment for the damages awarded by the jury plus the plaintiff’s taxable court costs. If the jury finds in favor of the defendant, the defendant can file a motion for entry of judgment, finding that the plaintiff take nothing, but that the defendant can collect its taxable court costs.

This is why it’s important to understand what costs are taxable and what costs aren’t taxable under Texas law. You’d think there’d be one place to go to find a list because they’re considered taxable, but there isn't one. They’ve generally been defined by common law, or individual court decisions, over many, many years.

Before talking about what falls within the Texas definition taxable court costs, we should start with carving out a major exclusion, medical expert fees.

Texas law requires medical malpractice plaintiffs have at least one medical expert witness to support their case. Many cases require multiple experts in different medical specializations, as well as nursing fields, pharmacy, life care planning, economics, and others. Each expert will be paid thousands of dollars in compensation for their time spent on the case. In a complex medical malpractice case, the total expert fees alone will be tens of thousands of dollars. The significant expert witness expenses are not taxable court costs.

So, what’s left? This is a list of case expenses that courts have found to be taxable:

• Filing and other fees paid to the court clerk. These are the fees that must be paid to initiate a lawsuit, have citations issued, etc.

• Court reporter fees for deposition transcripts. Court reporters make a word for word transcription of questions, answers, and anything said during a deposition. There transcripts are important because deposition testimony can generally be read to the judge and jury. Court reporters charge a fortune for their services. For most depositions, the court reporter fee will be at least $1,000. Interestingly, although many depositions are video recorded these days, those charges are not taxable costs.

• Fees paid to a constable or private process server to serve defendant to citation. After the lawsuit is filed, the plaintiff is responsible for formally notifying defendants. This is typically done through a constable or registered civil process server, whose fees are considered taxable court costs.

• Expenses for medical, billing, and other records. These fees can be considerable, particularly if the records are not available in electronic format.

• Subpoena or witness fees. The fees paid to a witness for appearance pursuant to subpoena are taxable. So too, are the expenses paid to the constable or private process server who delivers the subpoena to the witness.

• Mediator fees. This is the fee paid to the independent mediator who helps facilitate settlement at mediation. Most mediators charge at least $2,000+ per party for a medical malpractice case.

Why does it matter?

In the context of the mediation, taxable court costs are often another pot of money worth exploring to make a slight improvement to a final settlement offer of the defendant.

Most insurance company adjusters and defense attorneys show up to mediation with a certain dollar limit of authority to settle a lawsuit. Once negotiations reach that ceiling, there are only two ways for plaintiff to get additional money on the table.

One is for the plaintiff to make a demand excess of the defendant’s purported ceiling, which would require the attorney or adjuster to call someone higher up in the insurance company to get more authority or money to offer. Sometimes this is successful, but sometimes it is not.

The second way is to negotiate up to the defendant’s top-dollar settlement offer and then to make a counter demand for taxable court costs. Most medical malpractice carriers are able to pay taxable court costs without obtaining additional authority, or even consent from the insured defendant.

Plus, although any settlement amount paid on behalf of a physician must be reported to the National Practitioner Databank, that is not the case for taxable court costs, which are considered non-reportable.

For these reasons, I think it is always a good idea to consider asking for taxable court costs to be added on to the final settlement offer in any mediation.

If you’ve been seriously injured because of poor healthcare, hire a top-rated skilled Houston, Texas medical malpractice lawyer, who can help you navigate your claim in this complicated area of the law.

Robert Painter is an award-winning 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 all over Texas. Contact him by calling 281-580-8800 or emailing him right now.


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