Tort reform advocates falsely claim that there’s a significant problem with plaintiffs’ attorneys filing frivolous lawsuits. The truth is that the best Texas medical malpractice lawyers are careful about what cases they accept and file. There are two main reasons for this, both of which deal with the harms, losses, and damages to a patient.
Not every medical error is negligence
First, not all medical errors amount to medical negligence. If a doctor or nurse makes a mistake while treating a patient, but the patient isn’t injured or harmed, then there’s no negligence. The reason for this is that to prove a claim for negligence in court, a plaintiff must prove that a healthcare provider did something wrong that caused injury or harm to the patient. Without injury or harm, there’s no case. A close call will certainly frighten and rattle a patient and family, but that’s not enough.
Think about a non-medical example. Let’s say I was driving home from my office, and I turned right on Champion Forest Drive and stopped at a red light at FM 1960 West. When the light turned green, I started going through the intersection, but then a man raced through a red light and almost hit me. The adrenaline would be rushing in my body and my heart would be beating fast. The other driver broke the law, but because he didn’t hit my car, I couldn’t file a lawsuit against him.
There must be significant injuries and damages to justify investment in a case
Second, the best medical malpractice lawyers handle cases on a contingency fee basis. The attorney advances all cases expenses and will only be reimbursed for them, along with attorney’s fees, if there’s a settlement or successful jury verdict.
To stay in business, then, attorneys need to be selective about the cases they accept. After all, every medical malpractice case is expensive to work up.
Thus, even when there’s a medical error that injured a patient, the harms, losses, and damages must be severe enough to justify the considerable investment of time and money in a medical negligence lawsuit. This typically means that a patient must have a severe, permanent, and life-changing injury. There are a few reasons for this.
The impact of Texas tort reform caps
One reason is the Texas tort reform on non-economic damages, which are things like physical pain and suffering, mental anguish, physical impairment, and the loss of a relationship. For many people, these are the most harmful losses that they experience in medical malpractice—things like losing a spouse or child because of wrongful death, losing the ability to walk and get around independently, and constant pain.
Texas law caps non-economic damages at $250,000 as to all physicians combined. There’s a separate non-economic damages cap at $250,000 per hospital involved, up to a total of $500,000. For most patients, the cap will be $250,000, or $500,000 at the most.
Then, practically speaking, defendants and their insurance companies won’t even pay that amount to settle a case. Insurance companies realize that they won’t have to pay more than the cap even if they lose the case in court, so they’ll want a discount from that amount to reach a settlement at mediation.
Case expenses are expensive
A second reason is the considerable expense for preparing a medical malpractice case for trial. The largest expense by far is paying for medical expert witnesses, which are required by Texas law.
Doctors and nurses don’t work for free. Even in a straightforward case where only one medical expert is needed, the cost to prepare the case for settlement will be around $20,000. If the case goes to trial before a judge and jury, the cost will be even more, because of additional expert fees. Some cases may require multiple experts and many times that expense.
Texas law isn’t fair
For a case to make business sense to pursue, the patient involved must have been seriously and permanently injured in a way that generates economic damages. That means things like lost wages, loss of the ability to work in the future, a pile of medical bills because of the negligence, and the need for significant future care and treatment. This type of damages isn’t impacted by tort reform caps.
It’s probably occurred to you by now that Texas tort reform law discriminates against the elderly, the unemployed, and stay at home moms or parents who perform significant work but don’t earn a paycheck.
Both victims of medical malpractice and attorneys are stuck with what our unfair laws allow. Top Texas medical malpractice lawyers balance all of these considerations when deciding which cases to accept. My goal is to take those cases where we can likely secure a recovery that would make business sense for our law firm, while having a satisfied client at the successful resolution of the case.
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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.