Texans experiencing bad medical outcomes which they suspect is due to substandard medical care find it extremely difficult to obtain legal representation. Why is that?
A medical provider may be held liable if they fail to meet the accepted standard of care required for diagnosis and treatment of a particular condition, and the claimant suffers damages due to failure to meet this standard. This ‘standard of care’ varies for each person, their medical history, and each condition. It can be proved only by the testimony of an expert witness, usually another doctor with the same expertise as the treating provider.
In 2003 the Texas Legislature passed laws that made it much more difficult for claimants to prevail in a medical malpractice claim. Some of the roadblocks enacted are:
- There is a two-year statute of limitations from when the harm occurs.
- If a person is injured due to emergency room neglect, the standard is higher than failing to meet the ‘standard of care’. One would have to prove ‘willful and wonton’ action. That is the medical provider knew of the danger of harm but went ahead with the conduct anyway.
- Within a few months of filing the suit, a claimant must obtain the report of an expert witness that specifically points out the standard of care that the treating medical provider failed to meet. Hiring an expert for a report of this kind typically costs thousands of dollars. Failing to provide such a report, or the court finds the report is deficient, can result in the case being dismissed, and the claimant being assessed to pay the defendant’s attorney fees and costs.
- If remedial medical treatment was paid for by insurance, Medicare, or Medicaid, or there are unpaid medical bills (liens), these parties may have a right to recover these amounts out of any recovery obtained by the claimant.
- A claimant can recover loss of income only if they can engage in income-earning activity but for the medical injury. For persons receiving disability income, permanently retired, receiving social security or retirement income, they may not be able to receive an award for lost wages.
- The limit for pain and suffering damages is $250,000, no matter how horrible the injury (coma, brain injury, burns, amputation, paralysis).
The typical costs for attorney fees ( amount of time spent times attorney’s hourly rate) and litigation costs (hiring expert witnesses, depositions, obtaining medical records) to take a case to trial runs in the $100,000 plus category and typically takes 2 years. If the matter is appealed, this will require several more years and tens of thousands of dollars in additional attorney fees and costs.
Where a claimant is not able to fund the litigation, the alternative is a contingency contract where a claimant agrees to pay between 30% and 40% of any recovery plus all the costs. The attorney takes all the risks in this case.
An attorney will not take a medical malpractice case if the facts are not favorable, and even if favorable, the amount of damages is insufficient after deducting attorney fees, costs, and medical liens the claimant will not be left with a reasonable sum.
When you call an attorney about a medical malpractice claim, he or she makes an instant calculation based on the above factors, and if you do not get a favorable response, do not be afraid to ask why.