2/15/2022 – Medical Malpractice – gtg



Medical Malpractice

I receive over 250 requests to evaluate potential medical malpractice claims a year. Most of these requests appear to have valid claims against a healthcare provider for errors in providing medical services or failure to provide services. In most situations, in order to properly evaluate a potential claim, records need to be obtained and the records need to be reviewed by a medical expert. The cost of time and money to obtain records and have them reviewed generally is between $1,500 and $2,500. About one in fifty of these potential claims appear to be “economically viable”.

It is therefore essential that I pick through the requests and evaluate only those that have a high probability of being “economically viable” unless the potential client pays for the evaluation. To properly evaluate all apparently valid claims that I receive, I would be spending about $500,000 a year ($2,000 X 250). From years of experience, I know that I will only find about five cases out of 250 that will be “economically viable”. “Economically viable” means that the chance of winning and the amount of the potential award are high enough to offset the enormous costs of time and money to pursue the case.

The cases that are potential “economically viable” are those cases that are the most outrageous, include clear liability on the part of the healthcare provider, and whose “economic damages” are in excess of a million dollars. The reason that the threshold for “economically viable” is so high is due to the roadblocks to medical malpractice lawsuits created by the healthcare industry and its insurance companies to keep YOU from successfully pursuing just and proper claims against healthcare professionals. Who benefits from this law? Who is prejudiced by this law? Who do you think was behind getting the legislature to pass laws that DO NOT hold healthcare providers liable for their errors in the same way as every other professional?

What is Medical Malpractice?
Medical malpractice or medical negligence occurs when a doctor or other healthcare provider breaches his or her duty to a patient to perform treatment in accordance with the “standard of care”. The “standard of care” requires that a healthcare provider exercise adequately the skill, knowledge, and care ordinarily possessed and exercised by other members of the profession acting under similar conditions and circumstances.

What can I recover in a Medical Malpractice Case?
As in any other personal injury case, the damages which can be recovered in a medical malpractice case fall into two classifications: “special damages” and “general damages”. “Special damages, or “economic”, damages, are the “cost” of medical care, the “cost” of special medical devices, “costs” the plaintiff will incur in on order to continue to function, the loss of future earnings, and other “out of pocket” expenses/losses. “General Damages” or “non-economic” damages, are the compensation to the plaintiff for the pain, suffering, disfigurement, embarrassment, loss of enjoyment of life, and so on.

Legislative Limit on “Non-Economic/General” Damages
The Texas Legislature limited the plaintiff’s ability to recover “non-economic” damages to $250,000. No matter how much pain the plaintiff has/will suffer, no matter how their future life has been altered, no matter the disfigurement, no matter that they will never walk again, hold their child, or enjoy the normal functions and joys of life, the limit on “non-economic damages” is $250,000.

Proving Medical Malpractice
It is expensive to gather and present the evidence needed to prove that a provider had fallen below the standard of care. Plaintiffs in medical malpractice cases need to hire expert witnesses to testify on the issues of (1) the “standard of care”; (2) the provider’s breach of that standard; (3) the causal relationship between the negligence and the injuries caused; and (4) the cost of the future care for the injuries caused; and (5) any loss of earnings over the lifetime of the plaintiff. Most plaintiffs cannot afford the cost of hiring these experts ($50,000 – $100,000+), especially at a time when they are dealing with the changes in their life caused by the malpractice. Plaintiffs are left to rely on attorneys to advance these litigation costs in the hope that the recoveries in their cases will repay those costs. The only part of the recovery by the plaintiff that can repay the costs without compromising that plaintiff’s future medical care, nursing care, equipment needs, or lost income is the “non-economic damages” portion of the recovery which has been limited by Texas law.

The Economics of a Medical Malpractice Case
When considering the costs of pursuing a medical malpractice case ($50,000 to $100,000+ in costs) plus attorneys fees and the projected outcome of a jury award, it becomes apparent that the only “economically viable” medical malpractice cases are those with very large “economic damages”.

What about a Death caused by Medical Malpractice?
In cases involving a death, the same basic analysis applies like any other personal injury case, except for the non-economic damages and the attorney’s fees. Non-economic damages remember are limited to $250,000. In addition to non-economic damages, the hires are entitled to recover the incurred medical and funeral expenses as well as loss of income that they would have otherwise received but for the death. This situation results in most death cases of a relative that was not supporting someone, being not “economically viable”, even though life has been wrongfully taken.

Why are Plaintiffs Law Firms reluctant to take Medical Malpractice Cases?
In the vast majority of cases, the profit margin is too low or non-existent. It is much more expensive to pursue medical malpractice claims than it is for almost every other type of personal injury claim with the exception of products liability claims against automobile manufacturers and drug manufacturers. The amount of work required by the plaintiff’s law firms in a medical malpractice case is as high as in auto and drug manufacturer cases. The plaintiffs’ law firms don’t want to work on and invest their money in cases that are substantially more difficult, are substantially riskier, and pay substantially less. Generally, juries are much more likely to hold an automobile or drug manufacturer accountable for their wrongdoing than they are the local doctor or healthcare provider.

What are my options?
If I believed your claim was “economically viable”, meaning it includes clear liability and/or outrageous conduct on the part of the healthcare provider and “economic damages” are in excess of a million dollars (medical expenses and lost income), I would have undertaken an evaluation of your claim at my expense and you would not have received this letter. However, I do not believe that the claim that you presented to me is “economically viable” for my firm to take on.

I suggest that you shop with other law firms. See if another attorney evaluates your claim differently than I do. Your other option is to pay a law firm to fully evaluate your claim. Some law firms will fully evaluate medical malpractice claims for a fee, generally $1,000 to $5,000 depending upon the complexity of the facts. We do not evaluate claims for a fee. If I thought it was a good idea for you to spend your money on an evaluation, I would have spent mine. If you want a full evaluation for peace of mind, then it may be worth the cost to you to pay a law firm to fully evaluate your claim.

I think you have misjudged my claim.
If you believe that I have misjudged your claim, please bring to my attention any facts or circumstances that I may have not properly considered.

Please Keep In Mind
Please keep in mind, in Texas for medical malpractice claims in almost every situation (other than minors), failure to file a lawsuit within two years of the injury results in the loss of all ability to pursue legal rights through the court system. Further, please keep in mind, that until I formally accept a case (a written retainer agreement is signed), I am not your attorney nor am I representing you. The fact that we may be corresponding about possible representation does not make me your attorney.