Why Can’t I Find a Medical Malpractice Lawyer to Take My Case?
October 24th, 2018
Unfortunately, many victims of medical malpractice in Texas find themselves in a bad situation with no one to help. Several laws aimed at doing away with legitimate medical malpractice claims were passed by the Texas legislature in the past 15 years under the guise of “Tort Reform.” While the television ads and vast amount of information disseminated online stole the hearts and minds of the voters by claiming it was aimed at preventing frivolous lawsuits and holding down health care costs, the real laws that were passed accomplished the limiting of frivolous lawsuits by doing away with many medical malpractice lawsuits altogether. They effectively threw the baby out with the bath water. Now, in order to find a lawyer who will help you when you, having a legitimate beef against a doctor for negligence is not enough. Your case must fall into the right criteria so that the claim is not cost-prohibitive.
What Did Tort Reform Change About Medical Malpractice Law in Texas?
Tort reform attacked medical malpractice claims in two major ways:
- It placed caps on damages that can be recovered against any single doctor or medical facility, and;
- It imposed a requirement that the injured victim pay for and file an expert report early on in the case.
The damage caps provision restricts the amount that a person can recover for certain damages thereby reducing the value of all medical malpractice claims without discriminating between frivolous or legitimate. The expert report requirement places a barrier to medical malpractice victims’ access to the court system because it is both expensive and creates a legal malpractice trap for lawyers.
What are the Damage Caps on Texas Medical Malpractice Lawsuits?
In 2003, the Texas Legislature passed Chapter 74.301 of the Texas Civil Practice and Remedies Code which imposed caps on noneconomic damages a jury can award against doctors and medical facilities both individually and collectively. Noneconomic damages are intangible damages such as pain, suffering, physical impairment and emotional distress. These are the real compensatory damages for the suffering that a person has been through. Under Chapter 74.301, there is a cap of $250,000.00 per individual doctor or hospital that any single claimant may be awarded for noneconomic damages. Additionally, where multiple medical providers are involved in the negligence, there is an additional total cap of $500,000.00 on the noneconomic damages one may recover. Thus, if you are injured by a single doctor’s negligence, the most you can get over and above economic damages is $250,000.00. Additionally, if the victim dies, the heirs are limited to a total recovery of $500,000.00 maximum regardless of how many doctors or medical providers are involved.
What is the Expert Report Requirement Under Texas Medical Malpractice Law?
Texas Civil Practice and Remedies Code Section 74,351, also added in 2003, imposes a requirement that anyone filing a healthcare liability claim must file an expert report from a qualified medical expert detailing the standard of care that was violated and how it was violated by each alleged defendant. The report must be filed within 120 days of filing the lawsuit. Aside from one 30-day extension that the Court may grant, failure to timely file a report or to file on that can stand up to the defenses challenges results in the case being dismissed and barred forever. This is a major legal malpractice for a lawyer if he hires a medical expert that does a shoddy report—it gets the lawyer sued for legal malpractice. So lawyers are not going to stick their neck out on a case of questionable or hard-to-prove causation. It simply is not worth the risk.
In addition to the above hurdle these reports create, they create a cost factor. Medical experts who review the medical records and write these reports often charge tens of thousands of dollars for their time. Then you have to pay them again later to testify in the case. So you can anticipate 10,000.00-50,000.00 in expert witness fees alone in many of these cases.
Well $250,000 Plus Economic Damages Sounds Like a Lot So Why Can’t I Find a Lawyer?
The damage caps may not seem like that big of a deal on first blush. To understand the problem they create, you must understand the economics of a lawsuit and the real effect of a capped protection on negotiating. In addition to expert fees that may run 10,000.00-50,000.00, you can expect several depositions that need to be done, records subpoenaed and other case costs that can run your litigation expense bill up to 20,000.00-100,000.00.
Moreover, when the defense have a protective cap on how much they can be made to pay, why would they ever offer to pay you the $250,000? They can force you to trial and that is the worst they will do on noneconomic damages. Thus, they are not likely to offer you anywhere near the cap to settle. This means that your lawyer is likely to have to go to trial to get close to full value and he will likely spend a good part of that to get there—leaving you with little if any compensation and him with no attorney fees to show for the risk he took investing 100,000.00 in your case.
How Do You Get Around the $250,000 Damage Cap?
The cap applies to noneconomic damages only for each individual act of negligence. Economic damages include medical expenses (past and future) and lost earnings (past and future). Thus, to avoid the limitations of the cap, you need a victim who has either has really high medical bills, or has been injured to the point of requiring substantial future medical bills and/or is unable to work again. This, law is prejudicial against retired persons and housewives who are injured or but do not require ongoing care as a result. They have no significant future economics to justify the risk of investing 50,000.00 or 100,000.00 to pursue the claim. Thus, many Texas medical malpractice lawyers will not take on such a case.
What Other Kind of Facts Make it Hard to Find a Medical Malpractice Lawyer in Texas?
Some cases simply will not hold up in court such as when you suffer known complications that cannot be prevented and they were disclosed to you via a waiver. Common infections at the surgical site often fall under this category. Additionally, high damage cases where the is only one defendant with limited insurance coverage can put the lawyer in the position of effectively working just to recover money for the health insurance company and or medical providers who have outstanding bills.
Talk to a Lawyer About Your Case
Every case is different based upon its own set of facts. Just because the first lawyer you spoke to did not take it does not mean you do not have a case. Do not be afraid to call several medical malpractice lawyers to get multiple perspectives if the first few decline the case. You can also call us at 713-932-0777 for a free case review.
Paul Cannon has practiced personal injury trial law since 1995. He is Board Certified in Personal Injury Trial Law (2005). He has earned recognition as a Super Lawyer by Thompson Reuters in 2017 & 2018, and as a Top 100 Trial Lawyer by the National Trial Lawyers Association in 2017. He is a Shareholder, trial lawyer and online marketing manager at Simmons and Fletcher, P.C. His legal writings have been published by the Texas Bar Journal, Business.com, Lawyer.com HG Legal Resources, Lawfirms.com, and others. He has been asked to give education talks and media interviews on dog bite law.