One thing that victims of medical malpractice in Texas soon realize is that its not so easy finding an attorney to take their case. This leaves the victims in a bad situation, with no help in sight. But why is it so hard to find a lawyer to take a medical malpractice case in Texas?
This is because in 2003 the Texas legislature enacted the Medical Liability Act, which was aimed at doing away with medical malpractice claims, including even legitimate claims. These laws made most medical malpractice claims too expensive to pursue, thus discouraging lawyers from taking the vast majority of medical malpractice cases.
There have been significant changes in healthcare legislation since the early 2000s. Before the legal structure changed it was possible for injury victims to receive adequate compensation for medical negligence caused by a physician. Now, it’s nearly impossible for injured victims to find an attorney who will take their case unless there are significant damages involved.
How Do Texas Laws Hurt Medical Malpractice Victims?
The Medical Liability Act provided for two big changes that hurts victims of medical malpractice:
- It placed caps on damages that can be recovered against any single doctor or medical facility. No matter how bad the injuries, a victim is capped at $250,000 for non-economic damages.
- It imposed a requirement that the injured victim pay for and file an expert report early on in the case.
Caps on Damages
With caps on damages in place, it restricted the amount that a victim can receive, thus significantly reducing the value of a medical malpractice case. According to the Texas Civil Practice and Remedies Code, the most an individual can receive for “noneconomic damages” – meaning intangible damages such as pain, suffering, emotional distress, etc. is $250,000. If the victim dies, his or her heirs will be limited to $500,000 maximum recovery no matter how many medical providers are involved, or how grievous the offense or negligence.
Even though $250,000 may sound like a lot of money, when you consider the economics behind a medical malpractice lawsuit you soon realize why many lawyers will turn down an average medical malpractice case. First, the expert fees to produce the report and testify at trial can range from $10,000 to $50,000. There are also depositions that must be completed, and medical records that will be subpoenaed, which can quickly add another $20,000 to $50,000 to a case. Keep in mind, the attorney pays for all of these costs and only gets reimbursed if he or she wins your case.
Additionally, because defense lawyers know that the most they’ll have to pay is capped at $250,000, they have no incentive to offer the victim anywhere near that amount. After all, they can take their chances at trial and are no worse off because the most they will ever have to pay is $250,000. As a result, nearly every medical malpractice claim in Texas will have to proceed to trial in order for the victim to receive the $250,000 amount. When you add up all of these costs that an attorney must cover to bring a medical malpractice case, it’s not hard to see why most attorneys will turn down the average medical malpractice claim – the risk is just not worth the reward (this is exactly the consequence the Texas Legislature intended when it created the law).
The Texas Civil Practice and Remedies Code also implemented the expert report requirement, meaning that anyone filing a healthcare liability claim must also file an expert report claim within 120 days of filing the lawsuit. The courts may grant a one time 30-day extension but failure to get the expert report in a timely manner will result in the dismissal of your lawsuit.
This can be a huge liability for a lawyer. If the medical expert they hire does an unacceptable job with their report – it can result in the lawyer being sued for legal malpractice. Lawyers will not take this risk for a case that seems questionable or hard-to-prove causation. There is too much financial risk when compared to the potential rewards.
In addition, the medical experts who review the medical records and write the expert reports can charge anywhere from tens of thousands of dollars for their time. They also charge additionally to testify in court. Thus, the export report can cost anywhere from 10,000 – 50,000 for the attorney.
Texas Medical Liability Act Unfairly Punishes Women and Elderly Persons
Another consequence of the Texas Medical Liability Act is that it unfairly punishes some women and elderly persons. The Medical Liability Act and it’s restrictions create a situation where essentially the only viable malpractice cases are those for which there is ongoing economic harm, such as lost wages, etc. As a result, the law is prejudicial against stay at home moms and retired persons because these groups of people generally don’t have ongoing economic hard in the form of “lost future wages.”
It’s difficult to understand why the Texas legislature would establish law that punishes these victims, yet that is precisely what the law does.
Getting Help If You’re the Victim of Medical Malpractice
Medical liability reform in Texas has made it extremely difficult for victims of medical malpractice and injury attorneys to successfully file and receive adequate compensation from doctors and hospitals for their negligence. The act has made most malpractice claims in Texas economically unfeasible, which is why many victims of medical negligence in Texas will have a very hard time finding a lawyer to represent them.
We Help Victims of Medical Malpractice
If you or a loved one has been injured due to a doctor’s negligence, you must act quickly because time is not on your side.
We help victims of medical malpractice, and can probably help you also. We provide a FREE 5-Point case analysis to help you understand your case, including the strengths and potential weaknesses. Contact us today at (210) 910-4357 to set up your Case Analysis and get us working to protect your rights.