Paul Sanchez
Medical malpractice lawsuits are often complex and expensive, with many variables at play. The cost of suing for medical malpractice depends on several factors, including the specifics of the case, the jurisdiction, and the type of damages claimed. In the US, medical malpractice cases are notoriously difficult to win, and it is not uncommon for an injured patient to receive nothing. Most medical malpractice lawyers work under a contingency fee agreement, with the lawyer's fee paid as a percentage of any compensation received. This can range from 30% to 40% of the settlement amount. Expert witnesses, who are often crucial to proving a case, can also charge hundreds or thousands of dollars per hour. While there may be caps on the amount of compensation that can be awarded, these vary by state and are subject to change.
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What You'll Learn
Average settlement amounts
The average medical malpractice settlement in the US is $348,065, according to the Medical Malpractice Report by the National Practitioner Data Bank. However, the amount of a malpractice settlement depends on the treatment costs of individual injuries and the extent of long-term financial harm. These factors vary from person to person.
In the US, damages in medical malpractice cases are divided into two categories: economic and non-economic. Economic damages compensate the plaintiff for bills and tangible losses incurred as a result of the injury, including medical expenses, lost income, and diminished future earnings capacity. Non-economic damages compensate the plaintiff for intangible losses, such as pain and suffering, which are hard to assign a financial value. The average medical malpractice settlement in the United States is $242,000, with 96.5% of cases ending in settlements and 3.5% resulting in court judgments.
In certain states, damage caps limit the amount of money a plaintiff can recover or a defendant must pay. For example, in Texas, there is a cap on non-economic damages, with a plaintiff able to recover $250,000 from any single health care institution and $500,000 from all health care institutions named as defendants.
The cost of bringing a medical malpractice claim includes lawyer fees, court filing fees, and fees for obtaining medical records. Most medical malpractice lawyers work under a contingency fee agreement, with the average fee being around 33%. Expert witnesses can also be costly, charging hundreds or thousands of dollars per hour to review documents and testify.
In wrongful death claims, the calculation of settlements is complex and depends on factors such as the age, health, and earning capacity of the deceased, as well as the survivors' financial dependency on the deceased.
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Statute of limitations
The statute of limitations imposes a time limit on your right to file a lawsuit, ensuring that lawsuits are heard in a timely manner. The deadlines vary by state, with most states allowing victims of malpractice somewhere between two to six years from the date of their injury to file a lawsuit.
In California, the statute of limitations for medical malpractice lawsuits is one year from the date the plaintiff discovers, or through the use of reasonable diligence should have discovered, the injury, or within three years of the date of the injury, whichever comes first. There are exceptions to this statute, including cases of intentional concealment, fraud, and the presence of a foreign body that serves no medical purpose. Minors under the age of six have three years from the date of injury to file a lawsuit or before they turn eight years old.
Pennsylvania has a two-year deadline for medical malpractice lawsuits from when the malpractice was first discovered or should have been discovered. There is a seven-year statute of repose with exceptions for cases involving minors and when a foreign object is left inside the body during surgery.
Alabama has a two-year statute of limitations from the date of the injury or when the claimant knew or reasonably should have known they were injured.
Illinois has a four-year statute of repose on most medical malpractice claims. The state law extends the statute of limitations to allow minors to file a legal action for up to eight years after the injury occurred or until they turn 22.
Florida has a four-year statute of limitations, with the discovery rule providing relief from the two-year statute of limitations.
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Damages caps
The controversy surrounding damages caps involves several issues. Firstly, there is a question of whether they reduce malpractice premiums and lower health insurance costs for consumers. Some studies suggest that well-designed damages caps reduce liability insurance premiums, but the impact on health insurance premiums is less clear, with one study finding no effect. Secondly, there is a debate about fair compensation for injured patients. Courts in several states, including Alabama, Wisconsin, and Oregon, have ruled damages caps as unconstitutional, infringing on the right to a jury trial and equal protection guarantees.
The type of damage caps in place also varies. Some states have caps on non-economic damages, such as pain and suffering, while others have caps on punitive damages, which aim to punish defendants for egregious behaviour. Additionally, some states have a hard cap that cannot be exceeded, regardless of the type of damage. The number of states with damage caps is constantly evolving, and it is essential to check the specific laws in your state.
The costs of bringing a medical malpractice claim include attorney fees, which are typically paid on a contingency basis, with the lawyer receiving a percentage of the compensation. Expert witness fees can also be significant, ranging from hundreds to thousands of dollars per hour. Other expenses include court filing fees and medical record retrieval costs.
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Expert witnesses
The role of an expert witness in a medical malpractice lawsuit is to provide an expert opinion based on the facts of the case. They help determine whether the medical professional's conduct was negligent by evaluating whether their actions or inactions violated the standard of care within the profession. Expert witnesses also assist in establishing causation, which can be challenging in medical malpractice cases. They determine whether the plaintiff's injuries were caused by the defendant's sub-standard care or by the underlying disease or condition being treated.
The selection of an expert witness requires careful consideration. Credentials, current medical licenses, relevant board certifications, and prior disciplinary history should all be scrutinized. The expert's professional background and courtroom experience can impact their ability to effectively communicate intricate medical concepts to a jury. Additionally, the cost of expert witness fees should be considered, as they can be significant and accumulate quickly, especially if the expert conducts extensive analysis or spends a considerable amount of time testifying.
It is important to note that expert witnesses themselves can be held liable for malpractice if their testimony is deemed negligent or if they breach patient confidentiality. While witness immunity protects their right to testify without fear of legal retribution, courts have clarified that immunity is not absolute and depends on the fact-finding function of the court and the interest in having witnesses speak freely. Therefore, expert witnesses must exercise the same degree of care, skill, and proficiency expected of other members of their profession.
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Contingency fees
The most common contingency fee percentage in a medical malpractice case is around 33%. Some \"sliding scale\" agreements set a different percentage for different circumstances. For example, a certain percentage may be agreed upon if the case settles before pre-trial proceedings, with a higher percentage if the case settles after that point. In some states, the percentage that a medical malpractice attorney can receive is regulated by statute, often broken down by the total amount received by the client. For instance, in New York, an attorney can take 30% of the first $250,000 a medical malpractice client receives. Although most contingency fees are between 30 and 40%, the amount may be negotiable depending on various factors.
While contingency fees can provide access to justice and quality legal representation, there are some potential drawbacks to consider. One major flaw is that the attorney might not get paid at all if the case is lost, and they must absorb the costs incurred during the legal proceedings. Additionally, contingency fees may result in higher overall costs if the case is successful, as the attorney's fee is a percentage of the total award. Nevertheless, contingency fees can be a pragmatic option, especially for those who cannot afford the high upfront costs of legal proceedings.
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Frequently asked questions
The cost of suing for medical malpractice depends on several factors, including the specifics of your case. It can cost between $100 to $500 to file your lawsuit, and you may need to pay for certain medical records to help provide your case. Expert witnesses can charge hundreds or even thousands of dollars per hour to review documents and testify. Most lawyers use a contingency fee agreement, meaning that a percentage of the settlement you receive will go towards paying your lawyer. The most common contingency fee percentage in a medical malpractice case is around 33%.
The amount of money you might recover for your medical malpractice claim depends on the details of your case. There are some general trends regarding payouts that might help you evaluate your claim. Claims that only result in minimal short-term damages will usually result in lower average settlement amounts and verdicts. Damages in medical malpractice cases are divided into two categories: economic and non-economic. Economic damages are quantifiable damages, including compensation for past and future medical care, loss of past earnings, and diminished future earning capacity. Non-economic damages are the non-financial effects that the medical malpractice has had on the patient and their life, such as pain and suffering.
There are three categories of damages available in medical malpractice cases: general, special, and punitive. General damages are also known as non-economic damages. Special damages are also called economic damages. Punitive damages are only available for extreme cases of medical malpractice.
The statute of limitations for medical malpractice lawsuits varies by state. In Florida, the statute of limitations is two years from the date of discovery of the medical negligence but no longer than four years. Cases involving fraud or minors may have an exemption to the two-year statute of limitations.
