Medical malpractice laws were put in place to ensure that patients injured by negligent medical treatment were able to get some type of civil justice for the wrong done unto them. Unfortunately, there has been much pressure over the years to limit the amount of compensation awarded to victims of medical malpractice, due to a perceived contribution to increased cost of medical care. I won't get into that debate, but rather, discuss how these pressures may limit an injured patient's rights regarding justice.
The Economics of Medical Malpractice
Pursing an injury claim for medical negligence is extraordinarily difficult and expensive. In order to build a good medical malpractice case, medical professionals must be consulted and hired to investigate the details of the treatment to determine if and how negligence occurred, and how it contributed to an undue injury to the patient.
All of the expenses in building a strong case add up quickly, and can easily exceed $50,000, $100,000 or more. In order to make a living practicing medical malpractice law, an attorney has to be fairly picky about which cases to take on. Since almost all medical malpractice cases are handled on a contingency fee basis, the attorney has to front all the costs of building and prosecuting the claim. An unsuccessful case may mean a loss of thousands of dollars or more to the law firm.
Furthermore, those cases where damages are not significant are usually not viable from an economic point of view. For example, if a patient is injured during surgery, and the medical costs and lost income amount to only $10,000, it will probably cost more to bring a medical malpractice lawsuit than the jury would be able to award.
How Non-Economic Damages Help
Non-economic damages are those which are not directly measured against financial losses caused by a civil wrong. Most commonly, pain and suffering is used as a way to compensate patients injured by medical malpractice to cover the mental and physical anguish caused by the doctor or hospital negligence.
This also has the function of allowing patients with smaller economic damages to recover more money from their claim, and allows attorneys to help more medical malpractice victims by taking on cases that otherwise would not be economically feasible.
To illustrate this point, think about a medical malpractice claim involving the death of a successful 30 year old businessman. The family members would be able to file a lawsuit demanding compensation for all the income that he would have earned had his life not been cut short by the incident. That could be substantial and surely more than enough to cover the costs of building the case and bringing the lawsuit.
Now, think about a medical malpractice claim involving the loss of a child due to medical negligence at birth. For the parents, the economic damages may not be substantial; maybe just the associated medical expenses and lost time from work. From a financial perspective (and from the perspective of economic damages in civil law) the loss of that child does not significantly impact the parents. However, there is a significant emotional toll taken by the loss of a child, and a civil suit would seek significant monetary compensation for that. Without the emotional distress, and damages for pain and suffering, the parents would likely not be able to seek any type of legal justice. It would simply be too cost-prohibitive.
How Caps Limit Patients and Family Members Options
Caps have been put into place in many states, limiting the amount of money that may be awarded for non-economic damages like pain and suffering, and emotional distress. California, for example, has placed a cap of $250,000 on these damages. This may seem like a lot, but when you consider the costs of filing a suit, and the 30-40% that an attorney is paid, it becomes clear that many victims may have a very hard time convincing an attorney to risk taking on their case. For these people, civil justice is limited, not for any legal weakness in their case, but simply because they weren't "injured enough".
For Maryland and Washington D.C. Residents
In Maryland, the cap on pain and suffering is $680,000, but can vary depending on the date of injury, number of claimants and circumstances of the case. We also work with many clients from Washington D.C. where there are currently no limits on medical malpractice awards, so we are able to take on many cases that might be impossible in other states.
How to Determine if Yours is a Good Case
Like I said earlier, medical malpractice cases are uniquely complex, and it really takes someone with experience to examine the legal and economic factors that determine the chance of success. In order to find out if any particular case is a "strong" one, and whether the victims have a good chance of obtaining justice, talk to a medical malpractice lawyer practicing in your state. Most will offer a free consultation where you can get guidance and real legal advice about your options.From the author: Maryland Medical Malpractice Attorney