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When you or someone you care about suffers an injury during or as the result of medical treatment, the question of whether the injury gives rise to a legal claim can be a difficult one. At Burg Simpson, we’re here to help you find the answer. In civil litigation, such as a medical malpractice lawsuit, it is the Plaintiff (injured party) who carried the burden of proof. This means that you must be able to demonstrate, to the required legal standards, that:
- The healthcare providers you want to sue actually made an error in the care they provided to you; AND
- Their specific error caused or exacerbated your injury, or eliminated a chance you may have had for recovery; AND
- That you have suffered damages in an amount sufficient to justify the costs and time associated with litigation, and for which you can be compensated by a jury.
There are numerous instances in which physicians or other healthcare providers may do or say something insensitive, incorrect, or downright rude—this type of conduct, while it may amount to a poor bedside manner, is usually not going to be considered malpractice.
If you believe that you were injured as a result of a healthcare provider’s negligence, please call us to discuss your situation, we’re here to help. There is never any charge for an initial consultation. And often, if we are not able to help you, we can recommend someone who can.
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There are several types of attorney fee arrangements that may be available to you. Your financial means is an important consideration in choosing the manner in which you will compensate your lawyers. Most often, medical malpractice plaintiffs cannot afford to pursue a case using any fee agreement other than the contingent variety. However, there are some clients who prefer to pay their attorneys an hourly rate, and to pay that bill each month. Medical malpractice claims are almost never handled on a fixed fee basis, because these claims are so time consuming and complex. Briefly, the various types of fee arrangements are as follows:
- “Time based” means a fee that is determined by the amount of time involved, such as so much per hour, day or week.
- “Fixed” means a fee that is based on an agreed amount regardless of the time or effort involved or the result obtained. Some attorneys also call this a ‘flat rate.’ This type of fee is common in things like divorce, incorporating a business, and other similar tasks that are predictable in terms of the amount of work the lawyer can anticipate doing.
- “Contingent” means a certain agreed percentage or amount that is payable only upon attaining a recovery, regardless of the time or effort involved.
Occasionally, a combination of the above fee arrangements may be used as well. Not all attorneys offer all of these different types of fee arrangements. You, the client, need to determine what type of fee arrangement suits your needs, and you may need to contact multiple attorneys to determine if they can provide the type of fee arrangement you believe you need.
How much will it cost to pursue a claim with your firm? How will you be paid? Can I afford to hire your firm?
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Fees are what you pay your attorneys and paralegals for their time and expertise. If your case is being handled on a “contingency” fee agreement, that means that you will not pay any fees to the attorneys unless or until they get a recovery for you. If there is a recovery, the contingent fee agreement will dictate the percentage of that recovery that will be paid to the attorneys for their work on the case. If there is no recovery, a contingent fee agreement usually will state that no fees will be charged to you. If your case is being handled on an hourly basis, you will receive a monthly bill detailing the time spent by any of the attorneys or paralegals on your case, and the rates for each of those people may vary. You should receive a disclosure at the time you sign your fee agreement as to what each person’s hourly rates are. On an hourly fee agreement, you will be required to pay your bills each month, even if you do not get a good outcome with your case.
Costs are different from fees. Costs/expenses are the funds advanced on your behalf in order to prepare your claim. Costs accrue in cases without regard to whether the client has an hourly or contingent fee agreement. With a contingent fee agreement, you will repay the law firm for your costs at the end of the litigation, usually out of the recovery that is obtained for you. If you are on an hourly fee agreement, you may be required to pay the costs monthly, as part of your monthly bill.
How costs are handled by law firms
Firms handle costs in different ways. Some firms will ask you to give some type of collateral to cover the costs of your litigation—up to and including taking a lien on your house. If you give a lien on your home to cover the costs of your case, and you do not pay those costs back to the firm who holds the lien, that firm could foreclose on your home and take it away from you. Firms with strong financial resources generally do not engage in this practice. As such, BE VERY CAUTIOUS when hiring an attorney, that you carefully read the fee agreement, so that you clearly understand what the costs arrangement really is. Not all firms require their clients to give title to their homes or put up other forms of collateral to cover the costs of pursuing their claim—so it is very important to do your homework before hiring a law firm to handle your case.
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Medical malpractice cases are difficult, time consuming, and expensive. On average, it takes between 18-24 months to get from the initial filing of the case to resolution, either through settlement or trial. Some cases can be resolved more quickly, and others take even longer—this is very dependent on the particular issues involved in your case. Even when claims resolve “quickly” this often means a time period of 12-18 months. Other attorneys may tell you that they can get your case resolved more quickly than that, but it is not usually wise to rush to settlement. Settlements that are reached after an incomplete investigation and thorough preparation of the claim tend to be lower in amount. In addition, if you resolve your case too quickly, you may find later that you have additional injuries or damages you were not initially aware of—but settlement is final, and you cannot go back later and ask for more money. Therefore, it is important to be sure that you fully understand the extent of your damages before accepting an offer of settlement.
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You should plan on taking your medical malpractice case to trial. There are a variety of reasons for this, but the current trend in malpractice litigation is that doctors will defend their care, even if it is very poor care. It is actually very uncommon for cases to settle before being filed, contrary to what many potential plaintiffs believe. It almost never occurs that simply sending a letter will be enough to bring about a resolution of your case.
That said, settlements do occur frequently in this type of litigation, and plaintiffs have the best chance of obtaining fair value for their case when it is thoroughly and properly prepared for trial. When your case is handled by a reputable firm that is prepared for trial, settlements are more common, and usually, larger.
You are under no obligation to accept an offer of settlement, if you do not believe it is sufficient to compensate you for your injuries. Your attorneys will counsel you on the risks and benefits of accepting any offer of settlement, but the decision will ultimately be yours to make.
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Determining the potential value of your medical malpractice case is an important part of representing you. Value in this context is not a personal judgment of you, but rather, a judgment of what outcome is likely able to be obtained for you, based on a number of factors.
Each state has its own rules about how much money a plaintiff injured by medical malpractice can recover for their injuries. Some states do not place limits on damages, and others do. Some state with limits on damages limit only certain kinds of damages and not others. What this means is that the value of your claim in Texas might be vastly different from the value of the exact same claim in Minnesota or Maryland.
Here are some of the factors that impact the value of medical malpractice claims:
- Whether or not the plaintiff has permanent injuries that require ongoing care
- Whether or not the plaintiff has a normal life expectancy, or possibly, a shortened life expectancy because of their injuries
- Whether the plaintiff was negligent themselves, and caused or in any way contributed to their own injuries
- What the state laws are limiting the amounts of damages
- Whether the jurisdiction in which the case is filed is more conservative (less likely for a jury to give a big award) or more liberal (more likely to give a big jury award)
- What other cases with similar injuries have settled for in the recent past
- Whether the plaintiff has lost the ability to work at all, or to work in the same capacity as before the injury
- Whether there are dependents who can no longer be supported by the plaintiff because of their injuries
- Whether people need to be hired by the plaintiff to perform household duties or run a home business that the plaintiff can no longer perform
- How much the plaintiff has lost or spent out of pocket for medical care and household services as a result of their injuries
Pain and suffering damages are limited in many states. While many plaintiffs feel that these damages are the most important, it is frequently the case that this type of damages is not worth very much in practice because of damages caps that may have been imposed by the state.
In order to determine the value of your case, we will hire and consult with the right experts. Only after a thorough evaluation of your case can a realistic value be determined.
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Why we need experts in medical malpractice claims
When you are involved in a motor vehicle accident, and the person who hit you ran a red light, you won’t have to hire an expert to prove that other driver was negligent, because a jury of lay people will understand that—they know what the rules of the road are. But when we sue a professional, such as a physician, the issues are not so easily understood, and we must bring in experts to help the jury understand what occurred, and how the physician’s conduct caused an injury. In order to prove a medical negligence case, the plaintiff must demonstrate that the physician made a treatment decision that no reasonable physician would have made under the same or similar circumstances. That unreasonable action by the physician is called a breach of the standard of care. Plaintiff must also show how the standard of care violation caused their injury, and must show what their injury is worth, in dollars. Experts are needed for all of these elements.
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Liability—xpert(s) to Describe How the Doctor Breached the Standard of Care
As a rule, the person being sued can only be criticized by an expert in the same field of specialty with the same or similar credentials. If the defendant is a physician board certified in general surgery, then the expert retained to criticize his care must also be a board certified general surgeon. There are a few exceptions to this general rule, but only a few. If the person being sued is a nurse, then the plaintiff must retain a similarly qualified nurse to render opinions about the defendant’s error(s). It is not uncommon to have more than one defendant in a medical malpractice claim, and, when this happens, the plaintiff will need a standard of care expert qualified to comment on each one. This may require hiring multiple experts to discuss the standard of care applicable to each defendant and how that standard was breached (broken).
Causation—Expert(s) to Describe How the Mistake Caused the Injury
Additional experts will likely be required to discuss how the defendant’s actions caused the plaintiff’s injury. Consider the example of the defendant who is a family doctor who prescribed the wrong medication to a patient, and the patient had a bad reaction to the medication and suffered a stroke as a result. In that case, the plaintiff will need a family doctor with similar credentials as the defendant to explain why the prescription was wrong, and may also need to hire a neurologist to explain the stroke, and a pharmacologist to explain the mechanism underlying how the medication caused the stroke. The plaintiff may also need other specialists to explain various other aspects of the causal link between the doctor’s mistake and the injury that resulted. Sometimes the doctor testifying about the standard of care can also talk about causation, but this is not the ordinary scenario. Most of the time, plaintiff will need multiple experts to cover these various issues.
Damages—the Life Care Planner
One of the main goals of a medical negligence lawsuit is to obtain funds that can be used to provide future medical care the plaintiff needs as a result of their injury. Economic damages are the things that we can put a price on—medical needs, lost wages, lost ability to work. Plaintiffs with permanent injury requiring future care will usually need to hire an expert called a Life Care Planner. This expert will calculate the cost, in dollars, of providing all the care Plaintiff will need going forward (life care plan).
An economist is also hired to calculate the value of past and future medical bills and lost wages. The economist also takes the life care plan and calculates, accounting for inflation and interest earnings over time, its net present value. That is, how much we would money need to put into the bank today in order to pay, over the plaintiff’s lifetime, for all the care detailed in the life care plan. The Life Care Planner and Economist work together to create a picture of how much the Plaintiff’s claim is worth, in today’s dollars. However, it is important to note that neither of these experts adds any compensation for the plaintiff’s pain and suffering.
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If you have an injury that was caused by negligent medical care, a successful lawsuit about that injury will almost always give rise to what is called a “subrogation interest” or “subrogation lien.” If you have health insurance, either through a private company (i.e., Cigna, Blue Cross, etc.) or through federal programs (i.e., Medicare, Medicaid, or other state-funded plans), a subrogation lein is almost a certainty. Therefore, as a medical malpractice plaintiff, you need to understand what these interests are and how they can affect your claim.
Whatever health insurance coverage you have, there is a provision in your contract for insurance (or in the federal law) which basically says this: We the insurer are going to pay for the medical care you receive. But, if you find out that you needed medical care as a result of an injury caused by someone else’s negligence, and we paid for any of that care, we want to be paid back in the event you receive money from a lawsuit against the person who caused your injury. In other words, if you make a claim and get a settlement, you have to pay us back for any claims we paid on your behalf.
In private policies, this language can be found in a section of the policy usually titled “Third Party Liability.” For Medicare, Medicaid, and other federally funded or state-funded health programs, this requirement is actually found in the federal and state laws.
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YES! You absolutely have that obligation. Your insurance policy (or the applicable laws) specifically tells you that notifying the insurer in the event you are injured by another person’s negligence is YOUR RESPONSIBILITY.
If you fail to do so, you can be sued by the insurer, and your lawyers, as well as the defendants’ lawyers can even be sued for their part in failing to protect the rights of a subrogation lien holder. This means that the attorneys on both sides need to understand how subrogation works, and how to protect your interests to make sure that you cannot be sued later for failing to meet your obligations.
Different lawyers handle these issues in different ways. Sometimes your lawyer will hire another lawyer to handle these liens, and sometimes your lawyer can handle them without hiring another lawyer. You need to be sure you ask your lawyer what their practice is, and whether or not you will be charged additional fees or costs in conjunction with getting your liens resolved.
For whoever handles your liens, the process is essentially this:
- Health insurance providers are identified from information you provide, as well as from your medical records
- Every insurer who paid any claims or is listed anywhere in your files will be contacted and notified of pending litigation involving you, their insured.
- Each insurer is asked to provide a list of all paid claims from the time period surrounding your injuries. Periodically throughout the course of litigation, your insurers may be asked to provide updated listings of paid claims.
- When the case is nearing resolution, the amount of your liens is considered as part of the settlement, so that you can make a better decision about whether any potential settlement offer will be satisfactory to you/
- Your attorney will then review the itemized list of paid claims, and notify the insurer which claims were related to the injury that gave rise to your lawsuit, and which claims were unrelated.
- Based on that information, your lien amount (the amount you have to pay back to the insurer after your settlement) may be adjusted to subtract out the claims that were not caused by malpractice.
- Additional discounts may then be negotiated, such as to account for attorneys’ fees. In other words, your attorney should ask the lien holder to discount their lien amount based on the fact that you had to pay attorneys’ fees to get your settlement, and the insurer did not have to do anything at all—the money is just coming to them by virtue of the work your lawyers did, and which you paid for.
- Once a final lien amount is reached, reflecting all discounts and adjustments that can be obtained for you, it must be paid from your settlement proceeds BEFORE FUNDS ARE DISBURSED TO YOU. You may be able to receive some of your settlement money, but the lawyers will be required to hold back enough money to pay the liens, and will be required to keep that money in trust until the liens are resolved. Only then will they be able to refund/disburse back to you any amount not needed to pay liens because of discounts that may be negotiated for you.
Because you cannot get your settlement proceeds until your liens have been satisfied, it will become very important to you to know that your attorneys have a handle on what to do and how to get your liens resolved as soon as possible. Failure to handle liens in a timely way can result in a situation where your case has concluded, but your money is tied up and you cannot have it because liens are unresolved.
Be aware that Medicare and Medicaid sometimes take a very long time to provide a final settlement amount that they will accept, so it is extremely important to initiate the lien resolution process EARLY in the litigation. Notifying the insurers should be among the very first things your attorneys do after filing your lawsuit. Some states require that they receive notice of your claim within days of the filing of your claim—and if you fail to provide timely notice, you can be denied the benefit of any discounts. If you fail to provide any notice to them, you can also be sued. Experienced Medical Malpractice lawyers (or subrogation lawyers, if retained on your behalf) can usually negotiate some sort of discount for your liens. At Burg Simpson, we will have a plan in place for handling your liens, so that you will not have to worry about these issues.