Texas is a state now known for tort reform. As part of this tort reform, several limits have been placed on the damages those injured by medical malpractice can receive. Most notably, with a law that took effect in 2003, damages for pain and suffering are now limited to $250,000 in most malpractice cases.
Impact of the damage cap
What has this damage cap resulted in? According to the Insurance Journal, since 2003, physicians' malpractice premiums have decreased by almost 50 percent. Texas has also seen a sizable increase in the number of physicians seeking licensure in the state.
While things may have improved for doctors, it is important to remember the malpractice victims. Most ordinary Americans cannot afford to pay an attorney out-of-pocket. Instead, attorneys take cases on contingency, and receive a percentage of the damages recovered. Often this means no matter how valid the case, unless the victim can find an attorney who thinks it will be profitable, the case will never be heard.
When the damage cap went into effect, the risk-benefit analysis for Texas attorneys changed. Medical malpractice suits can be costly to pursue with the need for extensive research and experts. Attorneys are less willing to risk paying the upfront costs for smaller potential payouts, which sometimes may not even recoup their expenses. In the end, this means fewer medical malpractice cases go to trial.
Importantly, certain types of victims are also less likely to be heard. These are children, the elderly and non-wage earning spouses. Why? Economic damages like wages are outside of the cap, but those individuals that earn little or no wages do not have the ability to recoup additional losses in this fashion. These are the "hidden victims of tort reform" discussed in a recent study by the American Bar Foundation.
There are still options
Although tort reform has made things more challenging for many victims, there can still be a path to financial recovery in many cases. It is important to meet with an attorney who can evaluate your case and discuss the options available for your situation. At the Law Offices of Brian H. Fant we offer a complimentary initial consultation where we can discuss your rights and recommend the best approach going forward.