Common Medical Malpractice Questions | Hampton & King
It is unusual for our new clients to know exactly went wrong. Often they say that they just want answers. They need someone to investigate what happened and tell them why they, or their loved one, was so seriously injured during a routine procedure. At Hampton & King, we spend a lot of our time providing those answers. Sometimes complications occur during the best of care. But sometimes—too often—medical mistakes are made with tragic consequences. Our lawyers can explain the process of pursuing a medical malpractice lawsuit, the probability of success and the likely range of recoverable compensation.
You have “a case” if the defendant was negligent, which means that he violated the standard of care and failed to do what a reasonably prudent doctor in the same or similar circumstances would have done and if that negligence was a substantial factor in causing foreseeable harm.However, it is one thing to have “a case” and it is another to have a case that can be brought successfully. The answer to that question is influenced by a multitude of factors including the economic and non-economic damages, insurance coverage, and the impact of a complicated matrix of statutes and case law that govern Texas medical malpractice cases. Our lawyers can evaluate those issues and tell you whether you have a viable case.
The elements of recoverable damage in a medical malpractice case are past and future physical pain and mental anguish, disfigurement and physical impairment; paid or incurred medical expenses and the cost of future medical care; lost income and the value of lost or reduced future earning capacity.In wrongful death cases, the recoverable damages include the surviving family members’ emotional harm, any physical pain the decedent experienced; any paid or incurred medical expenses, and the survivors’ loss of financial support.
The main impact of tort reform is a cap on damages. Non-economic damages, which include pain, disfigurement, physical impairment and mental anguish, are capped. $250,000 is the most that doctors—regardless of the number—can be required to pay. A hospital can be required to pay another $250,000 and if two hospitals somehow are negligent, each can be required to pay $250,000. These caps do not apply to economic damages such as medical bills, future medical charges and lost income. Damages in wrongful death cases are also capped. In addition to the $250,000 non-economic damage caps, the total award is limited to a sum that increases annually by a cost of living factor. It is currently about $2.5 Million, not including medical expenses, which are not capped.
Hampton & King works on a contingency fee basis which means that we invest our money in your case. If, after a careful evaluation, we conclude that you have a case that we can probably handle successfully, we pay all of the costs. Medical malpractice cases are expensive. It can easily cost $100,000 or more to bring a routine case to conclusion. If we are not successful, for whatever reason, you owed us nothing. If we win your case, or obtain a settlement for you, our fee will be a percentage of the total recovery.
You should assume that you have two years from the date of the negligent act to bring a lawsuit. However, you should not wait that long because it takes a significant amount of time to gather the records, films, and evaluate a case. If you want an experienced medical malpractice law firm to investigate your case, contact them as soon as possible.
The first step in investigating a medical negligence case is obtaining all of the relevant medical records and imaging studies. This process can take weeks—sometimes months.When we obtain the records, our lawyers, in-house physician and other medical consultants evaluate them carefully to identify the potential standard of care violations and other medical issues. At that point, we usually can make a decision about whether can handle the case.
Texas law requires the plaintiff (patient) to present expert witnesses to address standard of care and causation. At Hampton & King, our goal is to find the most qualified medical experts and we search the literature to find physicians who have written about the pertinent issues. Many of these experts come from leading academic institutions. Texas law also requires that the patient produce an expert report with 120 days after the defendant has answered the lawsuit. No meaningful discovery can take place until a report is filed so our practice is to file it as soon as possible, often with the suit papers. Defense counsel routinely objects to these reports because there are, at present, no adverse consequences for making frivolous objections or for appealing adverse rulings. There are more than 1000 reported appellate cases construing the requirements of expert reports and, predictably, there are a lot of conflicting opinions. It often takes months to resolve disputes about the adequacy of expert reports.
Texas law requires that a patient give written notice 60 days prior to filing suit. Texas courts and the Legislature make believe that this notice period is for pre-suit negotiation and resolution of cases but that rarely happens. Normally, the patient must file suit.
The Legislature has prohibited patients from suing for a specific dollar amount so the suit papers will as for “an amount within the jurisdictional limits of this court.”
After suit is filed, the parties will exchange written questions (interrogatories) and requests for documents. Many of these will deal with our contentions, witnesses and evidence and we will answer those for you. However, several will request background information that you will need to supply. After this “written discovery” is completed, depositions will be taken. It is customary for the plaintiffs’ deposition to be taken first. You would need to meet with us to prepare for your deposition and the deposition itself will occupy most of a day. Then we will take the defendants’ depositions, as well as any fact witnesses. After depositions are completed, most courts order mediation. This is a moderated settlement conference before a neutral mediator. Usually, this process will occupy another full day. Mediation is very successful in resolving cases but if the mediation is not successful, the case will go to trial and, of course, you will need to attend.
If your insurance company, Medicare or Medicaid paid medical bills required by the medical malpractice, they will have a right to be reimbursed from your recovery. Typically, we will be able to negotiate a reduction of their interest.