By the time many medical malpractice clients speak to me, they’ve had
4-5 other attorneys turn down their case. Why? Well, changes in the law were enacted to make these types of cases difficult and expensive. They are a lot of work. So many good attorneys just stopped taking them to focus on easier, higher paying work. In other words, the other attorneys didn’t listen to the case facts and decided it wasn’t a good case. Instead, they just answered the call and made a business decision that “sorry, we don’t do medical malpractice.” I refer to the changes in the law as the “terrible four.” Here they are so you understand why these cases are more difficult:
1. Supporting Physician Affidavit Requirement. In order to even file a medical malpractice case, you must have an affidavit from a similar physician to the one you are suing who signs an affidavit attesting to the medical malpractice. No other type of personal injury case requires this. If you get hit in an auto accident, you don’t need an accident reconstructionist expert affidavit. Even suing other professionals does not require this. You can sue an attorney, an accountant or a real estate broker without any supporting affidavit. This requirement deters claims in many ways. If you can’t get medical records in time, you can’t sue. If medical records are false or incorrect, you can’t get the discovery you need to contradict them. Lastly, it means you’ll have to pay an expert physician often $10,000 or more before you can even file your case.
2. A Cap on Non-Economic Damages. Non-economic damages are amounts awarded for pain and suffering, disfigurement and other non-tangible loss. In Nevada, these damages are capped at $350,000. Doctor messes up your spinal surgery and renders you a quadriplegic (unable to move your arms or legs)? Congratulations, here is your $350,000. We don’t think most people would take $350,000 in exchange for not being able to move their arms and legs, but this is the law.
3. Abrogation of the Collateral Source Rule. The collateral source rule states that if you are compensated for your injury by a collateral source, it cannot be mentioned or introduced into evidence. Most commonly, this means that the fact that you have health insurance, or Medicare or Aflac is excluded at trial. But not so if you sue a physician. If you sue a physician, the doctor can argue that your medical expenses were paid by collateral sources at a discount. In other words, your responsible behavior of paying for health insurance actually hurts your case. You are helping the doctor who injured you if you have your health insurance pay for your bills.
4. Limits on what you can pay your attorney. One of the most sinister laws passed, which we believe to be unconstitutional, was a limit on what an attorney can charge to handle a medical malpractice case. Attorneys typically charged between 40%-50% depending on whether the case had to be tried. Attorneys take a lot of financial risk and invest vast amounts of time and resources into these cases, so fees were high. Doctors and their insurance companies wanted to deter good attorneys from taking medical malpractice cases, so they passed a law limiting fees for those attorneys who represent the innocent victims of medical malpractice. Of course, they did not limit the fees that a defense attorney representing a doctor could be paid (which would similarly control insurance costs), only those representing innocent victims who had no lobbying group. Many fine attorneys just started hanging up the phone on medical malpractice victims when this happened.
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