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Last night, Austin's Fox 7 news ran a story that detailed allegations of medical malpractice involving the care received by a patient in an Austin-area nursing home. The story said that after the patient's death, state investigators came in and found that the nursing home violated several state regulations and that those violations contributed to the death. At the end of the story, the family stated that they were investigating their legal options. Unfortunately, this story is a prime example of the tragedy of tort reform. There are two types of damages that may be recovered in a wrongful death suit. Economic damages are those hard expenses that can be calculated, including lost wages, cost of medical care, and amounts for out-of-pocket expenses. The other category, non-economic damages, includes elements such as pain and mental anguish and impairment. The family's story is typical of most death cases involving the elderly or children since there are minimal economic damages, if any. The elderly and the children do not have jobs and thus no claim for lost wages, and in most death cases, the patient quickly dies and there are no significant medical expenses. That means that the family in the story is likely limited to recovery of their non-economic damages. But with the tort reform of the last few legislative sessions, non-economic damages in most medical malpractice cases are limited by a damage cap of $250,000.00. That cap is going to make it difficult for the family to find a competent attorney to represent them in any lawsuit. While $250,000.00 may sound like a lot, that limit makes it almost economically impossible to pursue the claim. Most attorneys handle medical malpractice claims on a 40% contingency fee (the attorney receives 40% of any recovery). If the recovery is capped at $250,000.00, then the fee is capped at $100,000.00. Unfortunately, the cost of litigation, including very expensive expert witness fees, can approach or exceed $100,000.00. Attorneys usually pay for these costs and hope to get reimbursed by the client when they prevail. That means the attorney is risking $100,000.00 of his own money for out of pocket expenses to pursue the claim on the hope of earning a fee of $100,000.00. Very few competent attorneys will agree to such an agreement. And the cases also do not make much economic sense to the victims' families. With a $250,000.00 recovery, attorneys' fees of $100,000.00 and expenses of $100,000.00, the families are left with $50,000.00 to be shared amongst the beneficiaries. Certainly not a huge windfall to compensate victims for the loss of a loved one. And that's one of the fallacies of the tort reform cap on damages. The damage cap hurts those, like the family in the story, who have valid claims, but doesn't do anything about frivolous lawsuits. We hope the family in the story can find a reputable attorney to represent them in what sounds like very offensive conduct, but we're afraid that they'll be like so many victims in the last few years and not be able to find reputable counsel to represent them in their claims.
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