Costs in Medical Malpractice Cases

Litigating a medical malpractice claim can be costly. If you are a prospective plaintiff considering filing suit, rest assured that the majority of these costs will not fall on your shoulders. This article shall parse out the discrete costs of medical malpractice cases so you may have a sense of what to expect, at every step of the way.

Reviewing the Merits of a Potential Medical Malpractice Claim

Prior to initiating any claim, you must consult with an attorney to review the merits of your claim. Ideally, you should secure your legal representative before a claim is ever filed - in fact, filing the claim is the first point at which you pass the baton off to your lawyer and leave the case up to their skill and expertise. You will still be needed for information, advisement, and consultation, but the majority of legal maneuvering and coordination with the court will be handled by your representative. Note that the costs discussed below are not yours to pay (unless otherwise specified in an agreement with your lawyer.) A law firm operating on contingency fees will normally cover them. The law firm you hire may use a different fee structure, but they are expected to be entirely transparent about the nature of their fees/coverage of legal expenses prior to settlement or damage award.

Before a claim can be filed, the attorney must perform an investigation into the claim to determine if it has any legal merit. The attorney may only tentatively accept your case, pending the conclusion of the investigation. However grave an injury may be, the attorney must be positive it will hold up in court before taking it on. There are certain costs associated with this investigation, and the attorney will obviously cover them because they undertake of their own will, even if they decide not to take on the case. The cost will vary depending on the complexity of the case and field of medicine in which it falls. They will need to acquire the patient's medical records, which is actually a nuanced effort because they need to obtain a variety of medical documents - an inexperienced lawyer may not request certain, critically useful documents.

The lawyer will be charged by the hospital in order to obtain the Physician's Office Chart, which contains a record of events during each patient visit; the hospital chart, which can be quite voluminous, containing operative reports, nurses' notes, physician's orders, and discharge summary; X-ray records, if any, which are not maintained in the hospital's medical records department, but are housed in an x-ray file room so it must be separately requested. There are fees generally associated with each request for medical information, to compensate the hospital for the producing, copying and sending the documents. Although it is quite common for lawyers to conduct some kind of cursory, amateur research into the claim (some lawyers even keep small in-office medical ‘libraries), they will almost uniformly seek out the opinion of an expert in the field.

Expert fees are one of the principal, unwavering costs of medical malpractice litigation. For a simple case review (excluding potential future costs for deposition or in court testimony), on average medical experts charge $443/hr. [1] Because they may be used later on and charge substantial fees, the attorney will weight many features of a would-be expert witness. They will examine their qualifications, the degree of thoroughness, regular accessibility (can they fit the case in with their hospital schedule, do they reply in a timely manner etc), ability to apply medical knowledge to a legal setting and their overall demeanor.

Again, these expenses will be funded by the attorney, not you the claimant. Contingency fee arrangements allow lawsuit accessibility to even those who cannot afford it - they will not be charged a fee if they do not win the case, in which case the fee comes out of the damage award. The only expenses directly imposed on the plaintiff will be those not directly associated with interworking of the case, such as travel expenses if any.

After the investigation is completed, the attorney will weigh the merits and weaknesses of the case and come to a decision. If they decide to represent you, you will work out a fee agreement. As mentioned, a contingency fee structure is most common in personal injury/medical malpractice cases. It is not found in many other legal practice areas; for the majority of lawyers, hourly or flat fees are the norm. In some medical malpractice cases, there might be a hybrid contingency fee agreement, which borrows from elements of the hourly fee structure and imports into the contingent fee.

Expenses Related to Filing a Medical Malpractice Claim

This helps reduce the risk the attorney incurs when they take on a contingent fee case. Because they fund the lawsuit, if the case is lost and there is no recovery rewarded, they have lost all the money they funneled into the suit. By charging a reduced hourly fee to the plaintiff, in addition to the contingency fee to create a hybrid contingent fee agreement, they reduce their risk by a measure, which may make a risky malpractice case more appealing to some attorneys and therefore has some benefit. If you and your attorney reach a satisfactory fee agreement, they will file your claim in court, commencing litigation. If you choose to move forward with your medical malpractice claim, the expense rundown may go something like this.

  • Filing Fees: This is the fee the court charges when a medical malpractice claim is filed. In many states, the court requires that you include an affidavit or merit when you file your claim. The affidavit certifies that your claim has been reviewed by an expert in a relevant field who is affirming the merit of your case. This requirement helps weed out lofty or frivolous claims, even though the attorney is a de facto screening agent of malpractice claims. The claim will be filed by your attorney and the associated fee usually falls between $100 and $500. [2]
  • Traveling Expenses: This is not always readily considered when factoring the various costs of civil lawsuits, however, it is worth noting. The best lawyer to undertake your case may not always be in your immediate area. Although far from certain, you may need to travel for consultations with your attorney or medical examinations for purposes of the case. Unlike the gamut of other costs, these will generally fall on the plaintiff.
  • Document Expenses: This is hardly a gross expense within lawsuits, but bears mention. Hospitals charge a fee to produce voluminous medical charts and documents. Documents like transcripts, statements, and contentions of events will likely need to be photocopied and shipped to the opposing parties. These critical documents may be shipped back and forth and will probably require first class postage.

Discovery Expenses

The ‘discovery' phase begins after the plaintiff's claim and the defendant's answer have been filed. This phase allows both parties to obtain relevant information about the case, but like every other phase of the case - there are associated costs. Discovery takes place in the following forms (not all of which have an associated cost.)

  • Interrogatories are a set of written questions by one party served on the other.
  • Requests for disclosure are requests for information pertaining to the suit, such as intended witnesses, experts, and damages, for example.
  • Requests for production are requests for written documents.
  • Requests for admissions ask the other party to admit or deny a fact or contention held by the other party.
  • Expert reports are a formal documentation of the expert's opinion.
  • Depositions - Paid court reporters are present at depositions to record all statements. A deposition is a question and answer session where parties to the lawsuit provide sworn testimony, followed by the experts' testimony. The court reporters are paid a mean hourly wage of $24, according to the Bureau of Labor Statistics. [3]

Expert Witness Fees

This is an absolutely indispensable cost in any malpractice case. No court will seriously review a claim until the claimant has obtained a supportive expert opinion. Expert witnesses are aware of the value of their services, and credible experts do not come cheap. On average, an expert witness will charge $582/hour for deposition testimony and $622/hr for courtroom testimony. [1] There could be an enormous deviation from these average figures, depending on the medical field. An expert may be forced to take time away from work in order to provide testimony and will charge accordingly. In some case, more than one expert witnesses may be recruited by the attorney in order to bolster the credibility of one expert's claims. Doing so could be considered a financial risk to the attorney, who then pays double (or more) for expert witness expenses, and could still lose the case, seeing zero return on investment.

Arbitration Fees

There is always a strong possibility that a case will be settled without ever advancing to trial. This is done by arbitration, which does by many names: ADR (alternative dispute resolution), mediation, settling etc. While some states have no arbitration requirements on the books at all, some legally mandate it a precursory step to litigation. It is rare that cases advance without having attempted some level of arbitration. There is a filing fee which normally begins at $50 for claims involving less than $1000; it rises from there. A filing fee may sit at $200 or reach several thousand. [4]

Arbitration eliminates the expenses of court reporters because they are informal and nothing is recorded. If a settlement is achieved, every expense of a would-be trial is eliminated. The costs of arbitration are usually split between plaintiff and defendant, or rather their attorneys. Arbitration panels are usually composed of at least one lawyer, one medical professional, and one layman, who will likewise be compensated for their time. If the arbitration is state-mandated, their compensation may be funded by the state.

The average cost of defending against a medical malpractice claim is, on average, $22,959, not including the average indemnity payment (court-awarded damages). With the inclusion of a possible indemnity payment, this figure increases by approximately $41,687, according to data published in 2012 and collected from over 26,000 malpractice claims between the years 1995 and 2005. Undertaking a medical malpractice lawsuit is no small task. The high financial stakes for all involved mean they require the serious consideration from all parties involved. [5]

Footnotes

[1] "Expert Witness Fee Calculator." The Expert Institute. The Expert Institute, n.d. Web. 24 May 2017.

[2] Suszek, Andrew. "Cost To Bring a Medical Malpractice Claim?" Nolo, n.d. Web. 24 May 2017.

[3] Bureau of Labor Statistics, U.S. Department of Labor, Occupational Outlook Handbook, 2016-17 Edition, Court Reporters. Web. 24 May 2017.

[4] "Summary of Arbitration Fees." FINRA.org. Financial Industry Regulatory Authority, n.d. Web. 24 May 2017.

[5] Seabury, Seth, Ph.D, Amitabh Chandra, Ph. D, Darius Lakdawalla, Ph.D, and Anupam B. Jena, Ph.D. "Defense Costs of Medical Malpractice Claims." New England Journal of Medicine 366.14 (2012): 1354-356. Web.

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