The law only allows victims of personal injuries, including medical malpractice victims, to recover compensatory damages, or damages designed to compensate a victim for their losses. This includes general damages like pain and suffering and mental anguish and special damages like medical expenses and lost wages.
This does not allow victims to recover punitive damages, or damages designed to punish persons for their wrongful conduct in an attempt to deter that conduct in the future. Thus, the runaway verdicts seen in other jurisdictions rarely if ever occur here. Moreover, in medical malpractice cases, there is a cap on damages of $500,000 plus medical expenses.
Under law, a victim of medical malpractice has the burden of proof in the case to demonstrate by a preponderance of the evidence that the defendant health care provider was negligent or "breached the standard of care." The law requires that in order to meet this burden of proof, a patient must prove their case with expert medical testimony by a physician who generally practices in the same specialty as the defendant doctor.
Hiring expert medical witnesses is a very expensive undertaking. Depending upon the type of case, medical experts can cost between $30,000 and $70,000 per case that goes to trial.
In order to justify spending this amount of money, a patient must have damages that make it economically feasible to proceed. There has to be enough provable damages to ensure that the patient will obtain a substantial recovery after paying the attorney's fee and expert fees.
Since most experienced medical malpractice attorneys rely upon their reputation to get cases, they will not jeopardize their business by taking a case where the attorney and expert are the only individuals who get paid.
In order to make a medical malpractice case worthwhile to pursue, the case should have approximately $125,000 to $150,000 in provable damages. Since only allows the recovery of compensatory damages, a patient must have a serious and permanent injury to justify proceeding with a medical malpractice case.
A clear cut case where a foreign object is left in someone overnight without causing them any complications would not be worth pursuing if medical experts had to be retained. Therefore, unless the medical malpractice caused substantial damages, these cases are not worth pursuing.
Moreover, since physicians who pay any money in settlement get reported to a national data bank, which report follows them for the rest of their career, doctors do not settle these cases very often. Thus, the hope of a quick settlement can never be a motivating factor in a medical malpractice case in.
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