Life care plans & future medical care in brain & birth injury & catastrophic medical malpractice casesContrary to popular belief, Texas law doesn't cap a jury's award of future medical care
When I meet with patients and families impacted by medical negligence, they’re often worried about how they’re going to make ends meet, pay medical bills, and get on with their lives.
Considering that medical errors are the third leading cause of death in the United States each year, this is a big problem. Medical malpractice can leave people facing paralysis, brain injuries, or some other serious injuries that may prevent them from ever working again.
Not everything is capped by Texas law
It’s interesting how often potential clients bring up Texas damages caps in our first meetings with them. Some lawyers do the same thing when they call me for advice on how to evaluate a potential medical malpractice case.
Many people are under the misimpression that all medical malpractice cases are completely capped at a certain monetary level. That’s simply not the case. Broadly speaking, there are two categories of damages, or money, that a successful plaintiff can collect in a Texas medical malpractice case.
The first, non-economic damages, is capped. I would like to describe this category as the type of very real injuries that are hard to put a dollar sign next to. This includes harm and losses like mental anguish, pain and suffering, disfigurement, and physical impairment.
A jury’s monetary award for non-economic damages is capped at a total of $250,000 for all physician or individual healthcare providers, like nurse practitioners, certified registered nurse anesthetists, and physician’s assistants. If hospital care is involved, there is a separate cap of $250,000 per hospital, up to a maximum of $500,000.
So, if the plaintiff sues five doctors for medical negligence, the maximum recoverable for non-economic damages is $250,000. If you add in a hospital defendant to the same case, an additional $250,000 is available. If you add five other hospitals to the case as defendants, nothing more is available.
The second, economic damages, is not capped. These are types of harm and loss that are normally easy to put a dollar sign next to. Think of things like lost wages, loss of earning capacity, past medical care, and future medical care. If there is evidence to support total economic damages of $10 million in a medical malpractice case, the jury can award it and no cap applies.
A lot of Texas attorneys won’t even consider representing a client in a medical negligence case because they aren’t familiar with this complex area of the law. One of the major considerations in preparing a medical malpractice lawsuit for trial is putting together evidence of the damages caused by the negligence of the hospital or doctor. This is why it’s so important for seriously-injured patients to hire an experienced Texas medical malpractice attorney from the get-go.
The wrongful death cap
Bear in mind that there's a separate inflation-adjusted cap that applies to all wrongful death damages. It's currently around $2 million.
Proving future medical care: Life care plans
An experienced medical malpractice lawyer will start working on assembling the evidence needed to prove future medical care at the beginning of the case. In serious, catastrophic injury, brain injury, and birth injury cases, this may involve a life care plan.
A life care plan is a document put together by healthcare provider that describes the likely care that a person will need over the rest of his or her life because of the medical error or negligence at issue in the lawsuit.
Who prepares a life care plan? Life care plans are typically prepared by a specially-trained nurse or physician. Generally, I prefer to have a physician prepare life care plans. In particular, I believe that physical medicine and rehabilitation physicians make a great choice for life care planners because it’s a part of their regular medical practice to manage the rehabilitation care for people who experience serious injuries.
Texas law requires a medical doctor to testify that the future medical care and healthcare described in the life care plan is reasonable and likely necessary. While I have found some nurses that do an excellent job in preparing a life care plan, there’s still the requirement of having a physician validate it. This presents a risk at deposition or trial, where defense attorneys well try to drive a wedge between the physician expert and the life care plan. When the doctor prepares a life care plan, this isn’t an issue.
What’s involved in a life care plan? A life care plan is a big project that should be started months before it is due. An experienced medical malpractice attorney would never want to rush the process, out of concern that it may affect the reliability of the work product.
Here are the things that I typically want to make available to the life care planner to review:
· All medical records related to the negligence.
· All medical records related to the patient’s treatment after the negligence.
· The lawsuit petition.
· Any reports from the plaintiff’s other expert witnesses.
· Any interrogatory answers from defendants.
· The deposition transcripts of the plaintiffs.
· The deposition transcripts of the defendants and any other treating healthcare providers.
· Any paperwork related to short-term or long-term disability benefits, or Social Security Disability benefits.
In addition to those documents, I have life care planners that I hire examine the patient. This normally involves setting up an appointment for the patient with the life care planner’s office.
Many of our clients say that, at first, it seemed like a normal doctor’s appointment, but then they’re surprised that it’s not rushed. By the time of the appointment, the doctor has already reviewed the patient’s medical records and other documents. The doctor usually starts by having a discussion about the patient’s current condition and care needs, and then moves on to doing a physical evaluation and assessment.
In cases where a life care plan is warranted, there is really no substitute for having the life care planner perform his or her own examination of the patient. Having presented many life care planners for deposition, I know the defense lawyers will thoroughly cross-examine them to discredit their opinions. One of the common focuses of cross-examination is to see if there is any way to confuse the doctor about some minute detail in the large pile of records that were reviewed. When the life care planner can rely on his or her own thorough examination of the patient, though, this defense technique is unpersuasive.
We are here to help
If you or a loved one has been seriously injured because of poor medical or hospital care, then the experienced medical malpractice attorneys at Painter Law Firm, in Houston, Texas, are here to help. Click here to send us a confidential email via our “Contact Us” form or call us at 281-580-8800.
All consultations are free, and, because we only represent clients on a contingency fee, you will owe us nothing unless we win your case. We handle cases in the Houston area and all over Texas. We are currently working on medical malpractice lawsuits in Houston, The Woodlands, Sugar Land, Conroe, Dallas, Austin, San Antonio, Corpus Christi, Bryan/College Station, and Waco.
Robert Painter is a medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits against hospitals, physicians, surgeons, anesthesiologists, and other healthcare providers. A member of the board of directors of the Houston Bar Association, he was honored, in 2018, by H Texas as one of Houston’s top lawyers. Also, in 2018, the Better Business Bureau recognized Painter Law Firm PLLC with its Award of Distinction.
Robert Painter is an award-winning medical malpractice attorney at Painter Law Firm PLLC, in Houston, Texas. He is a former hospital administrator who represents patients and family members in medical negligence and wrongful death lawsuits all over Texas. Contact him by calling 281-580-8800 or emailing him right now.
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