Who Pays Litigation Costs for a Medical Malpractice Claim?
The issue of litigation costs is at the forefront of most personal injury lawsuits. The issue of litigation costs is particularly important in medical malpractice cases due to the very high expenses associated with these claims.
Client Ultimately Pays Costs
To get right to the point, litigation costs in medical malpractice claims are often advanced by the attorneys. However, it is solely up the attorney whether to advance costs or to have the client pay costs in advance or as they are incurred.
The client ultimately pays all costs associated with litigation out of any recovery, whether by settlement or by judgment. It is important for clients to understand this. The cost considerations may dictate settlement over trial. The same cost considerations are present on the defendant’s side as well.
Costs Loom Large in Medical Malpractice Cases
The consideration of costs is ever present on the attorney’s side. Consideration of costs will often dictate whether an attorney even takes the case. An attorney may determine that the costs are too great even where obvious medical malpractice has occurred.
This analysis requires a balancing of costs, damages, and risks associated with the medical malpractice claims.
Weighing Costs Against Damages
This comes as a surprise to many patients. There is what may fairly be described as an epidemic of medical negligence in the United States.
It is estimated that as many as 440,000 Americans die each year as a result of preventable medical error. As many as 80,000 die each year from diagnostic errors alone. It is safe to assume that the number of serious personal injuries resulting from these errors is exponentially higher than those involving wrongful death.
In short, there is no shortage of medical negligence. However, every case of medical negligence does not dictate a medical malpractice lawsuit. Due to the extraordinary levels of expense associated with these claims, many lawyers, including Collins & Collins, P.C. will not or cannot take on the risks without a significant level of injuries and damages.
Damages Associated with Medical Malpractice Claims
Damages are the injuries and losses associated with those injuries resulting from medical negligence. This would include physical injuries, permanent injuries, lost income, medical expense (past and future) and other losses and expenses associate with the injuries.
In New Mexico, like many states, there are caps on certain kinds of damages depending upon the nature of the medical provider. These caps issues merit their own discussion.
Costs Associated with Medical Malpractice Claims
There are many costs associated with these claims and some of them can be very high. The costs would include the typical costs associated with personal injury claims such as filing fees, costs associated with discovery, depositions, court reporters, videographers and so on.
In addition to these typical costs, there is another level of costs associated with medical malpractice claims. In New Mexico, medical malpractice claim will not get past summary judgment without an expert opinion. This means the case cannot move forward without an expert opinion. Some cases may require numerous experts depending upon the types of claims and the alleged medical negligence.
Many firms, including Collins & Collins, P.C. will get an expert review of the file before even taking the case. This alone can be quite expensive. However, this is simply a first step.
From there, these experts on both sides must be paid every step of the way. Because most medical experts in New Mexico medial malpractice cases are from out of state, this means paying them for travel time associated with coming to New Mexico for trial.
It does not stop there. In fact, the injured patient will have to pay the opposing expert in order to depose him or her. Again, these experts may be out of state requiring travel expenses on the part of the patient’s attorney.
Justice May Best Be Served by Other Means
The attorneys are acutely aware of the costs analysis. The client should be as well. After all, it does the client little good to win at trial and have the entire judgment eaten up by litigation costs.
It is natural for injured patients to feel betrayed by a negligent doctor and to want to see justice. However, in some cases where the damages are not there, there may be better routes to justice than a medical malpractice lawsuit.
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