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Why Excellent Nevada Trial Attorneys WILL NOT accept good Medical Malpractice Cases

November 5th, 2009 Leave a comment Go to comments
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In 2003, the Nevada Legislature created political campaign entitled, “Keep our doctors in Nevada.”  The argument was that due to medical malpractice insurance premium increases local doctors could no longer practice affordable medicine due to the escalating costs.   The Victim’s rights groups and Personal injury attorneys banned together to unsuccessfully fight this tort reform legislation.  In essence the laws were reformed to:

1.) Limit the amount of pain and suffering a victim could collect to $350,000; therefore a person who dies or is paralyzed gets only $350,000!

2.) Limit the attorney fees to discourage attorneys from taking good cases from 40-50% to 15% on amounts over $600,000.

3.) Reducing the time Victims have to sue from 2 years to 1 year; aka, the statute of limitations.

4.) Medical expenses and Wage losses (economic damages) are not part of the pain and suffering cap and are unlimited, but truly these costs are just reimbursement of costs and wages the client/victim would have made or need to make.

What these rules have done is effectively stopped good lawyers from taking good cases.  Unless a person understands why, they may disagree with this author.  We need to fight for just and fairer laws.  A laymen’s perspective may ask, “attorney fees seem like a lot for $15% over $600,000?”  Not true.  When personal injury lawyers decide whether they want to take a case they ask themselves:  Does the case have merit?  Is the case Just? Can we prove it?  Is the case worth it from a business standpoint? The official rule for attorney fees is: Forty percent of the first $50,000 awarded; 33 and one-third percent of the next $50,000; 25 percent of the next $500,000 awarded; and a cap of 15 percent for awards of $600,000 or more.

The first question is usually easy:  we simply ask another medical expert their opinion on the facts of the case and whether the doctor deviated from the standard of care.  Often, this is even easier if the facts indicate an obvious error. The next question is whether the case is Just?  This is simply a balancing test on whether the victim was so injured as to justify the need of litigation over the need to sue a caregiver.  Some cases are so minor that they don’t warrant a lawsuit.  The third question is a matter of proof.  Cancer victims often cry fowl that the doctor misdiagnosed the disease leading to a death.  These can be tough to prove:  would you have survived if they had diagnosed properly? –Tough question that borders on speculation, which is a fundamental basis, the law does not allow.  Can you prove that the doctor accidentally cut your bowels during the stomach operation leading to your infection, or was that an appendicitis issue?

THE BUSINESS DECISION:  RISK VS. REWARD

Also, a legal practitioner will always ask, “Does this case make economic sense?”  Most people don’t understand the personal injury lawyers take the case and front all the expenses necessary to perform a jury trial.  This is very, very expensive.  Each doctor that testifies, as an expert must be paid.  The victim usually can’t afford this, so the attorney’s front these costs.  Why would an attorney represent a victim that has suffered immensely, but the case is too expensive and the risk of losing is great.  They won’t.  Remember that law firms are businesses that employ many persons.  A firm can’t take too many losses or they wont operate; hence the art of case selection.  These laws create public policy; in essence, reducing the number of attorneys taking cases, which in turn, means they only take the most horrific, easy to prove, profitable cases.  The rest of the maimed public is stuck.

THE ULTIMATE RECOVERY

I don’t think anyone besides doctors will argue that $350,000 cap is fair.  There are just too many horrific injuries that justify more compensation.  This is just an idiotic law.  Forget attorneys, forget doctors, this is about injured victims—people who have been harmed and in essence are tortured for life.

THE TIME FRAME:  1 YEAR

This is also a horrible law.  One year is not enough time to realize you are injured due to malpractice, you must interview possible attorneys, collect all the necessary medical records which are normally stored in other states, hire an expert (which will also be located out of state), and finally, allow for a party to grieve.   If you lose a loved one, litigation and suing is not on the forefront of someone’s mind.  One year is simply too soon to be the cut-off.

THE OTHER TIME FRAME:  NOT MORE THAN THREE YEARS

If you have a sponge left in your abdomen after surgery, but it is not recognized for five years, you can’t sue!  Is that fair? No.  Enough said.

Our law firm handles mal-practice cases because we believe the system needs experience attorneys to protect the public from harmful doctors and to encourage proper medical treatment.  No one is above the law.  Contact  Benson and Bingham if you have been injured through no fault of your own.

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