The public perception that medical malpractice cases regularly result in large awards of money is an unrealistic one. Even if a plaintiff prevails at trial, there is no guarantee that any money will be forthcoming. A study from the Department of Justice, based on data from 43,000 cases, reveals that for seven states between 2000 and 2004 (Florida, Illinois, Maine, Massachusetts, Missouri, Nevada, and Texas), most medical malpractice cases that were decided for the plaintiff ended with no money going to the plaintiff.
For cases in which a plaintiff prevails and is awarded compensation, many states are now capping recovery at a maximum of $250,000. The amount an attorney can recover from that statutory maximum is now also restricted. In Florida, attorneys’ fees in such medical malpractice cases, unless agreed to otherwise, are limited to 30% of the first $250,000 (exclusive of reasonable and customary costs), and 10% of all damages in excess of $250,000 (exclusive of reasonable and customary costs). If an attorney seeks more than the statutory limit for fees, the attorney is regulated by the Rules Regulating the Florida Bar. The rules limit attorneys’ fees to 33 1/3% to 40% for any recovery up to $1 million; 30% for any recovery between $1 million and 2 million; or 20% of any portion of the recovery exceeding $2 million.
Average costs of preparing for a medical malpractice case can now average $50,000 to well over $100,000 and require years to prevail at trial. Plaintiffs are often left permanently disabled as a result of the incompetence or negligence of doctors and/or hospitals, and deserve to be adequately compensated for their suffering. By capping recovery in medical malpractice cases, states are not only affecting the compensation that plaintiffs receive, but also the opportunity for plaintiffs to get their day in court. Because preparation costs for medical malpractice cases are getting so high, bringing a case to trial presents a serious financial risk, as attorneys might not be able to recover their costs even with a monetary judgment. Statutory caps on medical malpractice verdicts for pain and suffering hurt those most deserving – mothers, children, and the elderly. Big wigs still get 100% compensation for the loss of earnings, so the corporate executive hurt by malpractice will still be compensated for all his lost earnings but the child and the mother won’t. Are children less worthy?