Our attorney now wants to include all in one. Texas threshold is 250,000. Three siblings wanted separate cases for pain and suffering(like we were told at first). We lost our mother last march 18. We don't feel like he is being honest with us and that it seems he wants to settle this case at our mediation/settlement hearings coming up May 6. His take is over 40% and even if we get a full settlement w/o going to trial this doesn't seem right to us after a 3 way split would be little comfort after what mom went through. Little justice to say the least. We haven't discussed this with him yet but are seeking advice. I know we can refuse a settlement and go to trial at our risk but want separate pain and suffering cases brought about for each of us. Thank You, 3 poor and sad children
Texas doesn't allow three separate pain and suffering lawsuits for the wrongful death of another. All wrongful death claimants are represented in one lawsuit. If separate lawsuits are filed they will be consolidated into one lawsuit - involuntarily if necessary. Filing separately will only cause a needless increase in expenses, confusion, and erode your lawyer's credibility. The $250k damages cap is a collective cap that applies to all claimants together - whether there is one suit or many. You don't give details of your claim, but there is an additional $250k cap if there is a direct claim against a hospital. In the rare instance that there is a second hospital then there is a possibility of a third $250k cap. But, this part is a very technical discussion that depends on a lot of things. You might discuss that part with your attorney to see if these additional caps are even possible. Many times they are not even a possibility. The $250k cap is in addition to any provable economic damages such as lost wages and medical bills. However, medical bills are subject to being paid back to the insurance company so that part may end up being meaningless to you.
In a medical malpractice case in Texas, 40% attorneys fees is standard in addition to being reimbursed the expenses. The fact that little money might be left over for each of you is not his fault. His hands were tied by the Texas legislature in 2003 when the damages caps went into effect. I suggest you write to the Texas legislators from your mother's last address and explain how unjust the law is now. You can find them at this web address: http://www.fyi.legis.state.tx.us/Home.aspx
Good luck to you and your family.
This response does not create an attorney-client relationship and is provided after receipt of very limited information. For this reason it is not a substitute for a formal consultation with an attorney in your jurisdiction who has been retained and has been provided all of the relevant information. The author of the related question is strongly encouraged to obtain such a formal consultation prior to making any final decision about how or if to proceed with a legal matter. As there are time deadlines that apply to all legal actions, the question's author is encouraged to seek such consultation as soon as practicable.
Wow. 40% is astronomical...almost highway robbery. For example, my firm only deducts a small 29% fee. You can renegotiate the fee agreement, and you can refuse to sign the release until this is done, preventing the lawyer from getting paid, or switch lawyers to another lawyer in your state. Good luck.
First, this matter needs to be discussed with your Texas attorney. Calmly and without drama.
Second, your attorney is right. You are not really understanding how this process works and that lack of knowledge (stemming from not talking to your attorney enough) is eroding your trust in your lawyer. You do not "separate"-out certain claims. In Texas, it ALL goes into a single lawsuit filing. Multiple causes of action go into the pleading (survival claims, wrongful death claims, etc.). Second, the $250K figure is not a "threshold." It is the cap on non-economic damages. Your attorney is likely telling you that $250K is the real-world cap on the case no matter how successfully the case is presented. This is often the case when economic damages are limited, depending on case facts.
I understand you are in Virginia and Texas is a world away. But you need to (1) talk to your lawyer and re-gain the trust you need; and (2) understand that pursuing a Texas medical negligence case is like trying to pursue a similar claim in communist China...it's almost impossible thanks to the draconian tort reform laws in the state. That you've even found a willing attorney to help your family is a blessing. Most families with legitimate Texas med-mal claims aren't so lucky.
The simple reality is that the Texas legislature decided that holding down insurance premiums was a greater concern than victims losing rights in Texas. So they slapped caps on damages. You are 100% right about one thing, it is not justice, fairness or any of those other things a legal system is supposed to uphold. Its big business interests being placed over individual rights. But it's not your lawyer's fault and there is little he can do about it. This is the harsh reality of so called "tort reform."
When tort reform passed, a huge number of Texas medmal lawyers either quit handling medmal or left the state.
The typical fees in a personal injury contract (including medmal) is 1/3 before filing a lawsuit, 40% after filing a lawsuit and 45% if it goes up on appeal. That doesn't mean the lawyer won't reduce them in some circumstances, but these numbers are not uncommon in Texas.
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