The Costs of Losing a Medical Malpractice Case

To the uninitiated, many think of a medical malpractice lawsuit as a claim brought for the purpose of holding a provider accountable, as well as obtaining economic and/or non-economic damages. Presuming victory, these damages will also include attorney’s fees, which for the plaintiff are contingent upon victory in the case. On top of damages, costs will also include payments and incidental expenses (such as travel, food, lodging) for expert witnesses who are compensated for their time and expertise. Additionally, the loser may have to pay defendant’s litigation costs and fees should the defendant prevail on the merits. In these cases, litigation can be a risky venture if the plaintiff fails. Not only do they fail to hold the other party accountable and reap an award, but they may have to pay the other party’s costs on top of their own. This also adds insult to injury, when the family still must deal with the emotional pain of injury or death to a loved one that can never be remedied.

A Staggering Bill in Colorado
In Colorado, a judge ordered a family to pay $340,000 in legal fees for a defendant hospital after losing in their case against it. During the birth of their child, the child was deprived of oxygen while still in the womb. The child was not breathing and failed to exhibit a heart rate for a stretch of thirteen minutes, which resulted in permanent brain damage. The child, now four years old, will always require medical care and assistance. His parents sued the hospital, arguing that the doctor and nurses failed to diagnose when there were indications of oxygen deprivation. The family lost, however, when a jury found for the hospital.

Subsequent to the jury finding, the hospital file with the court for the plaintiffs to pay the costs of certain legal fees totaling $340,000, to which the judge agreed and ordered that those costs be paid. Colorado law permits but does not require a defendant to recover costs from a losing plaintiff. These expenses included “coffee, snacks, and small food items like ice cream and frozen yogurt for witnesses and defendants . . . dinners and room service fees, including one witness’s expenses that totaled $999.06” as well as a witness’s car service and airline expenses. The defendant’s attorneys even tacked on $250 for a fine incurred by a nurse while smoking in her hotel room, although this was subsequently removed from the bill in response to objections. The family told local news that they anticipate filing for bankruptcy as a result of this enormous debt.

This case is a sad but cautionary tale of the importance of understanding the implications and all possible outcomes of a medical malpractice litigation. In many situations parties will handle their own attorneys fees regardless of who wins, but some states do allow for recovery of fees by a winning party in different circumstances. It is vital that prospective plaintiffs evaluate all aspects of a case, and be aware of the risks and not only the potential awards.

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