Tuesday, January 29, 2008

Contingency Fees

A contingency fee is where the attorney agrees to represent a client without requiring the client to pay the attorney any fees up front. In return, the attorney receives a percentage of whatever amount he is able to recover on behalf of the client. If the attorney is not able to win any money for the client, then the attorney does not get paid. With medical malpractice cases in Utah, the legislature has determined that 1/3 is the maximum contingency fee an attorney can charge a client for his services.

Much of the discussion in our country about "trial attorneys," and why they are a blight on society has to do with contingency fees. Insurance companies love to insight the public against trial lawyers by claiming that attorneys are only interested in making money off the misfortune of their clients. Contingency fees, they claim, are all the evidence one needs to support this claim.

However, the truth of the matter is that contigency fees make it possible for individual citizens to hold large corporations and insurance companies accountable for their actions. Without contingency fees the average person would not be able to pursue a lawsuit. Let me explain why.

Depending on the market in which you live, attorneys charge anywhere from $150 to $300 an hour for their services. If you are involved in a divorce or a criminal case, you will likely have to provide your attorney with a retainer of $3,000 to $5,000 just to get them to take the case. They then work against that retainer at an hourly rate. In other words, they do not do any work on your case until they know they have money in their account to compensate them for that work. Large corporations and insurance companies pay their attorneys the same way.

Attorneys that handle personal injury cases, on the other hand, do not put the same financial burden on their clients. Whereas a divorce or criminal case may be handled in a handful of hours, personal injury cases often take dozens, if not hundreds, of hours to resolve. If a patient injured as a result of medical malpractice were required to pay their attorney $25,000 up front, just to get the case started, they would likely have no choice but to walk away from the case. Not only would this leave the individual patient uncompensated for her injuries, but it would also leave society as a whole worse off. Many of the safety features and procedures we all benefit from are the result of lawsuits brought by individual citizens.

Contingency fees also serve the important purpose of discouraging frivolous lawsuits. Despite what tort reformers in legislatures around the country are saying, there are very few frivolous lawsuits because there is no money to be made on such cases. If an attorney knows that he will only get paid when he actually wins money for his client, he has not incentive to take on cases that have no merit. If contingency fees were eliminated then the only cases that would be litigated would be those with wealthy plaintiffs, regardless of whether the case was actually legitimate.

So, while 1/3 may seem like a lot of money, when one considers the financial risk assumed by the attorney, as well as the alternative of having to pay the attorney up front, it is clear that contingency fees are an important and vital part of our legal system in this country.

Thursday, January 24, 2008

Statutes of Limitations

In Utah the legislature has determined that two years is the length of time one has to sue a health care provider for medical malpractice. Whether or not this is fair is a discussion for another day.

While it may seem like two years is not a very long time, indeed this is shorter than the statute of limitations for other types of personal injury, there are some important caveats to this law that may lengthen the time period and need to be understood.

First, the two years does not begin to run until you discover, or should have discovered, the injury. When someone "should have" discovered an injury is obviously open to interpretation and depends on the particular facts of the case.

Second, regardless of when you discover, or should have discovered, the injury, the suit must be brought within four years of when the negligence occurred. That means if you discover the injury three years after it occured, you only have one year left to bring a suit.

Third, there are exceptions to the above rules if the case involves a foreign body that was left in a patient. If you discover that a foreign object was left inside you during surgery, for example, you have one year in which to bring a lawsuit if you have already passed the four year window from when the surgery occurred.

Fourth, there is another exception to the four year rule if the patient was prevented from discovering the negligence because the health care provider fraudulently concealed the misconduct. In that case you also have one year from the time you discover the injury to bring a suit if you are already passed the four year window.

Fifth, the statute of limitations does not begin to run for children until they reach the age of 18. This particular exception is very important to understand. Regardless of when your child was injured, it is still possible to seek a recovery for them if they are under the age of 18. Many lawyers do not understand this exception because the statute on the books actually says otherwise. However, the Utah Supreme Court has stated that children have until they are 18 to bring a lawsuit. For some reason, the Utah Legislature has chosen not to reflect this change in the statute.

Statutes of limitations can be very tricky and need to be looked at in the context of the facts of the case. If you have questions about whether it is too late to bring a lawsuit for medical malpractice it is best to consult with an attorney experienced in this area of the law.

Wednesday, January 23, 2008

Elements of a malpractice case

I get many calls from potential clients who are upset about what has happened to them in their doctor's office or at a hospital. Almost invariably, the conversation starts out with the statement, "I don't know if I have a case or not, but . . ." and then they proceed to tell me what happened.

I spend much of my time explaining to people what is required to have a viable medical malpractice case. It often turns out that the person does not have a case, but they usually feel better about having talked it through with an attorney.

In short, there are two basic elements to a malpractice case. First, the health care provider must have done something negligent. That is, they did something that no reasonable doctor or nurse would have done under the same circumstances. For example: they left a sponge in you during surgery, or they failed to see a nodule in your lung on an x-ray.

Secondly, the conduct of the health care provider must have caused some sort of harm. We must be able to connect the patient's injuries with what ever the doctor or nurse did wrong. For example, if a pharmacy sent you home with the wrong medication, that would be negligent. However, if you were lucky enough to realize the mistake before you took the medication, then no harm was caused by the pharmacy's conduct.

So, any evaluation of a potential malpractice claims starts with trying to satisfy these two elements. What did they do wrong and what harm did they case?

Another very important aspect to medical malpractice cases is the extent of the damages. This topic is covered in another post.