Attorney advice needed

self | 7/26/05 | Mfreddy

[mfreddy]

In February '04 my wife gave birth to a son who suffered a massive brain injury 12 hours after birth. After much counseling and consideration we have decided to consult with a leading med/mal attorney who has been consulting with experts regarding the merits of a possible case against a number of providers that were involved prior to as well as after delivery.

My question is regarding fees. I believe there are general standards regarding fees and I'd like to know what is appropriate and reasonable. Is this something that can be negotiated? The attorney reviewing this matter is a leader and well recognized in the med/mal world and I don't want to offend him. I feel I need to obtain advice in this matter before meeting with him later this week. My wife and I have not entered into any agreements to date and want to be prepared as we approach this subject. His research so far has been extensive and he has agreed to provide this service without charge due to the possible merits of our case.

Thanks to all that can help.

[balrog666]

. Do you have any freaking idea how much medical costs are going to cost this family in the future?????

Do you know who is at fault? If someone is not at fault, should they have to pay anyway?

[hc87]

For a contingency fee case, assume 33 to 40% will go to the attorney. And watch for the costs, as these will be in the tens of thousands of dollars. If you can get the attorney to front those fees, you should think about it if you have near term financial concerns.

Keep in mind that the very best medical malpractice lawyers can pick and choose the cases they want to try and you may be stuck paying the price they demand to get a top shelf med-mal trial lawyer. And that, quite frankly is the key. You have to find someone who tries cases and doesn't try to settle everything because the only lawyers that an insurer takes seriously in evaluating a case are those they know can win in front of a jury.

If you haven't done so already, I would try to find some local lawyers and ask about your prospective attorney's professional reputation. I would also find out if he/she is a member of the American College of Trial Lawyers. If he/she is, then he/she is in all likelihood the real deal. Also go take a look at the lawyer's biography at http://www.martindale.com

When you search for the lawyer's name, check the box next to the line reading "Search Martindale-Hubbell Peer Review Rated Lawyers." If your lawyer has been peer reviewed, his or her grade will be here. You want someone with an "AV" rating. Finally, call your local bar association and ask if the lawyer has ever been the subject of an ethics complaint.

[balrog666]

Basically you hear about a sad situation and for no reason at all take the other side and try to make things hard. I don't see what expressing doubt about the validity of the case helps anything

I guess you've never been wrongfully sued.

[reagandemocrat]

Well, there certainly appear to be a lot of folks here who've already adjudicated your poor son's case--they have amazing medical/malpractice credentials.

I recommend you simply ask the lawyer what his fees will be. Some states (California for instance) regulate the percentage a lawyer can recieve by way of fees in med/mal cases. California also limits the amount of general damages (ie. pain and suffering) recoverable.

The crux of the matter is that you or your lawyer will have to obtain a medical expert to give an opinion as to whether or not the care and treatment your son received fell below the standard of medical care in your community, and, if so, did that failure cause your son injury? Both very tough questions.

Prayers for you, your wife and your son.

RD

[thoughtomator]

I'd say the best person to ask would be another attorney in the same field... also you can call your local Bar Association and they will tell you what average costs are, keeping in mind that good attorneys tend to cost more than average.

[SlowBoat407]

And I do have compassion, including for the doctors, nurses, hospitals, and insurance companies who may have to pay for something that may not have been anyone's fault.

And are you deciding, from where you sit, that there was no fault? Please post relevant depositions, briefs, exhibits and testimony to back up your claim. I believe mfreddy is just a tad closer to the situation than you are, and is in a better position to decide whether there is the slimmest chance that someone, somewhere, may be responsible for his child's misfortune.

Or do you just want to, literally, add insult to injury?

[balrog666]

And are you deciding, from where you sit, that there was no fault?

And are you deciding, from where you sit, that there was fault? How? Why?

[chris1]

How can you find out who is at fault if you don't hire an attorney or doctor to review the matter?

[mfreddy]

That is the issue we've been dealing with. As far as I'm concerned, everything is God's will. Does that mean He allowed this to happen or does that mean His will was that there were a series of oversights that contributed to my son's injury? Without going into detail, a cursatory look through the initial medical records point towards a series of mistakes that at least contributed to a delay in the diagnosis and treatment.

Believe me, it's with a heavy heart and conscience that we even consider this and we've received extensive counseling from much more thoughtful sources, both secular and religious, than one on this thread.

[chris1]

Its all shades of grey. What might be wrong to you might not be wrong in reality.

[balrog666]

How can you find out who is at fault if you don't hire an attorney or doctor to review the matter?

Interesting question. Would you prefer your medical case be evaluated by another doctor or a lawyer skilled in circumventing the law? How about by your skilled lawyer's pet doctor?

I suggest that it all depends on what it is that you want to learn.

[conservativebabe]

Oh for crying out loud, how do you go through life second-guessing like that? This is a fellow FReeper. Do you really want to assume that this is frivolous? You could have said NOTHING until you heard more facts. Instead, you chose to take the opposing side with no basis to back it up.

[balrog666]

Its all shades of grey. What might be wrong to you might not be wrong in reality.

Or to a random set of 6 or 12 boobs who couldn't get out of jury duty.

[mfreddy]

The attorney is a member of the American College of Trial Lawyers. In my area, he's the real deal.

Thanks

[SlowBoat407]

And are you deciding, from where you sit, that there was fault? How? Why?

Unlike you, I have chosen not to pass judgement on any of the participants here, except for you, who have chosen to insult someone for asking a question about attorneys' fees.

[mfreddy]

Since you're "wandering"

My wife of ten years and I didn't want a condom, we wanted a child.

"dropping" a baby in a field, and having a child in a hospital equipped (and well compensated) to birth children are two different situations.

Sorry you're so disappointed.

[Eaker]

It's really a shame how those people were deprived of the thrill of suing somebody for an accident while helping in a process that is as natural as anything can be and can be done without the assistance of a millionaire doctor in a multimillion dollar birthing unit.

I missed the part where the doctor donated his time. If the doctor was doing a job of work for pay and did not perform in a workmanlike fashion then they must pay the consequences. It is a cost of doing business and the D student doctors need to be held responsible.

PS: Look up the infant and mother death rates back when they were popping babies out in a field.

As to the condom issue some of us men love their wife and wanted to have kids.

[Dog Gone]

I'm not a trial attorney. I wanted to be one before I entered law school, but I tried some clinial semesters as one and found out that the TV depiction and reality were quite different.

Civil trial attorneys are going to be quite expnsive. If you can arrange it on a contingency basis, that is the best. Usally you can. Negotiate for 33% for the attorney fees.

That's not always possible when you contact the best law firms, but the chances of getting a higher award to offest that are much higher, too.

[Shazbot29]

Blood money??? You know absolutely nothing of what you speak. Do you have any freaking idea how much medical costs are going to cost this family in the future?????

John Edwards, is that you (Chris1 I meant, BG666)?

[Iron Eagle]

Mfreddy:

As you can tell by now -- some folks who post on this site lack intellect, compassion, and common decency. I am sorry for your tragic situation, and on behalf of those posters here who have not the upbringing to know better, I apologize for the foolish and unhelpful remarks. Posters such as these are why Free Republic is no longer the site it one was -- where intelligent, substantive thoughts were exchanged on difficult ideas. Now, one must weed through the kids, crackpots, and fools for an occasional nugget. It's tiresome -- though I still do it because I can pick and choose my threads.

Anyway -- A case such as yours will almost certainly be one where a contingency fee is appropriate. (Under a contingency fee, most states still require that Plaintiff's pay costs, such as filing fees, deposition fees, and other nonlegal fees. Some states will permit these costs to be advanced).

The important part for you is to select the highest quality attorney, with the best experience, who is well-known and practices in the jurisdiction in which the case will be brought. You should ask him or her about the fee structure, though they are required to tell you. (Anyone who is not painfully upfront about the structure, is hiding something.)

Most attorney's on these type of cases have set fee structures. Of course, you can always attempt to negotiate. There is nothing wrong with that, but recognize that in the end, the goal is to get the best representation you can -- to increase the chances at a recovery that will meet the needs of your family moving forward.

Also -- be sure that the attorney evaluates this case upfront -- explaining the strengths and weaknesses. Also, find out with whom they have consulted, and against whom and why they believe their is a claim for malpractice. Sadly, catastrophic injury is not always the result of medical malpractice. You must seriously consider the strain of pursuing a case that may not be strong.

In the end, some fee structures are determined by states. NJ, for example, used to put caps on the fee percentage based upon the demand. The higher the demand, the lower the percentage. (I don't know if that is still the case in New Jersey).

In addition, ask counsel what caps might be in place in the state in which you sue. For example, if you have a 1.2 million dollar cap on all forms of med-mal actions, a 40% fee may not be appropriate. On the other hand, if there is no cap, and the claim could be 5 million or more, 40% might be very appropriate.

Ask about the experts the attorney uses. What are there qualifications and reputations? Are they "mill doctors" who make their living appearing in med-mal cases as experts for Plaintiff's lawyers? If so -- you might want to look elsewhere.

None of these decisions are easy, and you are wise to explore your options. Don't be afraid to ask questions, and don't be afraid to ask for a lower fee. Ask the lawyer to value the medical costs and care costs both owed and moving forward. If a verdict will not sustain those fees, he should cut his percentage. Ask him what recent verdicts are and have been in the jurisdiction on cases that may be similar. Ask him if he is in a Court with tough juries or more sympathetic juries. (He should know). Ask him if the Court in which the suit is to be filed has a judge or judges that may be difficult on experts, or who have a propensity to exclude evidence. All of these factors may reduce your chances of winning, even a meritorious suit. (Yes -- there are plenty of meritorious suits out there, and many deserving Plaintiff's go home with no money -- contrary to the silly and uninformed beliefs of some on this site.)

I am not a med mal expert -- but I litigate large commercial cases for fortune 500 companies. Almost all of my work is on the defense side -- so I am not terribly sympathetic to Plaintiff's lawyers. Having said that, the system is here for people with legitimate claims to seek redress. And no case is more compelling and difficult than one where a child suffers catastrophic injury. If your case has legal merit -- you are right to thoughtfully pursue a remedy that will help you to bear the cost and burden of providing care and support for your child.

My very best to you.