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Parents looking into making a birth injury claim often have questions about how it all works. Most people, fortunately, have never been through the civil legal system. Although it’s not something we would wish on anyone, it does make the first time somewhat nerve-racking.
While it may be possible to handle small personal injury claims (like automobile accidents and slip-and-falls) yourself, medical malpractice claims are almost always too unwieldly to be handled efficiently by a non-lawyer. The cases are expensive, and costs can commonly rise to well over $50,000.00 to adequately research and prosecute these claims. Also, doctors, hospitals and their insurance companies will not usually take a claim seriously unless a lawyer is on the other side. They may offer a paltry settlement, but that offer usually has less to do with the actual merits of the case, and more to do with trying to stop a meritorious claim from becoming a problem. Essentially, if the malpractice is serious and the injuries are severe, a lawyer is the best chance for recovery.
A recent case in the Fourth District Court of Appeals for Florida examined legal fees, so it is a good time to explain how legal fees work, generally.
When a person hires a lawyer, he or she will usually sign a retainer agreement. It is that agreement which authorizes the lawyer to work on behalf of the client, and explains the terms of their contract. Included is an explanation of payment. Most people cannot afford to pay a lawyer in a medical malpractice case by way of a flat fee (a blanket charge for all legal work) or an hourly fee. The legal field, therefore, invented the contingency fee. Essentially, this is the foundation of the advertisements you hear so often—“no fee if no recovery.” The contingency fee provides an effective means for regular people to file lawsuits against big corporations and insurance companies—organizations that have legions of lawyers at their disposal. It is a way to level the playing field for people injured by medical malpractice.
The contingency fee owed to the lawyer (if the case is successful) is a percentage of the total settlement or verdict. Most firms will have two different fees—one if the case settles before a lawsuit is filed, and one if the case resolves (by settlement or verdict) after a lawsuit is filed. The reason for these two methods is simply that a filed lawsuit takes more time, money and firm resources than a case which settles amicably before a lawsuit. Importantly, the contingency fee is not due until the insurance company or medical provider pays the client. And, if the case is lost, the client never pays the lawyer—not even for the case expenses.
As for the amount of the percentage—it depends on the law firm, the state in which the litigation takes place, and even the entity against whom it is leveled (for example, some governmental entities receive the benefit of laws that limit attorneys’ fees).
In the Florida case referenced above, the law firm received a verdict at trial of approximately $31 million on behalf of a child and family for a birth injury lawsuit. Because the hospital was considered a governmental entity, that verdict was automatically reduced to $200,000. However, the law firm petitioned the legislature, per Florida’s procedures, and was allowed to revive the verdict up to $15 million. However, the legislature limited the attorneys’ fees and costs in the case to $100,000. In that case, the law firm spent approximately $500,000 to research and litigate the case. That much money is not unusual in a birth injury lawsuit of this magnitude. Fortunately, the child will have money put away in trust to help care for him for a lifetime.
The decision of whether to contact a lawyer can be a tough one, but there is never any harm in asking questions. If you have experienced medical malpractice or a birth injury in your family, and you want to know more about your rights or whether you might be able to file a lawsuit, contact our medical malpractice lawyers to evaluate your case. You can reach us at (440) 252-4399 or online for a free consultation.
