Category Archives: Medical Malpractice

 

November 30th, 2006

No, your medical malpractice case will NOT settle fast

When starting a New York medical malpractice case many folks invariably ask, “How long will it take?” I’d love to give a good answer about how fast the courts move, or how quickly insurance companies offer a quick settlements, but that’s not the way it works.

It will take years. Even if a surgical team leaves a clamp or sponge inside you, the defendants are unlikely to even discuss a settlement until the time of jury selection. The reasons are not terribly complex, and are related in part to the fact that the defendants’ insurance companies will hire the defense lawyers and plot the strategy:

  • If the insurance companies make your life miserable — even on slam dunk cases of retained surgical equipment as shown in the link above — then attorneys won’t take smaller suits because it isn’t worth the immense amount of time and money needed, thereby decreasing the overall number of malpractice cases;
  • Defense lawyers bill by the hour and have no incentive to reach a quick disposition; and
  • If you get a judgment in your favor in New York, then interest on the money starts to run from the time of the judgment, not from the time of the incident. Thus, the insurance companies continue to hold and use the money for investments in the interim.

So there it is, short and not-so-sweet. Nothing is likely to happen fast.

And because of this, any medical malpractice case that is taken must be prosecuted and prepared with the intent to take a verdict. It would be foolish to hope for a settlement offer that may never come.

Links to this post:

How a personal injury lawyer views the medical malpractice system
How a personal injury lawyer views the medical malpractice system. Personal injury lawyer Eric Turkewitz responds to my recent USA Today piece on fixing the medical malpractice system. by Eric Turkewitz. In a USA Today op-ed, …
posted by Kevin @ November 18, 2009 2:00 PM


medical malpractice – vetting the case
cross-posted from the new york personal injury law blog. about 95-98% of medical malpractice inquiries to my office are rejected. having previously discussed medical malpractice law and the economics of bringing such an action, …

posted by Eric Turkewitz @ May 22, 2007 5:33 PM

medical malpractice economics
cross-posted from new york personal injury law blog. two weeks ago i wrote medical malpractice – a primer, directed toward members of the medical community due to a recurring theme i saw on medical blogs: the idea that such suits are …

posted by Eric Turkewitz @ April 26, 2007 3:14 PM

medical malpractice — a primer
i’ve been reading a lot of medical blogs lately, and medical professionals have been reading mine. and as many doctors have ranted about attorneys (such as those in the comments at kevin, md and flea) i’ve noticed a lack of some basic …

posted by Eric Turkewitz @ April 13, 2007 10:34 AM

 

November 28th, 2006

How much are the legal fees in a personal injury case?

In part one of this FAQ, I discussed 1) the need to find a lawyer in your area, and; 2) concerns one should have if they are solicited by an attorney. Now we turn to legal fees:

3. How much are the legal fees in a negligence case?

Most New York personal injury law firms operate the same way:

First, there is no legal fee for an initial consultation. If the case is taken it is usually done on a contingency basis, which means that the lawyer gets paid only if the client gets paid. This is an incentive for the lawyer to only take good cases with serious injuries, and it relieves a burden from clients who would not otherwise be able to afford a good attorney.

Legal fees are governed by the Judiciary Law, which establishes a limit of 1/3 of any recovery as the fee, with the exception of medical and dental malpractice cases where the fee is lower (see below).

Over the course of the representation, there will be expenses that most attorneys will generally advance on behalf of the client, such as for medical records, experts, stenographers, and certain court filings. There may be exceptions to this, and a good attorney will candidly discuss them with you. (For example, if a settlement offer is made that the attorney recommends accepting, and the client refuses, the client might be asked to front any additional expenses.)

At the time of recovery, the firm will first reimburse themselves for the cash outlay for expenses and then do an apportionment of the remaining recovery. For example, if a case settles for $100 and there was $10 in expenses paid by the attorneys on behalf of the client, then the $10 would be paid back to the attorney and the remaining $90 would be used to determine the legal fee.

4. What are the fees in New York medical malpractice and hospital malpractice cases?

Medical, dental and hospital malpractice cases are also governed by the Judiciary Law, which sets forth a legal fee “sliding scale” structure that looks like this:

30% of the first $250,000 of the sum recovered;
25% of the next $250,000 of the sum recovered;
20% of the next $500,000 of the sum recovered;
15% of the next $250,000 of the sum recovered;
10% of any amount over 1,250,000 of the sum recovered.

Thus, while malpractice cases are significantly more difficult to bring, and cost a great deal more (due to the necessity of hiring additional experts), the fees are lower than in other New York personal injury matters. In fact, they are some of the lowest in the nation. Because of this, many New York firms have a much higher threshold barrier in taking malpractice cases. Essentially, the lower fees, greater expense and significant technical difficulty of bringing such suits has given virtual immunity to the medical profession for smaller claims. Samples of some of the New York medical malpractice cases my firm has handled can be viewed at this link, and they demonstrate the complexity of many matters.

In future FAQs, I hope to cover the need for speed in certain things, the issues around how to “value” a potential case, and other subjects.