Recently the Senate gathered for a rare Sunday session to thoroughly defeat an amendment that aimed to slash fees for plaintiffs’ lawyers in medical malpractice cases.
The rejected amendment, presented by Sen. John Ensign, R-Nev., would have imposed caps on the fees that plaintiffs’ lawyers can collect when they win a medical malpractice case. The lawyers would have been limited to one-third of the first $150,000 awarded in compensation and one-fourth of any amount above that.
Stopping the amendment in its tracks prevented consequences that would have been damaging to both attorneys and injured people hoping to pursue medical malpractice lawsuits.
Currently in medical malpractice claims, fees are generally negotiated between the client and the attorney on a contingency basis; this means that the attorney gets paid a percentage of the amount the injured person recovers, but only if the client receives compensation. Under such an arrangement, if the injured person doesn’t recover any compensation, he or she pays no attorney fees. This type of fee arrangement reduces the upfront costs of pursuing a lawsuit for the injured person, ensures access to quality legal representation and enables an injured person to seek justice through the court system.
Those who favor the cap argue that contingency fee arrangements provide unreasonable incentives for attorneys to pursue medical malpractice claims. In turn, they argue, these fee arrangements encourage frivolous lawsuits, force doctors to practice defensive medicine and send insurance costs skyward. But, as those who oppose the cap point out, this fee cap was only pointed at plaintiffs’ attorneys — not defense lawyers who may charge hundreds of dollars an hour for their services. Restricting one side without similarly restricting the other is bound to result in an unfair outcome.
Furthermore, without the contingency fee arrangement, a victim of negligence might end up with nowhere to turn for assistance. Few injured people have the resources to cover the extraordinary costs required to pursue a malpractice action.
The amendment was clearly designed to discourage personal injury attorneys from taking medical malpractice cases. Limiting contingency fees might ultimately phase out the vigorous pursuit of medical malpractice claims, but this lack of accountability would likely lead to more actual medical negligence. Without contingency fees, a negligent physician or institution might essentially become immune from any legal liability.
