Posted by Bill Sandweg on 01 October 2017.
House Bill 1215 places the thumb of Congress squarely on one side of the scales of justice and, unsurprisingly, it is not the side of the patient. Last week I wrote about the caps on damages found in the medical malpractice bill recently passed by the House of Representatives. Caps were not the only things the bill did to make it harder for people injured by medical malpractice to be fairly compensated for their injuries. The bill also injected itself into the attorney-client relationship.
It goes without saying that no victim of medical malpractice can take on the medical profession and navigate the court system alone. The malpractice victim needs a lawyer’s help and not just any lawyer will do. In addition to being a good trial lawyer, the successful malpractice lawyer needs to know medicine, medical terms, anatomy and how the doctor/hospital system works in order to adequately represent injured patients. There are not many attorneys in Arizona or elsewhere who meet all of those criteria.
Medical malpractice cases are expensive. Every case requires expert witnesses to testify on standard of care, causation and damages. It is unusual to find an Arizona doctor who is willing to testify against an Arizona colleague. This means that the patient’s attorney has to look out of state. This usually means travel expenses to go to the experts or to bring the experts to Arizona for trial. It is not unusual for an attorney representing a patient to write checks to expert witnesses or for related discovery expenses and travel in an amount well over $75,000.00.
The cases also require a great deal of legal time due to their complexity. The typical fee is contingent, which means that the attorney does not get paid unless he or she makes a recovery for the client. The attorney also does not get back the money spent on experts and discovery expenses unless he or she makes a recovery for the client. The typical contingent fee in medical malpractice cases is 40%, a percentage which reflects the necessary additional expertise and the risk of not getting a recovery. Here is where the House bill has injected itself.
In a section of the bill the authors ironically describe as “maximizing patient recovery,” they limit the amount a patient can pay his or her attorney by way of a contingent fee. The successful lawyer can recover 40% only on the first $50,000 recovered for the client. The percentages go down from there to only 15% of any amount in excess of $600,000. For a recovery of $1,000,000, the attorney’s fee would be capped at a little over 20% of the total recovery. Far from intending to maximize patient recovery, the authors intend to make it more difficult for a patient to find a lawyer to take his or her case. Many injured patients who were not forced out of the system by having their non-economic damages capped, will be forced out because their total recovery will not be enough to pay for the time a skilled malpractice attorney will have to spend on their case.
Of course, nothing in the bill limits the amount doctors, hospitals and malpractice insurance companies can pay the attorneys they hire to prevent injured patients from making a recovery and nothing limits the amounts doctors and hospitals can charge their patients for medical treatment. We have to respect the free market, after all. If you think this is the load of horse pucky it is, let your Congressman and Senators know.