Lawyer Contingent Fees
Are Essential For Access To Justice
CHICAGO, Nov. 15, 2004 - Lawyer contingent fees in medical malpractice cases are essential to preserving an individual's right to seek redress for injuries, according to a new report released by a special task force of the American Bar Association Tort Trial and Insurance Practice Section.
"In the American justice system, contingent fees are considered an essential component to providing victims of negligence and injury - at the hands of any profession or industry - with the right to seek legal redress," said Steve Lesser, a Florida lawyer and chair of the Task Force on the Contingent Fee.
The views expressed in the report have not been approved by the House of Delegates or the Board of Governors of the American Bar Association and should not be construed as representing the policy of the ABA.
The contingent fee system was developed to enable injured parties to file suit even if they lack the financial means to pay. However, recently contingent fees have become the focus of efforts by medical liability reform proponents.
Voters in Florida passed an amendment to limit the amount of money lawyers can make in medical malpractice cases, which could lead to fewer lawyers taking these cases.
The task force was created in September 2003 to evaluate contingent fees and practices and proposals for their reform. Members looked at such issues as how well the system provides access to justice, how contingent fees affect the financing of tort actions, and how ethical rules relating to the reasonableness of contingent fees apply and are enforced.
Among the group's findings are:
* Limitations on fees by the formula recently proposed in
Florida and elsewhere risk compromising access to justice by medical malpractice victims. Without the prospect of reasonable fees, competent counsel would be unwilling to assume the high cost burden associated with typically complex medical malpractice actions.
* The right of people who have suffered injury as a result of medical malpractice to seek redress for their injuries in the courts must be ensured. A fair and reasonable contingent fee is essential to preserve that right.
* Only a small percentage of true medical malpractice events
in the United States becomes the subject of a claim.
Practically speaking, most physicians have only marginal exposure to medical malpractice claims.
* Limiting fees by the formula recently proposed in Florida and elsewhere by physicians' associations would reduce the incidence of meritorious medical malpractice and further reduce legal exposure for those who commit medical malpractice.
* Contingent fees rates in medical malpractice actions are not fixed but often cluster around traditional percentages.
To prevent unreasonable fee agreements and to foster more efficient claim resolution, clients would be well served by additional measures, some of which are already in practice in states such as Florida, to educate and protect them and to promote bargaining symmetry in lawyer-client fee agreements.