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Supreme Court rules on med mal fees

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Medical malpractice attorneys are sighing in relief after a much-anticipated ruling by the Indiana Supreme Court this afternoon.

Justices granted transfer and issued a per curiam opinion this afternoon on a case that had the potential to dramatically change how med mal attorneys recover fees in these types of cases.

But instead of altering that, the unanimous ruling stipulates that the fee structure often used by these med mal attorneys can stand, and the court offers guidance for attorneys seeking to ensure fee arrangements are ethically sound.

"Although a numerical answer to the question of reasonableness might have some utility, it is simply not possible to put a number on the ethical requirement that attorney fees be reasonable," the court wrote. "Likewise, there can be no 'safe harbor' range of permissible fees."

The case In the Matter of Daniel B. Stephens, No 45-S00-0505-DI-244, stems from a disciplinary action case against LaPorte attorney Stephens, who received a public reprimand from the Indiana Supreme Court in August 2006 for attempting to circumvent the limitation on attorney fees that can be charged for recoveries from the Patient Compensation Fund. While state law dictates a 15 percent cap on fees recovered from the fund, Stephens took the entire amount obtained from health care providers in addition to the 15 percent from the fund - that totaled about 30 percent of the total recovery.

Justices publicly reprimanded him last year for what it described as a violation of Rules of Professional Conduct. Now, the court has deemed the fee structure used permissible; though it reaffirmed the public reprimand based on its previous ruling and agreement. The court wrote that fees of all types in all manner of cases must be reasonable based on all the factors listed in Professional Conduct Rule 1.5(a).

"It is, of course, permissible to construct fee arrangements that escalate the percentage of recovery, depending on the stage of the proceeding...at which it is achieved," the court wrote. "And the rules with respect to disbursement of attorney fees in the case of structured settlements remain unaffected by this opinion."

In today's opinion, Chief Justice Randall T. Shepard wrote a concurring separate opinion that says, "It is far from clear that today's per curiam represents the best policy for determining reasonable fees at the intersection of Rule 1.5 and the medical malpractice statute. This process has morphed from an agreed-sanction disciplinary case into something that looks much like rule-making, except that it has lacked many of the steps thought useful for good rule-making. Partly for this reason, it does not answer a good many questions important to this topic."

He noted that his decision to join in the outcome was largely because of the briefs and affidavits submitted by the Indiana Trial Lawyers Association - which the court granted a motion to intervene - had been so persuasive.

Those practicing in the area - such as med mal attorney Tim Caress with Cline Farrell Christie Lee & Caress in Indianapolis - say they are relieved with the decision.

"We're all breathing a sigh of relief," he said. "We have been upside down for the last eight months after our status quo was turned on its head, but this says it's OK to do what we've been doing."
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  1. What a fine article, thank you! I can testify firsthand and by detailed legal reports (at end of this note) as to the dire consequences of rejecting this truth from the fine article above: "The inclusion and expansion of this right [to jury] in Indiana’s Constitution is a clear reflection of our state’s intention to emphasize the importance of every Hoosier’s right to make their case in front of a jury of their peers." Over $20? Every Hoosier? Well then how about when your very vocation is on the line? How about instead of a jury of peers, one faces a bevy of political appointees, mini-czars, who care less about due process of the law than the real czars did? Instead of trial by jury, trial by ideological ordeal run by Orwellian agents? Well that is built into more than a few administrative law committees of the Ind S.Ct., and it is now being weaponized, as is revealed in articles posted at this ezine, to root out post moderns heresies like refusal to stand and pledge allegiance to all things politically correct. My career was burned at the stake for not so saluting, but I think I was just one of the early logs. Due, at least in part, to the removal of the jury from bar admission and bar discipline cases, many more fires will soon be lit. Perhaps one awaits you, dear heretic? Oh, at that Ind. article 12 plank about a remedy at law for every damage done ... ah, well, the founders evidently meant only for those damages done not by the government itself, rabid statists that they were. (Yes, that was sarcasm.) My written reports available here: Denied petition for cert (this time around): http://tinyurl.com/zdmawmw Denied petition for cert (from the 2009 denial and five year banishment): http://tinyurl.com/zcypybh Related, not written by me: Amicus brief: http://tinyurl.com/hvh7qgp

  2. Justice has finally been served. So glad that Dr. Ley can finally sleep peacefully at night knowing the truth has finally come to the surface.

  3. While this right is guaranteed by our Constitution, it has in recent years been hampered by insurance companies, i.e.; the practice of the plaintiff's own insurance company intervening in an action and filing a lien against any proceeds paid to their insured. In essence, causing an additional financial hurdle for a plaintiff to overcome at trial in terms of overall award. In a very real sense an injured party in exercise of their right to trial by jury may be the only party in a cause that would end up with zero compensation.

  4. Why in the world would someone need a person to correct a transcript when a realtime court reporter could provide them with a transcript (rough draft) immediately?

  5. This article proved very enlightening. Right ahead of sitting the LSAT for the first time, I felt a sense of relief that a score of 141 was admitted to an Indiana Law School and did well under unique circumstances. While my GPA is currently 3.91 I fear standardized testing and hope that I too will get a good enough grade for acceptance here at home. Thanks so much for this informative post.

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