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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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  3. The practitioners and judges who hail E-filing as the Saviour of the West need to contain their respective excitements. E-filing is federal court requires the practitioner to cram his motion practice into pigeonholes created by IT people. Compound motions or those seeking alternative relief are effectively barred, unless the practitioner wants to receive a tart note from some functionary admonishing about the "problem". E-filing is just another method by which courts and judges transfer their burden to practitioners, who are the really the only powerless components of the system. Of COURSE it is easier for the court to require all of its imput to conform to certain formats, but this imposition does NOT improve the quality of the practice of law and does NOT improve the ability of the practitioner to advocate for his client or to fashion pleadings that exactly conform to his client's best interests. And we should be very wary of the disingenuous pablum about the costs. The courts will find a way to stick it to the practitioner. Lake County is a VERY good example of this rapaciousness. Any one who does not believe this is invited to review the various special fees that system imposes upon practitioners- as practitioners- and upon each case ON TOP of the court costs normal in every case manually filed. Jurisprudence according to Aldous Huxley.

  4. Any attorneys who practice in federal court should be able to say the same as I can ... efiling is great. I have been doing it in fed court since it started way back. Pacer has its drawbacks, but the ability to hit an e-docket and pull up anything and everything onscreen is a huge plus for a litigator, eps the sole practitioner, who lacks a filing clerk and the paralegal support of large firms. Were I an Indiana attorney I would welcome this great step forward.

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