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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. Hail to our Constitutional Law Expert in the Executive Office! “What you’re not paying attention to is the fact that I just took an action to change the law,” Obama said.

  2. What is this, the Ind Supreme Court thinking that there is a separation of powers and limited enumerated powers as delegated by a dusty old document? Such eighteen century thinking, so rare and unwanted by the elites in this modern age. Dictate to us, dictate over us, the massess are chanting! George Soros agrees. Time to change with times Ind Supreme Court, says all President Snows. Rule by executive decree is the new black.

  3. I made the same argument before a commission of the Indiana Supreme Court and then to the fedeal district and federal appellate courts. Fell flat. So very glad to read that some judges still beleive that evidentiary foundations matter.

  4. KUDOS to the Indiana Supreme Court for realizing that some bureacracies need to go to the stake. Recall what RWR said: "No government ever voluntarily reduces itself in size. Government programs, once launched, never disappear. Actually, a government bureau is the nearest thing to eternal life we'll ever see on this earth!" NOW ... what next to this rare and inspiring chopping block? Well, the Commission on Gender and Race (but not religion!?!) is way overdue. And some other Board's could be cut with a positive for State and the reputation of the Indiana judiciary.

  5. During a visit where an informant with police wears audio and video, does the video necessary have to show hand to hand transaction of money and narcotics?

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