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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. I work with some older lawyers in the 70s, 80s, and they are sharp as tacks compared to the foggy minded, undisciplined, inexperienced, listless & aimless "youths" being churned out by the diploma mill law schools by the tens of thousands. A client is generally lucky to land a lawyer who has decided to stay in practice a long time. Young people shouldn't kid themselves. Experience is golden especially in something like law. When you start out as a new lawyer you are about as powerful as a babe in the cradle. Whereas the silver halo of age usually crowns someone who can strike like thunder.

  2. YES I WENT THROUGH THIS BEFORE IN A DIFFERENT SITUATION WITH MY YOUNGEST SON PEOPLE NEED TO LEAVE US ALONE WITH DCS IF WE ARE NOT HURTING OR NEGLECT OUR CHILDREN WHY ARE THEY EVEN CALLED OUT AND THE PEOPLE MAKING FALSE REPORTS NEED TO GO TO JAIL AND HAVE A CLASS D FELONY ON THERE RECORD TO SEE HOW IT FEELS. I WENT THREW ALOT WHEN HE WAS TAKEN WHAT ELSE DOES THESE SCHOOL WANT ME TO SERVE 25 YEARS TO LIFE ON LIES THERE TELLING OR EVEN LE SAME THING LIED TO THE COUNTY PROSECUTOR JUST SO I WOULD GET ARRESTED AND GET TIME HE THOUGHT AND IT TURNED OUT I DID WHAT I HAD TO DO NOT PROUD OF WHAT HAPPEN AND SHOULD KNOW ABOUT SEEKING MEDICAL ATTENTION FOR MY CHILD I AM DISABLED AND SICK OF GETTING TREATED BADLY HOW WOULD THEY LIKE IT IF I CALLED APS ON THEM FOR A CHANGE THEN THEY CAN COME AND ARREST THEM RIGHT OUT OF THE SCHOOL. NOW WE ARE HOMELESS AND THE CHILDREN ARE STAYING WITH A RELATIVE AND GUARDIAN AND THE SCHOOL WON'T LET THEM GO TO SCHOOL THERE BUT WANT THEM TO GO TO SCHOOL WHERE BULLYING IS ALLOWED REAL SMART THINKING ON A SCHOOL STAFF.

  3. Family court judges never fail to surprise me with their irrational thinking. First of all any man who abuses his wife is not fit to be a parent. A man who can't control his anger should not be allowed around his child unsupervised period. Just because he's never been convicted of abusing his child doesn't mean he won't and maybe he hasn't but a man that has such poor judgement and control is not fit to parent without oversight - only a moron would think otherwise. Secondly, why should the mother have to pay? He's the one who made the poor decisions to abuse and he should be the one to pay the price - monetarily and otherwise. Yes it's sad that the little girl may be deprived of her father, but really what kind of father is he - the one that abuses her mother the one that can't even step up and do what's necessary on his own instead the abused mother is to pay for him???? What is this Judge thinking? Another example of how this world rewards bad behavior and punishes those who do right. Way to go Judge - NOT.

  4. Right on. Legalize it. We can take billions away from the drug cartels and help reduce violence in central America and more unwanted illegal immigration all in one fell swoop. cut taxes on the savings from needless incarcerations. On and stop eroding our fourth amendment freedom or whatever's left of it.

  5. "...a switch from crop production to hog production "does not constitute a significant change."??? REALLY?!?! Any judge that cannot see a significant difference between a plant and an animal needs to find another line of work.

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