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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. So that none are misinformed by my posting wihtout a non de plume here, please allow me to state that I am NOT an Indiana licensed attorney, although I am an Indiana resident approved to practice law and represent clients in Indiana's fed court of Nth Dist and before the 7th circuit. I remain licensed in KS, since 1996, no discipline. This must be clarified since the IN court records will reveal that I did sit for and pass the Indiana bar last February. Yet be not confused by the fact that I was so allowed to be tested .... I am not, to be clear in the service of my duty to be absolutely candid about this, I AM NOT a member of the Indiana bar, and might never be so licensed given my unrepented from errors of thought documented in this opinion, at fn2, which likely supports Mr Smith's initial post in this thread: http://caselaw.findlaw.com/us-7th-circuit/1592921.html

  2. When I served the State of Kansas as Deputy AG over Consumer Protection & Antitrust for four years, supervising 20 special agents and assistant attorneys general (back before the IBLE denied me the right to practice law in Indiana for not having the right stuff and pretty much crushed my legal career) we had a saying around the office: Resist the lure of the ring!!! It was a take off on Tolkiem, the idea that absolute power (I signed investigative subpoenas as a judge would in many other contexts, no need to show probable cause)could corrupt absolutely. We feared that we would overreach constitutional limits if not reminded, over and over, to be mindful to not do so. Our approach in so challenging one another was Madisonian, as the following quotes from the Father of our Constitution reveal: The essence of Government is power; and power, lodged as it must be in human hands, will ever be liable to abuse. We are right to take alarm at the first experiment upon our liberties. I believe there are more instances of the abridgement of freedom of the people by gradual and silent encroachments by those in power than by violent and sudden usurpations. Liberty may be endangered by the abuse of liberty, but also by the abuse of power. All men having power ought to be mistrusted. -- James Madison, Federalist Papers and other sources: http://www.constitution.org/jm/jm_quotes.htm RESIST THE LURE OF THE RING ALL YE WITH POLITICAL OR JUDICIAL POWER!

  3. My dear Mr Smith, I respect your opinions and much enjoy your posts here. We do differ on our view of the benefits and viability of the American Experiment in Ordered Liberty. While I do agree that it could be better, and that your points in criticism are well taken, Utopia does indeed mean nowhere. I think Madison, Jefferson, Adams and company got it about as good as it gets in a fallen post-Enlightenment social order. That said, a constitution only protects the citizens if it is followed. We currently have a bevy of public officials and judicial agents who believe that their subjectivism, their personal ideology, their elitist fears and concerns and cause celebs trump the constitutions of our forefathers. This is most troubling. More to follow in the next post on that subject.

  4. Yep I am not Bryan Brown. Bryan you appear to be a bigger believer in the Constitution than I am. Were I still a big believer then I might be using my real name like you. Personally, I am no longer a fan of secularism. I favor the confessional state. In religious mattes, it seems to me that social diversity is chaos and conflict, while uniformity is order and peace.... secularism has been imposed by America on other nations now by force and that has not exactly worked out very well.... I think the American historical experiment with disestablishmentarianism is withering on the vine before our eyes..... Since I do not know if that is OK for an officially licensed lawyer to say, I keep the nom de plume.

  5. I am compelled to announce that I am not posting under any Smith monikers here. That said, the post below does have a certain ring to it that sounds familiar to me: http://www.catholicnewworld.com/cnwonline/2014/0907/cardinal.aspx

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