February 13, 2013

Setting the Record Straight on Illinois Med Mal Fee Law

by Levin & Perconti

Last month we shared information on a new law that passed through both chambers of the Illinois General Assembly and was signed by the Governor. The law includes a few components, but one of them simplifies the contingency fee rules as they apply to Illinois medical malpractice lawyers. Before the new law took effect there was a tiered system upon which fees could be received in these cases, with a larger percentage for lower dollar amounts and a shrinking percentage for higher awards. Now, however, contingency fee rules in these matters are straightforward and treated like all cases. Attorneys can ask for one third of a settlement amount or award

Smearing the Situation
Expectedly, after the passage of the law, chronic defendants in medical malpractice cases and their allies used it as an excuse to again criticize the legal system itself as it applies to these cases. Others misunderstood the legislation as some underhanded scheme to sneak through a law that only benefitted attorneys and allowed them to collect more money. These characterizations are false.

Recently, the presidents of the Illinois Trial Lawyers Association sent a Letter to the Editor which was published in a weekend edition of the Chicago Tribune. He explained how, far from the misguided characterization from the medical lobby, this latest bill was a bipartisan matter had been discussed for years and may actually result in easing the burden on the legal system while helping patients. Far from the claims that this bill simply funnels more money to attorneys, the reality is it simplifies the fee system and prevents arguing over the rate after a settlement or judgment.

Specifically, the letter points out one aspect of the law that has been glossed over--it eliminates an attorney’s right to go back to court to petition for higher fees. Before this measure, many legal cases dragged on even after an agreement, because the lawyer went back to the court to ask for a larger percentage of the award based on specific factors in the case. This new law eliminates that option--creating a set maximum equal to that in all other cases. By making it logical, straightforward, and without room for petitioning, the fee process will be far easier to handle after passage of this law.

Even medical providers and defendants in these cases stand to save money. In the past, the attorneys for the defendants would need to attend and prepare for hearings related to petitions for higher fees. Now that those petitions are not allowed, defendants will be spared the expense of paying their own attorneys to participate in the process.

Considering the dual benefit to this law, it should not be surprising that there was bipartisan support to pass it. In today’s polarized environment, very few bills ever receive support from members of both parties--this bill did. The Republican leader of the state Senate, for example, even joined with many Democratic members in that body to support this measure.

See Other Blog Posts:

Legal Rights of Employees Who Report Fraud in Hospitals

Most Common Radiology Malpractice Suits