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Possible New Rules for Illinois Medical Malpractice Contingency Fees

Contingency fees are a critical part of the civil justice system, used frequently on many personal injury cases and medical malpractice matters. The basic idea is that it is manifestly unjust for someone injured by the misconduct of another to be prohibited from seeking accountability because of their inability to pay up-front legal costs to bring the case. After all, the very reason that many lawsuits are filed is because of the precarious financial situation some are placed in after an accident. Life savings are often drained to pay for medical and other costs, and the injury often makes work impossible. It makes little sense to allow the wrongdoer to avoid accountability so long as they harm someone of less means.

That is where contingency fees come into play. The basic idea is that attorneys agree to bear the risk of the uncertain legal outcome and take a share of the award (settlement or verdict) only after it is received by the plaintiff. If no damages are received then the plaintiff is no worse off and the lawyer bears the loss of time and expenses paid up to that point. Overall, it is a common sense solution to ensure that everyone has access to justice no matter what their financial situation.

New Illinois Med Mal Contingency Law
Contingency fee practices for Chicago medical malpractice attorneys are governed by various rules including the Code of Civil Procedure and the Illinois Supreme Court Rules of Professional Conduct. These guidelines lay out many of the “Dos” and “Dont’s” of contingency fee arrangements. For example, attorneys cannot take on a criminal case on a contingency fee basis, because there is no possibility of financial recovery. Similarly, contingency arrangement in divorce matters are not allowed for similar reasons and because of the public policy interest in preserving marriage.

The rules also provide guidelines regarding how much a portion of an award an attorney may take. This usually hinges on the type of case at issue–anything from worker’s compensation matters to medical malpractice–as well as the amount of time and effort put in by the attorney before the final resolution. Some cases may be settled very quickly after the filing of the suit, while other may require a long and tedious discovery process with a settlement reached just before trial. These differences may affect the actual percentage of the final award that the attorney receives for his or her work.

Lawmakers sometimes tweak those rules. In fact, one proposal introduced this week on the Illinois General Assembly Senate floor (HB5151) does just that. The measure amends the Illinois Code of Civil Procedure to cap contingency fees for Illinois medical malpractice cases at 33.33% of all sums recovered. In the past a less wieldy determination was used which provided different fee levels based on the total amount recovered, with tiered percentages for the first $150,000 obtained, a lower percentage for the next $850,000, and even lower for any subsequent award. The newly proposed system is much more straightforward and transparent.

A full text of the bill can be found here. According to the information on the ILGA website, the Senate finally took action this week during it’s “lame duck” session, passing the bill on a full floor vote on a 36-15 vote. The House is set to vote on the matter next week. If it passes, the measure would be sent to the Governor who could make it law with his signature.

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