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Birth Injury Legal Fee Limits Still in Effect, Per FL 4th DCA

The attorneys who represented a child severely injured at birth will not be able to receive more than the damage cap put into effect by the state legislature, even though they spent five times that in bringing the case forward.

Beyond just delivering a financial blow to this one law firm, the case could have a stifling effect when it comes to court access. That is, if an attorney knows he or she is going to suffer major losses bringing a case on behalf of severely injured children or other clients, there is less a likelihood those plaintiffs will be able to find representation. That means there is a lesser likelihood there cases will even be filed in the first place, let alone make it to a settlement or trial phase.

It’s disheartening news, especially when you consider that medical malpractice cases such as those brought for birth injuries require meticulous, aggressive and experienced legal representation in order to be successful. Forcing those with the ability to provide this – and ultimately, relief of the enormous financial burden that victims bear – will make it tougher for those who suffer the most to press forward with these cases.

Most personal injury attorneys in Port St. Lucie and elsewhere operate on a contingency fee basis. This means clients do not have to pay anything up front if the attorney agrees to take their case. This is huge because the cost of bringing such a case is often substantial. In addition to the hours put in by the legal team, there are necessary expert witness costs to cover and other investigatory expenses. If injury victims had to pay these expenses up-front, most cases would never be filed.

But most injury lawyers will agree to take the case without pay on the understanding they will only collect a percentage if the case is actually won. And in the case of this birth injury lawsuit, the attorneys did win for their clients.

The child suffered severe personal injuries due to negligence by staffers at a Fort Myers hospital in 1997, the effects of which left the baby (now a teen) with severe permanent brain injuries and other disabilities. He will require lifelong care.

A jury heard the case in 2007 and agreed with plaintiffs that hospital staffers’ negligence caused the boy’s injuries. Further, they awarded the family $31 million.

However, this is a public hospital, and as such, it’s protected by sovereign immunity laws. Those laws cap damages for government negligence at just $200,000.

The only way around this is submission of a claim bill to the Florida state legislature. The family, with the help of their lawyer, did so, despite heavy lobbying against the bill by the hospital, whose attorneys argued passing it would take away critical funds necessary to care for other children.

In 2012, the legislature approved the claims bill – but for less than half of the original verdict. The final amount was reduced to $15 million. However, there was also a provision in this approved piece of legislation that capped attorneys’ fees and costs at $100,000.

The problem is, not only did the attorney contract to take the case on a contingency fee basis for 25 percent (which would have been $2.5 million of the final amount), but the firm spent $500,000 just to win the case. So by representing this family through years-long, complex litigation, the firm stands not only to be paid nothing, but actually to lose $400,000.

In a 2-1 ruling by the 4th DCA, it seems that’s exactly what will happen. The attorneys appealed the constitutionality of the cap, but the court, while “sympathetic” to those arguments, declined to remove the restriction seemingly arbitrarily imposed by lawmakers.

Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights.

Additional Resources:

Court upholds limit on legal fees in birth-injury case, July 15, 2015, By Jim Saunders, The Miami-Herald

More Blog Entries:

FL 4th DCA Finds Non-Economic Damage Caps in Medical Malpractice Litigation Unconstitutional, July 29, 2015, Port St. Lucie Medical Malpractice Attorney

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