Published on:

Florida Supreme Court to Weigh Medical Malpractice Damage Cap on Attorney Fees

The Florida Supreme Court is slated to hear oral arguments today over the state’s claim bill process, and whether lawmakers have the right to undercut personal injury lawyer contingency fee agreements in awarding damages to plaintiffs injured by government entities. 

In Searcy, Denny, Scarola, Barnhart & Shipley v. State of Florida, attorneys are appealing the refusal of the guardianship of the court to authorize $2.5 million in attorney fees to the firms involved in the litigation of a medical malpractice lawsuit. As it now stands, those firms are only collectively slated to receive $100,000.

Of course, we understand that sounds like a great deal of money. However, consider first of all that we’re talking about a catastrophic brain injury that was suffered by a baby in 1997 at a Fort Myers hospital. The family, alleging negligence by the hospital staff, secured legal counsel by entering into a contingency fee agreement that provided for an attorney fee of 40 percent of any recovery of a lawsuit that was filed, plus costs. The case finally went to trial in 2007. Jurors awarded $31 million to the family. But, because Florida law limits damages against government entities, that amount was slashed to just $200,000. The family had to petition legislators to pass a law that would award them damages more in line with their actual losses. Finally, in 2012, a claims bill was passed that directed Lee Memorial Health System to pay $15 million in damages, with $5 million of that payable in annual installments to a special trust for the care of the minor. But the bill stipulated: No more than $100,000 could be paid in attorney’s fees. 

After the first installment of that $10 million was paid, the attorney’s who worked on the case – with the support of the child’s family – asked the court to pay them $2.5 million, based on the 25 percent cap provision set in F.S. 768.28(8). Attorneys noted they had devoted more than 7,000 hours to representing this family at trial, on appeal and during the claims process and had incurred more than $500,000 in costs during the course of this representation.

However, the guardianship court said it lacked jurisdiction to grant attorney’s fees and denied the claim. The attorney’s appealed to Florida’s 4th District Court of Appeal, arguing the court did have the authority separate from the legislature to grant reasonable attorney fees and costs up to the 25 percent limit provided by statute.

The appeals court, while conceding it was sympathetic to the attorney’s situation, disagreed with their legal argument pertaining to separation of power and found the guardianship court did not have the authority to overstep the legislature.

Now, the Florida Supreme Court will be considering this matter.

Our South Florida medical malpractice attorneys understand that some people have little sympathy for injury lawyers. The dark humor cast on the profession is age-old. But here’s the thing: Without the years-long commitment and dedication of their legal team, this family would have been unable to recover any damages at all. Their son was catastrophically injured because the hospital staff was negligent and they deserved compensation. Their attorneys fought for them to get it. We have no doubt they did so in large part because they believed what they were fighting for justice.

But let’s be clear: If our system chooses to severely underpay personal injury lawyers for the work they do, it is not just the lawyers who lose in the end: It is the innocent victims. Corporations and other large institutions will not be held accountable when their negligence results in injury to others because lawyers won’t be able to afford to take cases on a contingency fee basis when there is no chance of being paid fairly at the conclusion of the case.

We’ll be closely watching the developments of this case as it unfolds.

Call Freeman Injury Law — 1-800-561-7777 for a free appointment to discuss your rights. Now serving Orlando, West Palm Beach, Port St. Lucie and Fort Lauderdale.

Additional Resources:

Searcy, Denny, Scarola, Barnhart & Shipley v. State of Florida, July 15, 2016, Florida’s Fourth District Court of Appeal

More Blog Entries:

Grimes v. Family Dollar Stores of Florida – Trip-and-Fall Accident Lawsuit to Proceed, May 30, 2016, Florida Medical Malpractice Lawyer Blog

Contact Information