Contingency fees may be your best protection against frivolous lawsuits

November 21, 2008
Lee J. Johnson, JD
Lee J. Johnson, JD

The author is a health care attorney who specializes in risk management issues.

Contingency fees are the primary reason for such close scrutiny of extraneous legal issues by plaintiffs' attorneys.

Key Points

In most lawsuits, attorneys are paid an hourly rate or a flat fee, so there is no financial interest in turning away a case; they may even make a case sound more favorable if they think a high fee awaits them.

But contingency fees-payment for a lawyer's services only if the lawsuit is successful or favorably settled out of court-require plaintiffs' attorneys to screen potential suits much more carefully. In this way, contingency fees may be your single best protection against frivolous lawsuits.

Contingency fees are standard in personal-injury cases, of which malpractice is a type. In theory, an injured plaintiff may not have the money to pay the lawyer up front, and every person with a legitimate claim is entitled to his or her day in court.

The first item of interest is the extent of the damages. The more serious the injury, the more lucrative the case. Bad babies, paraplegia, and death of a wage-earner are examples of "big-ticket items."

Plaintiff's attorneys will also evaluate the merits of the case. They are looking for elements of malpractice: duty, breach of the standard of care, damages, and proximate cause. Experienced attorneys can be very astute in determining what constitutes a departure from the standard of care.

Some evaluations of a case have nothing to do with its merit. The sympathy value of the plaintiff, the credibility of the plaintiff and his family, the credibility of the doctor-defendants, the appearance of the medical record, the jurisdiction of the court, the mix of the jury pool, the parties, and the likely insurer and attorney for the prospective defendants are a few of the factors taken into account.

Contingency fees are the primary reason for such close scrutiny of the merits and extraneous legal issues by the plaintiffs' attorneys. They will weigh whether their share of roughly one-third of the potential settlement or judgment is worth the time and out-of-pocket expense. Plaintiffs' attorneys, after all, will not invest their time or risk their reputation unless they believe the case is a winner.

Frivolous lawsuits, which are often filed to harass or extort money from the defendant, can be prevented by the use of contingency fees. On the other hand, countersuing against a frivolous lawsuit-requesting payment of court fees as punishment for wasting your time-may not turn out so favorably.

Claims for frivolous lawsuits are rarely successful because it is difficult to show that the plaintiff and attorney knew the claim had no legal merit. Since malpractice is a matter of opinion, one can always find an opinion that any case has merit-e.g., that there was a departure from the standard of care.

Since malpractice involves an expert opinion-not one that an average juror can understand-a frivolous lawsuit becomes more difficult. In virtually every medical case, there is some issue that an expert could claim was somehow lacking in diagnosis or treatment. Given all the obstacles inherent to counterclaims, they cannot serve as significant protection for doctors or as a deterrent against future claims.

The author is a health-care attorney in Mt. Kisco, New York, specializing in risk-management issues. She can be reached at lj@bestweb.net. Malpractice Consult deals with questions on common professional liability issues. Unfortunately, we cannot offer specific legal advice. If you have a general question or a topic you'd like to see covered here, please send it to memalp@advanstar.com
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