- What is a Contingency Fee?
- What are the costs or expenses associated with the case and who is responsible for paying those?
- Can I pay for representation on my case on an hourly basis?
- What do I have to prove in Medical Negligence Claim?
- Do I have to repay my healthcare insurer for the medical bills they paid?
- What are the steps in evaluating and pursuing a case?
- Who is entitled to bring a Wrongful Death claim?
- What are the time limits for bringing a claim?
A contingency fee is an attorney fee that you will only pay if we recover compensation on your behalf either through settling your case or winning the case at trial. In other words, it is "no win, no fee".
The fee is calculated as a percentage of the gross recovery. Our standard Contingency Fee in medical malpractice case is 40% and in other personal injury cases it is 33%.
By way of example, if we recover $100,000 on your behalf either through settlement or trial, our fee will be $40,000 in a medical negligence case and $33,333 in a personal injury case. If however we do not recover any money for you, you will not owe us a fee for the work we have done on your behalf. The only money you will owe us in that situation is reimbursement of the costs of the case.
There are costs or expenses that we have to pay on your behalf to investigate and pursue your case. They include expenses for obtaining medical records, fees paid to expert witnesses to evaluate your case, court fees and other litigation expenses. These fees will remain your responsibility win or lose the case. Our office will keep you informed as to the amount of these expenses as the case proceeds. We offer payment plans to spread out the costs for you and, in some situations, we may be able to advance the costs on your behalf. We will discuss all options with you at the outset of the case.
Yes. If you prefer that we represent you on an hourly rather than a contingency basis, we will charge an hourly fee for the work we do on you behalf. Depending on the type of case and what we have agreed to do for you, we may require a costs retainer.
If you choose an hourly rather than a contingency arrangement, we will bill you monthly for the work we do on your behalf.
Burden of Proof
In a medical negligence or other personal injury case, the Plaintiff has the "burden of proof". This means that it is up to the Plaintiff (or the injured person) to prove that the defendant was negligent. Unlike a criminal case, where the prosecution must prove the case "beyond a reasonable doubt", in a civil case, the Plaintiff must prove the case only on a "balance of probabilities". This means that the Plaintiff has to prove the case using a "more likely than not" test.
Standard of Care
The Plaintiff (injured person) must prove that the healthcare provider (defendant) failed to meet the "standard of care" for the specialty or profession to which he or she belongs. The standard that the courts apply is that of a reasonably careful or prudent healthcare provider acting in the same or similar circumstances.
Medical negligence cases, other than in exceptional circumstances, can only be proved through the testimony of an expert witness who practices in the same field of medicine as the defendant. For example, if the care in question was provided by an Emergency Room physician, we will generally need to hire an expert who is an Emergency Room physician to provide an opinion as to whether the care provided was outside the applicable standard of care.
Causation
In addition to proving that the care was negligent, the Plaintiff must also prove, on a more likely than not basis, that the negligent care caused the harm complained of. This is known as causation. There are some situations where the care provided was negligent but it did not cause the harm.
We will evaluate the causation aspects of your case with the assistance of experts in relevant medical fields.
We will only recommend that you proceed with a case if we believe that we can prove both negligence and causation..
Damages
A Plaintiff has to prove that he or she has suffered damage caused by the defendant's negligent care.
If damage can be proved, there are two types of "compensation" that a Plaintiff may be entitled to claim. The first is known as "special damages" and these are the expenses or economic losses that result from the negligent care. Such expenses will often include medical expenses, lost wages and, in cases involving more serious injury, the cost of ongoing care, assistance around the home, adaptations to the home and specialist therapies.
The second type of compensation is known as "general damages". This is compensation for the Plaintiff's pain and suffering, disability, emotional suffering and loss of enjoyment of life.
If the injured person was married, their spouse may also have a claim for the losses they have suffered. This is known as a "loss of consortium"claim.
We will work with you and with experts to evaluate your damages claims.
Yes. If some of your medical treatment was required because of the negligent care (rather than the underlying medical condition that took you to the healthcare provider in the first place), and if that care was paid for by Medicare, Medicaid or a health insurance company, they will be entitled to repayment. This is known as a lien or subrogation claim. You will only have to repay the medical expenses if you recover compensation. We will include the medical expenses as part of your claim.
We will work with you and your health insurer or Medicare/Medicaid to reach an agreement as to the appropriate amount to be repaid out of any compensation you receive.
Evaluating the Case
The first step we take in evaluating a medical malpractice case is to speak with you and find out what happened. If, based on that history, we feel that the case should be investigated further, the second stage is for us to request the medical records that will allow us to evaluate whether the care was negligent and, if so, whether the negligent care caused damage or injury.
If, after reviewing the medical records, we still feel that the case has potential merit, we will send the records to experts in appropriate medical fields to provide an opinion as to whether the care was negligent and, if so, whether it caused the injury or damage complained of. If those experts support the case and you have suffered significant damages or injury as a result of the negligent care, we will usually recommend that you proceed with a lawsuit. Often we will recommend that an attempt be made to settle the case before filing the lawsuit.
The Discovery Stage
After we have filed and served the lawsuit on your behalf, we enter what is known as the "discovery"stage of the case.
The court rules allow for the parties to submit written discovery requests to the opposing party.These are questions and/or requests for information or documents relevant to the case.
The rules also allow the parties to take the deposition of the opposing party and other potential witnesses in the case, including family members, treating healthcare providers and, for cases that are proceeding in Washington State, expert witnesses who will testify in the case.
During this phase of the case, we will continue to work with our expert witnesses to develop the various parts of your case. We will also work with the defense attorney to find out if they are interested in discussing a settlement of the case.
Settlement Negotiations
Many cases settle before trial, although of course there are no guarantees. Although cases can settle at any time, the majority of cases that settle do so after the discovery stage of the case and before trial.
We will work with the defense lawyers throughout your case to explore whether the defendant has an interest in settlement. We will work with you to put together a settlement demand. Sometimes we will negotiate directly with the defense attorney on your behalf and sometimes we will work with a mediator to assist in settling the case. It will be your decision whether to accept any money offered by way of settlement. We will advise and assist you throughout this process. We will also help you to understand what net amount you will receive in the event you consider accepting an offer.
Trial
If the case does not settle, we will prepare the case for trial. This will involve putting together the medical records and other documents we will want to refer to at trial, working with the experts who will testify and helping you to understand what to expect at trial. We likely will also want to meet with family members and other friends and coworkers who will testify as witnesses at trial.
As a general rule, you should be present in court throughout the trial. The length of the trial will depend on the complexity of the issues and the number of witnesses who will testify on both sides.
The costs associated with a case will generally increase significantly as we prepare for and proceed to trial. This is because one of the most expensive parts of a medical malpractice case are the expert witness fees. As our experts review depositions and discovery, prepare for their testimony, and thereafter travel to court and testify in the courtroom, the fees increase.
At trial, the Plaintiff presents the case first. We will select a jury, make an opening statement and then present testimony from our witnesses. The defense attorney will have the right to cross examine our witnesses.
The defense will then present their case after which the plaintiff will have the opportunity to present any rebuttal evidence.
At the conclusion of all the evidence, both sides make closing arguments. The jury will then deliberate and decide which party will prevail.
Throughout the case, the Judge presides over and controls the proceedings and rules on evidential issues.
A Wrongful Death claim is brought by the Personal Representative of the estate of the person who has died. Usually the next of kin will apply and be appointed by the court as the Personal Representative. The Personal Representative will bring the claim on behalf of the deceased's estate and on behalf of the "statutory beneficiaries" identified in state statutes.
Typically the "statutory beneficiaries" will include the spouse and any children (including adult children) of the deceased. Under Oregon law, parents of a deceased child (including an adult child) will constitute statutory beneficiaries. In Washington only parents of minor children will have a claim. Dependents of the deceased, even if not within one of the categories stated above, may also have a claim.
Medical Malpractice Washington
The Washington Medical Malpractice statute states that an action for negligence arising out of treatment provided by a healthcare provider:
"shall be commenced within three years of the act or omission alleged to have caused the injury or condition, or one year of the time the patient or his representative discovered or reasonably should have discovered that the injury or condition was caused by said act or omission, whichever period expires later, except that in no event shall an action be commenced more than eight years after said act or omission: PROVIDED, That the time for commencement of an action is tolled upon proof of fraud, intentional concealment, or the presence of a foreign body not intended to have a therapeutic or diagnostic purpose or effect, until the date the patient or the patient's representative has actual knowledge of the act of fraud or concealment, or of the presence of the foreign body; the patient or the patient's representative has one year from the date of the actual knowledge in which to commence a civil action for damages."
As a general rule therefore, a medical malpractice case must be commenced by filing a lawsuit with the appropriate court within three years of the alleged negligent treatment. There are however exceptions to this rule and we will advise you as to when the time limit will likely expire based on the specific facts of your case.
Given that there are time limits however, if you believe that you may have a case, you should proceed with an evaluation sooner rather than later so that you do not run out of time.
Medical Malpractice Oregon
The Oregon Medical Malpractice statute states that:
"An action for injury caused by medical malpractice must be commenced within two years from the date the injury is discovered or in the exercise of reasonable care should have been discovered. Except in cases of fraud or misrepresentation, an action must also be commenced within five years from the date of the treatment or omission."
Oregon's wrongful death statute of limitations applies to actions for death caused by medical malpractice. This requires that an action be brought within three years after the injury causing the death is discovered (or reasonably should have been discovered) by the decedent, his representative, or a beneficiary, but in no case more than three years after the date of death or outside the five-year medical malpractice statute of repose.
Given that there are time limits and the rules can be complicated to apply, if you believe that you may have a case, you should proceed with an evaluation sooner rather than later so that you do not run out of time.
Personal Injury Cases
The time limits within which you must file a personal injury claim will depend on the nature of the case and whether the events giving rise to the lawsuit occurred in Washington or Oregon. If you believe that you may have a case, you should proceed with an evaluation sooner rather than later so that you do not run out of time.