Medical Malpractice: Why Finding the Right Lawyer is Becoming Increasingly Difficult
Although there are countless advertisements in Miami for lawyers on billboards, bus benches, and on every TV channel imaginable, it’s becoming increasingly difficult to find the best lawyer for your needs. This is especially true considering you wouldn’t necessarily look for a lawyer until the need arises.
We constantly get calls from clients who have already hired a personal injury law firm in Florida but are unhappy with the experience thus far. Many need to know how to change attorneys and when (and if) the time is right to do so. Similar to doctors who can have poor “bedside manner,” there are lawyers who fail to meet their client’s expectations.
From the beginning of the relationship, we work to maintain expectations by communicating how the claims process works, the amount of time a typical case will take and when we could expect the case to be resolved. It’s important to establish these expectations and then manage them throughout the term of litigation. If we are ever unable to meet our client’s expectations for whatever circumstance or reason, we urge them to seek the additional opinions of another lawyer. No matter what, we believe, the client must feel as though they are in the hands of a lawyer who believes in their case and that they can trust.
Almost every personal injury lawyer in Florida works one what’s called a contingency basis. This means they only get paid if a case concludes; and only IF it concludes. Guidelines mandated by the Florida Bar dictating how a Florida personal injury lawyer works in this manner are very specific. The most important factor is to understand the difference between the case costs (filing fees, depositions, experts and exhibits) and a contingency fee (work done by the lawyer).
In Florida medical malpractice cases, lawyers who represent the injured patient and their family are limited by Article 1, Section 25 of the Florida Constitution in the amount of their contingency fee. The Amendment was designed to discourage many of Florida’s best medical malpractice lawyers from suing hospitals and doctors. In fact, Florida’s Constitution mandates that the patient’s lawyer cannot charge more than 30% of the first $250,000 and 90% of all damages over $250,000 excluding costs. This means that many malpractice lawyers in Florida cannot afford to take complex medical malpractice cases against hospitals and doctors based on the Constitutional limitation. There is, interestingly, no limit on the amount of money that a defendant doctor, hospital or urgent care center can pay their lawyers to defend them.
To find a way around this unfair attempt to keep injured patients from receiving the best representation, many medical malpractice law firms in Florida will advise their clients of their right to waive the fee limit. Clients have the rights both to discuss the waiver with another lawyer or can even ask a judge to explain it.
These fee waivers must contain the following information:
• You understand that signing the waiver releases an important constitutional right.
• You were advised that you could speak to a separate and independent attorney before you signed.
• You may ask to have a hearing before a judge to explain the waiver.
• You have selected the lawyer.
• You would not be able to hire the attorney unless you waived your constitutional right.
Two of the other more common types of legal fees permitted in Florida are fixed fees and hourly fees. Fixed fees are usually applied in situations where the legal work required is very simple – such as drafting a will, setting up an Estate or in a typical real estate transaction. Our personal injury lawyers commonly work with outside law firms on a fixed fee when we have to create a guardianship for the settlement of a child’s injury case or an Estate for a wrongful death case.
On the other hand, an hourly charge is where a lawyer or law firm bills a client for the amount of time spent handling a particular matter. These lawyers sometimes will bill down to the minute for any work, including time spent literally thinking about the client’s case. Most of the doctors, hospitals and insurance companies we sue are represented by lawyers who charge an hourly rate.
Often, I believe there is an inherent conflict of interest when, for example, we have sued an uninsured plastic surgeon who is represented by a lawyer charging by the hour. The doctor may want to resolve the claim, but the lawyer wants the case to continue. It can be a cruel irony for many surgeons who only get paid by the patients they cut, rather than the ones they refuse to operate on.