f/k/a archives . . . real opinions & real haiku

February 17, 2004

Ore. Doctors Prescribe Low-Fee Diet for p/i Lawyers

Filed under: pre-06-2006 — David Giacalone @ 9:00 am


The most costly Oregon initiative battle ever is expected this year, as medical doctors seek to limit lawyer fees to $100,000 in medical malpractice cases (plus expenses).  The Oregonian reported on February 13 that the campaign is sponsored by a committee called Oregonians for Quality, Affordable and Reliable Health Care, with funds mostly from doctors and many health care organizations and institutions. 

 

According to the Oregonian and the AP, a lobbyist for the Oregon Trial lawyers Association says it’s confident of victory because



[T]hey don’t expect voters to support the proposal. They point out that a 2000 ballot measure allowing the Legislature to limit the recovery of damages in civil “cases failed, getting only one-quarter of the vote.


“‘It’ll be injured people who will most object to this ballot measure because if you deny people access to the justice system, you can’t compensate them for injuries they received,’ said Alan Tresidder, a lobbyist for the trial lawyers’ group.”


An Oct. 2003 newsletter by the Oregon Associstion of Hospitals and Health Systems says the draft ballot titles are worded as follows:



  • Amends Constitution: Limits contingent attorney fees in healthcare malpractice claims to 20% of first $500,000. Yes vote limits contingent attorney fees in healthcare malpractice actions to 20% of first $500,000 recovered on behalf of an injured patient. No vote retains current law without limits on percentage of contingent attorney fees.


  • Amends Constitution: Limits contingent attorney fees in healthcare malpractice claims to 25% of first $250,000 recovered. Yes vote limits contingent attorney fees in healthcare malpractice actions to 25% of first $250,000 recovered on behalf of an injured patient. No vote retains current law that allows attorneys and clients to negotiate the amount of contingent fees obtained from a malpractice claim.

I’m not sure p/i lawyers should be quite so confident. Not only is the public far more aware of rising health care costs and insurance rates, but a measure to limit lawyer fees to an amount that sounds quite large to much of the populace may be far more popular than one limiting the amount of non-economic damages received by victims of medical malpractice.


I always wince when trial lawyers equate reducing “access to justice” with their receiving lower fees.  What they are saying here is that they are not willing to take cases that might result in less than a $100,000 pay day.  Since p/i lawyers already screen out cases that they do not believe are winners, that refusal to assist injured parties might seem like pure greed to much of the public.



  • One ethicalEsq caveat:  A very small number of cases may indeed require so much lawyer time that $100,000 is inadequate pay — especially if defendants used stalling tactics and the case was extraordinarily complex.  The proponents of this initiative should leave room in such rare cases for the attorneys to petition the court for an additional fee based on quantum meruit, with the losing party footing the excess fees.   

As for the status of the initiative, the Oregonian explained that “Because the initiative would amend the state constitution, organizers will need 100,840 valid signatures by July 2 to put it on the November ballot. The initiative has not been approved for signature-gathering because opponents have challenged the proposed ballot title. The state Supreme Court is reviewing the challenge.”  Stay tuned.

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