Rule would limit malpractice fees

first_imgRule would limit malpractice fees May 1, 2005 Managing Editor Regular News Rule would limit malpractice fees Mark D. Killian Managing Editor The Florida Medical Association has directed its attorney to file a petition with the Supreme Court to conform the Rules of Professional Conduct to the provisions set forth in Amendment 3, which limits contingency fees in medical malpractice cases to 30 percent of the first $250,000 awarded, not including costs, and to 10 percent above that.“Some lawyers have suggested that because the amendment is a constitutional provision, the client may waive its requirement and agree to a higher contingent fee than permitted by the amendment,” FMA’s lawyer, Stephen Grimes, wrote in the petition that was also signed by 53 other Florida lawyers that will be filed June 29 with the Supreme Court asking for the rule change. “Such a suggestion would have the lawyer negotiating with the client in order to have the client agree to give up his constitutional right in order that the lawyer may receive a higher fee,” Grimes wrote. “To permit such a practice would not only put the lawyer in an unethical position but fly in the face of the constitutional mandate overwhelmingly approved by the voters of Florida.”Alexander Clem, president of the Academy of Florida Trial Lawyers, said while the petition comes as no surprise, he is unaware of any other instances where citizens are unable to waive a constitutional right.“It gets down to the fundamental freedom of contract issue,” Clem said. “It is a federal constitutional right to contract as that person sees fit and it has always been a client’s privilege to waive rights that are granted to them under. . . federal and state constitutions.“Our position is that if a client chooses to waive his or her rights under Amendment 3, it is their privilege,” Clem said.The petition would amend Rule 4-1.5(f)(4)(b) by the addition of subdivision (iii) as follows:Notwithstanding the preceding provisions of subdivision (B), in medical liability cases, attorney fees shall not exceed the following percentages of all damages received by the claimant, exclusive of reasonable and customary costs, whether received by judgment, settlement, or otherwise, and regardless of the number of defendants:a. Thirty percent (30%) of the first $250,000.b. Ten percent (10%) of all damages in excess of $250,000.Bar rules allow any 50 members in good standing to petition the court for rules amendments, provided the amendments proposed are filed with the Bar at least 90 days before the petition is filed with the court and are published in the News at least 30 days before the petition in filed. (See Notice, page 2.)Grimes said the Florida Medical Association asked him to use the 50 member rule to petition for the change instead of going through the Board of Governors because the FMA feels the amendment “will be pretty contentious within the Bar association itself. . . and probably this would be the best way to get it up or down with the Supreme Court.”last_img

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