Senate Floor Amendment 2 to Illinois House Bill 5151, which passed in the Illinois Senate on January 3, 2013 on a 36-15 vote, would cap attorneys’ fees in medical malpractice cases at one-third of a plaintiff’s award and would bar lawyers from petitioning the court for higher fees in medical malpractice cases. All of the 15 “no” votes in the Illinois Senate were cast by Republicans. House Bill 5151 now heads to the Illinois House of Representatives for consideration, where it will have to be reintroduced during the 98th General Assembly if the House fails to pass it before the lame duck session comes to a close on January 8, 2013.
The current law in Illinois in medical malpractice cases limits attorneys’ fees to one-third of the first $150,000 of a medical malpractice award, 25% of the next $850,000, and 20% of any award more than $1 million. However, lawyers in successful medical malpractice cases can petition the court for higher fees, which requests are regularly made and granted (House Bill 5151 contains provisions to preclude lawyers from seeking more than one-third of an award in medical malpractice cases and permits them to contract with clients for a fee less than one-third of the award).
While trial lawyers support House Bill 5151, the Illinois State Medical Society opposes House Bill 5151, which it describes as a “whopping pay raise bill for plaintiffs’ lawyers” that “comes at the expense of injured patients.” Source
Why does the Illinois State Medical Society oppose House Bill 5151? The Bill’s provisions would have no effect on Illinois physicians whatsoever but may result in a larger number of Illinois medical malpractice victims being able to obtain a medical malpractice lawyer to represent them, which would benefit the victims of Illinois medical malpractice. Inasmuch as the number and total value of medical liability payments made on behalf of physicians declined for the eighth consecutive year in 2011, according to the National Practitioner Data Bank, why does the Illinois State Medical Society feel so strongly about House Bill 5151 that it issued an “urgent alert” for its members to “call your state representative now” to voice their opposition to the Bill?
Caps on attorneys fees that lawyers can charge in medical malpractice cases do not benefit the victims of medical malpractice but have the opposite effect: medical malpractice lawyers will tend to refuse to represent certain medical malpractice claimants that they would otherwise represent if their contingency fee is arbitrarily capped below the market rate without consideration of the difficulty of the case or the amount of time and the attorneys’ advancement of costs that must be expended in order to achieve a successful outcome in medical malpractice cases.
If medical malpractice claimants do not agree to pay the proposed percentage of the contingency fee based on the attorney’s evaluation of the risk that he/she will not obtain a recovery in the medical malpractice case and therefore would have expended many, many hours of attorney time that could have been devoted to more successful endeavors, then the claimants are free to decline the representation and seek another medical malpractice attorney to represent them (the so-called “free market” that our country considers to be so important).
If you may be the victim of medical malpractice in Illinois or in another U.S. state, you should promptly contact an Illinois medical malpractice attorney or a medical malpractice attorney in your state who may agree to represent you in a medical malpractice case.
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