Limits on Malpractice Fees Around the Country

malpractice fee capsIn recent years, we have been picking up more malpractice cases — primarily birth injury cases — in jurisdictions outside of Maryland and D.C.  We have handled claims close to home like Pennsylvania and West Virginia and we have also handled (and settled) cases as far away as Oregon.

To do this, we needed to get up to speed on the basics of malpractice calls in that jurisdiction.  Not so much to handle the case — we have local counsel for that — but to screen the case to evaluate whether it is a viable claim to bring.   It is important, of course, to know if the state has caps on malpractice cases and we have done that research.

But, honestly, you also need to know whether there are significant caps on attorneys’ fees because it has a real impact.  Taking a birth injury case in New York, for example, is a very tough play economically because you are only getting 10% of everything over $1 million.

We did the research not for a blog post but for our internal use.  But I thought it would be helpful to give you a head start in your research.  You should verify all of these, of course, and I tried to link to the statute to help you out.

State Attorneys’ Fees
California Sliding scale fees may not exceed 40% of the $50,000, 1/3 of the next $50,000, 25% of the next $500,000, and 15% of damages exceeding $600,000. (Bus. & Prof. §6146)  California, of all states, makes it difficult for plaintiffs both with caps and attorneys’ fees.  It is no surprise that malpractice is rampant there.
Connecticut Sliding scale fees may not exceed: one third of first $300,000; 25% of next $300,000; 20% of the next $300,000; 15% of the next $300,000; and 10% of damages exceeding $1.2 million. (CGS §52.251c)
Delaware Sliding scale fees may not exceed: 35% of first $100,000; 25% of next $100,000; and 10% of damages exceeding $200,000. (Del. Code Ann Tit. 18 §. 6865)
Florida Separate sliding scales for cases settling before filing an answer or appointing an arbitrator, cases settling before or after going to trial, and cases in which liability is admitted and only damages contested; Florida kicks in 5% extra for cases appealed. (Atty. Conduct Reg. 4-1.5(f)(40(b))
Illinois Sliding scale fees may not exceed one-third of all sums recovered. (Ill. Comp. Stat. Ann. § 110.2.1114) The attorney may apply to the court for additional compensation under certain circumstances. (§ 735.5/2.11 4)
Indiana If before July 1, 2017, plaintiffs’ attorney fees may not exceed 15% of any award that is made from Patient’s Compensation Fund (covers portion of an award that exceeds $100,000). If after June 30, 2017, 32%. (Ind Code Ann. §16.9(5).51)
Maine Sliding scale fees may not be higher than one-third of the first $100,000; 25% of the next $100,000, and 20% of damages that exceed $200,000; for purpose of the rule, future damages are to be reduced to lump-sum value. (Me.Rev.Stat.Ann§24.2961)
Massachusetts Sliding scale fees may not exceed 40% of first $150,000, 33.33% of next $150,000, 30% of next $200,000 and 25% of damages that exceed $500,000; further limits if claimants recovery insufficient to pay medical expenses. (Mass. Ann. Laws Chap.231. § 60I)
Michigan The maximum contingency fee for a personal injury action is one-third of the amount recovered. (Mich. Court Rules 8.121(b))
New Jersey Sliding scale fees may not exceed one third of first $750,000, 30% of second $750,000, 25% of third $750,000 and 20% of forth $750,000; and amounts the court approves for damages that exceed $2,000,000; 25% cap for a minor or an incompetent plaintiff for a pretrial statement. (Court Rules §1:21-7)
New York Sliding scale fees may not exceed 30% of first $250,000, 25% of second $250,000, 20% of next $500,000, 15% of next $250,000, and 10% over $1.25 million. (N.Y. Jud. §474-a) The court may allow higher fees upon application of the claimant or his attorney. But lawyers can’t rely on this expectation.
Oklahoma The fee may not exceed 50% of the net judgment. (§5.7)
Tennessee Attorneys’ fees may not exceed one-third of recovery. (Tenn. Code Ann. § 29-26-120)
Utah The contingency fee may not exceed a third of the award. (§78B.3.7.411)
Wisconsin Malpractice fees are on a sliding scale may not exceed one-third of first million or 25% of the first $1 million recovered if liability is stipulated within 180 days, and not later than 60 days before the first day of trial, and 20% of any amount exceeding $1 million. In special cases, the court may approve a higher fee. (§655.013)
Wyoming If recovery is $1 million or less; one-third if claim settled within 60 days after filing, or 40% if settled after 60 days or if a judgment is entered; if over $1 million, 30%. However, parties may agree to pay more. (Ct. Rules, Contingent Fees R. 5)


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