• How Personal Injury Attorneys are Paid
• Medical Malpractice Caps Unfair to Poor
• Exceptions to the Medical Malpractice Cap

This law has been in effect since 1975, and has definitely limited the number of medical malpractice lawsuits filed in the state. Personal injury attorneys, which are generally paid a percentage of their client’s award, and only if they win, are under great pressure to only accept clients with malpractice cases whose facts are “open and shut”, as well as lucrative enough to cover their own expenses. As a result, many victims of injuries can not obtain proper legal representation, as they otherwise would be able to do were these caps not in place.

How Personal Injury Attorneys are Paid
Personal injury attorneys are generally paid on a contingency basis. This equates to a fee that is generally between 25% and 40% of their client’s award. The percentage they are allowed to collect is also limited by state law to no more than 40% of any jugdement or settlement amount. Many personal injury lawyers will charge a smaller percentage on their contingency fee for lawsuits that are settled out of court, prior to going to trial. This reflects the decreased cost attorneys must incur in cases where no trial is necessary. Since contingency fees can not be collected until after an award is made, attorneys must cover most of the expense associated with defending a client until a lawsuit has been completed.

In addition to awards for pain and suffering, which are capped at $250,000, there are additional “actual” damages that can be awarded by a jury during trial. These include expenses that are a direct result of the medical malpractice. These often include Doctor’s bills, hospital bills, medical tests, expert witness fees, copying, filing fees, loss of income due to being unable to work, the loss of additional, potential future income due to personal injury and a number of other personal and sometimes business related expenses.

Although there is no cap on the amount that medical malpractice victims can settle pain and suffering claims for out of court, Doctors and insurance companies rarely settle for an amount greater than the $250K cap, since they know that the victim could not collect any more than that, should the case go to trial.

Medical Malpractice Caps Unfair to the Poor

The cap on medical malpractice awards in California has been criticized for numerous reasons, one of the most compelling arguments being that it is disproportionately unfair to the poor. This is due to the fact that lawyers can often only afford to pursue cases when they include the past and future earning capacity of the malpractice victim. For example, if a 40 year old corporate executive who is paid $300,000 per year is unable to work any longer due to disability that results from a Doctor’s negligence, it can be argued that he will lose $6 million in future earnings (future earnings potential), based upon previously being able to work another 20 years. In this case, the attorney would stand to make as much as $2.4 million in fees, in addition to $100,000 in fees for pain and suffering (under the state cap). However, if a 40 year old janitor making $30,000 year sued for future earnings, the lawyer could only expect to collect a maximum of $340,000 in combined contingency fees. All other facts being equal, most personal injury attorneys would opt to take the case of the wealthy executive, rather than the janitor with a modest income.

Exceptions to the Medical Malpractice Cap in California

Medical malpractice victims can collect more than the $250,000 cap if more than one Doctor, Hospital or other party is involved, and if the cases are separated into different trials. This is rarely the case though, as the costs associated with more than one trial is usually more than a personal injury attorney would want to incur. Ultimately, cases can only be separated if a judge agrees to do so, in addition to at least one of the other parties involved.

An 18 year old girl has filed a lawsuit in San Mateo County Superior Court of California against Nestle USA after being hospitalized with E. coli allegedly contracted from eating uncooked Nestle Toll House cookie dough.

According to her personal injury attorney Bill Marler of Seattle, WA, Jillian J. Collins was hospitalized on May 26th with nausea and abdominal cramps that were later traced to the deadly E. coli bacteria soon after consuming the raw cookie dough.

Nestle USA voluntarily recalled the product after learning of investigations being led by the CDC and FDA into a possible E. coli outbreak linked to the cookie dough. Nestle warns on its packaging that the product is not to be consumed uncooked.

The lawsuit seeks unspecified damages that resulted after the E. coli victim was hospitalized for seven days in May of 2009. The victim is being represented by personal injury attorney Bill Marler of law firm Marler Clark, which specializes in representing victims of E. coli, Salmonella and other food borne illness. Marler had previously filed a lawsuit against Jack in the Box on behalf of a food poisoning victim that was settled in 1993 for $15.6 million in damages.

A copy of the complaint is available on the website of the lawyer representing the victim at http://www.marlerblog.com, which also includes information on other personal injury litigation and news related to foodborne illnesses.

Attorney in Case:
Marler Clark, Attorneys at Law L.L.P., P.S.
6600 Columbia Center
701 Fifth Avenue
Seattle, WA 98104
Phone: 866-770-2032
Website: http://www.marlerclark.com

Free Injury Rights Legal Consultation . Com

California Personal Injury and Medical Malpractice Lawsuit News was created as a resource for both personal injury and medical malpractice victims as well as for attorneys, trial lawyers, investigators, law firms and others interested in researching current litigation in the United States, particularly here in the State of California.

Our main focus will continue to be regularly updated news headlines on personal injury lawsuits, public insurance settlements, historic court cases, Supreme Court rulings, changes in state and federal laws concerning tort (lawsuit) reform, recall information, press releases by law firms representing both plaintiffs and defendants in personal injury litigation and updated warnings about possibly dangerous or defective products that are still available in the marketplace.

We will be adding a number of new sections, including a directory of local attorneys and law offices in California that offer free initial consultations. For the State of California we are compiling regional listings that will cover the following areas: San Francisco (Bay Area), Sacramento, Los Angeles, San Diego, Orange County/Anaheim, Riverside County, Oakland, San Jose, Napa County, Santa Rosa, Redding, Stockton and possibly others.

About Personal Injury Lawsuits

Personal Injury Attorneys and personal injury lawsuits have been in the headlines much in recent years. Unfortunately, much of the news coverage surrounding these cases tends to be negative. The insurance industry seems to be making an attempt to demonize trial lawyers, personal injury attorneys, law firms that specialize in consumer litigation and class action lawsuits as well as the victims of tragic accidents, injuries and even wrongful deaths. Unfortunately, the popular press seems all too eager to play along and, in effect, re-victimize the victims.

About Accident Victim Attorneys

A bad stereotype seems to have been embedded in the public’s mind in recent years about “shady” lawyers that prey upon those involved in accidents, particularly motor vehicle or auto accidents. The stereotypical “ambulance chaser” is represented as a scam artist who races to the scene of car wrecks to seek to represent those who may (or may not) have been injured in an accident. On television, these attorneys always seem to encourage their clients to make-up stories about suffering from whiplash, memory loss, vertigo, post traumatic stress syndrome, mental and psychological issues and other injuries that are almost impossible for real Doctors (even specialists) to prove or disprove. An emphasis seems to be put on collecting large settlements for things like pain and suffering, loss of work, mental and physical therapy, large Doctor and hospital bills, attorney fees, medical tests, etc. While this may make for good TV drama, it is rarely the case that accident victims are able to collect settlements for things like “pain and suffering”. Most are lucky to reach settlements that simply cover their personal medical expenses, which can be enormous.

Without legal representation, victims are often on their own

In realty, attorneys that represent accident victims are often sought as a last resort, when insurance companies refuse to pay for medical service or treatment for injuries suffered from accidents, negligence, unsafe working conditions or those who are injured by unsafe consumer goods.

Without accident victim attorneys, law firms and trial lawyers, these individuals would be practically helpless against the huge insurance carriers, and may wind-up spending the rest of their life suffering physical and emotional pain as well as bankruptcy or financial problems as a result of huge bills from Doctors and hospitals. Lawyers who represent accident victims are often the only victim advocates willing to provide assistance without any up-front costs or attorneys fees.

How Attorneys and Law Firms Work

Unlike with most areas of the law (i.e. criminal cases and most civil cases), attorneys for accident victims generally do not charge any up-front fees for legal services. After an initial consultation (many lawyers provide a free initial consultation), clients are usually asked to sign an agreement for legal representation if an attorney or law firm is willing to accept their case. Generally, these attorneys will work for you on a contingency basis. In other words, the only way they will make money is if your case is settled (in or outside of court). Lawyers receive a portion, or percentage, of the settlement value or the amount of money awarded to them by the court after a court trial. Contingency fees are generally around 40% of what is actually collected. Attorneys only receive this money AFTER you are paid. If you lose the case, your law firm will collect nothing, so it is very important to them that you case is legitimate and can be proven beyond a reasonable doubt in a civil court case or tort.

In order for a lawsuit to be successful, victims must prove their real and financial injuries beyond a reasonable doubt in a court of law. They must first provide some type of evidence of the defendant’s responsibility in the case. They must also prove that their physical or mental injuries are legitimate. This often comes in the way of results from medical tests, testimony by a qualified physician who is a specialist in the area that treats injuries that the victim has and lastly prove any actual financial damages that resulted from the injury. The largest source of financial damages is in the form of bills for medical treatment, attorney fees, filing fees and loss of work or employment due to temporary or permanent disability. Only after a victim has met the burden of proof for all of these areas will damages for pain and suffering be considered by the judge or jury in a court case.

If an attorney accepts your case, they are taking a chance of losing a significant amount of time and money if they do not settle or win your court case. The attorney’s law firm usually must pay for filing fees, medical testing for evidence, appointments with specialists to establish your case, expert testimony by Doctors, physicians, therapists and others qualified to give sworn testimony or depositions to the court. This is on top of the administrative costs that their legal offices must provide. These include issuing subpoenas, paralegal services, requesting discovery, motions, depositions, travel, private investigators, the usual overhead of running a law practice, secretaries and much more. Obviously, a good attorney will not take your case if they feel that they can not prove real, monetary damages. If you lose your case, they will be forced to absorb all of these expenses without any compensation. Therefore, you must be able to produce legitimate and provable evidence before an attorney will take your case seriously.

Most attorneys prefer settlements to expensive trials

The Insurance Companies

In most cases, the actual opposing party will not be the individual or business that allegedly caused the injury, but their insurance carrier. These insurance companies often employ in-house counsel or contract the work to a dedicated attorney or law office that is hired to represent them for your particular case. The job of their counsel is to provide you with as little (or no) of the insurance company’s money as possible. They do not work on contingency fee. Rather, they are generally paid an hourly wage or contract rate to compensate them for their time and effort. These lawyers get paid, regardless of whether the case is settled, goes to trial or the case is simply dismissed by the court or the victim decides to drop the lawsuit.

Settling vs. Going To Court

Only a small percentage of personal injury cases ever result in a court trial. The vast majority of these potential lawsuits are settled out of court through private agreements prior to any court appearance. Negotiations that result in a cash settlement are generally in the interest of all parties involved. It will save the accident victim time by getting their money to them sooner. An injury rights attorney will also get paid sooner. In addition, they will incur much less out-of-pocket expenses when settling. The insurance companies usually settle for much less money than they would stand to lose in a court case and save an enormous amount on attorney fees. If the insurance company suspects insurance fraud or feels that there is a good chance that a lawsuit would be dismissed, they will usually refuse to settle for any amount. This is to discourage fraud by compensating individuals making false accusations as well as lawyers who might represent those whose injuries are not legitimate. Unless the amount of money offered by an insurance company is ridiculously inadequate, a lawyer will usually advise their client to settle.

Exposure to asbestos often leads to a rare disease called mesothelioma

Common Lawsuits Today

In a world that has an ever-increasing amount of litigation, certain types of cases seem to stand out these days. Generally speaking, law firms tend to go after cases that have the highest chance of success as well as the largest settlement or judgment possible. At the moment, the most lucrative lawsuits for lawyers tend to be the following:

Exposure to hazardous materials such as asbestos in the workplace has lead to a number of lawsuits.

Here are some links to popular legal websites.

Find California Code – Use this page to look up civil and criminal statutes in the State of California.

California Findlaw.

Lawyers.Com – Website for referral to an attorney or lawyer in the State of California.

California State Bar Association