Personal Injury Law

Senate Defeats Effort To Limit Access to the Courthouse by Medical Malpractice Victims

By John A. Day

Senator Ensign (R-Nevada) introduced an amendment to limit contingent fees in medical malpractice cases.  The Senator attempted to attached the language to amendment SA 2786 to H.R. 3590, which is intended to amend the Internal Revenue Code of 1986 to modify the first-time homebuyers credit in the case of members of the Armed Forces and certain other Federal employees, and for other purposes.

Senator Ensign's amendment was defeated  by a vote of 32 - 66 (2 Senators did not vote).  Both Tennessee senators voted in favor of the amendment to restrict fees.

The following Democrats voted to limit fees as set forth in the amendment:  Senators Hagan, Warner, Lieberman, Lincoln, and Kohl. The following Republicans voted against the amendment to limit fees:  Senators Bennett, Chambliss, Cochran, Collins, Crapo, Hatch, Johanns, LeMieux, Risch, and Shelby.

Here is the full text of the amendment.

SA 2927. Mr. ENSIGN (for himself and Mr. INHOFE) submitted an amendment to be proposed to amendment SA 2786 proposed by Mr. REID (for himself, Mr. BAUCUS, Mr. DODD, and Mr. HARKIN) to the bill H.R. 3590, to amend the Internal Revenue Code of 1986 to modify the first-time homebuyers credit in the case of members of the Armed Forces and certain other Federal employees, and for other purposes; as follows:

At the appropriate place, insert the following:

SEC. X. LIMITATION ON AMOUNT OF ATTORNEY'S CONTINGENCY FEES.

(a) In General.--An attorney who represents, on a contingency fee basis, a plaintiff in a medical malpractice liability action may not charge, demand, receive, or collect for services rendered in connection with such action (including the resolution of the claim that is the subject of the action under any alternative dispute resolution system) in excess of--

(1) 33 1/3 percent of the first $150,000 of the total amount recovered by judgment or settlement in such action; plus

(2) 25 percent of any amount recovered in excess of the first $150,000 recovered by such judgment or settlement,

unless otherwise determined under State law. Such amount shall be computed after deductions are made for all the expenses associated with the claim other than those attributable to the normal operating expenses of the attorney.

(b) Calculation of Periodic Payments.--In the event that a judgment or settlement includes periodic or future payments of damages, the amount recovered for purposes of calculating the limitation on the contingency fee under subsection (a) may, in the discretion of the court, be based on the cost of the annuity or trust established to make the payments. In any case in which an annuity or trust is not established to make such payments, such amount shall be based on the present value of the payments.

(c) Definitions.--In this section:

(1) CONTINGENCY FEE.--The term ``contingency fee'' means any fee for professional legal services which is, in whole or in part, contingent upon the recovery of any amount of damages, whether through judgment or settlement:

(2) HEALTH CARE PROFESSIONAL.--The term ``health care professional'' means any individual who provides health care services in a State and who is required by the laws or regulations of the State to be licensed or certified by the State to provide such services in the State.

(3) HEALTH CARE PROVIDER.--The term ``health care provider'' means any organization or institution that is engaged in the delivery of health care services in a State and that is required by the laws or regulations of the State to be licensed or certified by the State to engage in the delivery of such services in the State.

(4) MEDICAL MALPRACTICE LIABILITY ACTION.--The term ``medical malpractice liability action'' means a cause of action brought in State or Federal court against a health care provider or health care professional by which the plaintiff alleges a medical malpractice claim.

Full post as published by Day on Torts on December 07, 2009 (boomark / email).