United Brachial Plexus Network, Inc.

Hello,
My daughter is having primary surgerynext month. We were advised by the surgeon to get representation. I contacted a couple attorney in the state that handle these type of cases. My question is this the attorney were looking at charges 40% plus cost. Is this standard? does anyone have any expierence with the legal side and what fees are approiate.

Thank you,
George

Hi and Welcome George,
It would be helpful to know what state you live in. 40% sounds a little high, but it depends where you live. Also, most attorneys will not charge you for costs even if you lose the case. Having gone through the process, I would definitely focus on the attorney's experience with Erb's cases. It seems to me that more and more Erb's cases go to trial nowadays. Although having an attorney with trial experience might be good, having experience in handling (and having success with) Erb's cases would be better. No attorney in his/her right mind will guarantee you a specific result nor should they, but a good track record wouldn't hurt. That alone might be worth the higher fee.

Here to help in any way I can.

Hi Ben's Dad,
i would like to have some info. regarding attorneys in NY if you could please be in touch via e-mail ysgybb@sbcglobal.net

Thank You

Solomon

The Outreach news letter has some lawyers listed in it I believe in the front as firms that have contributed to Out Reach We used Carol Forte she practices in NJ, Ny and many other states and we were very pleased with her she has done many bpi cases and is an excellent lawyer, you should interview several and ask for referrals from other parents that's what I did saw 7 before finding Carol. Hope this helps Mare

Thank you for your response. We Live in central Florida. I just want to do right by my Daughter. She will have probably have medical needs for the rest of her life. Forty percent plus expenses just seems high, but the attorney seems very experienced.

HELLO,
I THINK THATS TOO HIGH AS WELL. I WOULD CALL AROUND AND SPEAK WITH OTHERS.
KATHY

There are a few ways to find a reputable attorney.

The first is to contact your local Bar Association. You can find their number in the phone book. When you call, tell the receptionist that you need a referral for a medical malpractice attorney. They will probably give you a few names. You should call a number of lawyers and interview them. No one should ask you to sign anything at the initial meeting. If YOU want to sign on with them, then ask for the paperwork to do so. Additionally, no lawyer should ask you for money up front. This is a gamble for the medmal attorney. If you win or settle, they get money. If you lose, they don't. Also, check with the Bar Association and ask what the standard rates (percentages) for medmal in your state is. Here in NY we have a graduated system--it was put in place to encourage lawyers to settle their cases for lower amounts. They get a higher percentage for a lower dollar amount. Of course, this also assumed that no lawyer can do math....
Most states have a 30-35% rate...

The second way to get a lawyer is to ask for referrals from people who have (unfortunately) had to sue a doctor or hospital. In this case, you have someone's personal opinion of the lawyer and the law firm. However, and this is a biggie: EVEN IF THEY WERE SUCCESSFUL, IT DOES NOT GUARANTEE THAT YOUR CASE WILL BE. Past success is just one measure of a good lawyer.

You should ask if they have BPI experience. Did they win, lose or settle? How many cases have they handled? If I call do I speak to you (the lawyer) or an associate? Or both? Does the lawfirm have medical staff as part of the firm? And definately gauge how you feel about this attorney. It can take years to make your way thru a medmal lawsuit...is this someone you want to deal with for the next 3-5 years? Unlike doctors...you can't just change the lawyer because you don't like him anymore.

I also believe that you should have a more local attorney. And this is a personal opinion. Local attorneys know the judges, know how the juries run, know what other cases like yours have done, etc. Plus, it is far easier to meet with your lawyer if he/she is local. And by local I don't mean just some guy in town. I live on Long Island, NY. It is a big place. We started out with a local LI attorney. Though he had 50 years experience as a medmal attorney, he had never tried a bpi case. We trusted him, however. About a month into our case he called me and asked me to come to his office. He had another lawyer there. He was from one of the most successful NY City lawfirms. I really didn't want to the "City Firms" as they tend to be a little impersonal. This other attorney was hand picked by my guy and my attorney encouraged me to sign him on. Which I did. I am certain my original attorney would have done a great job, but the one we went with was amazing. He had tried enough cases in our county to know people, and it helped. He wasn't the "new guy" or the "out of towner". He was someone who had been there before. Again, this is my experience.

if you have any questions, you can email me directly.

good luck,
claudia

Hi George,

Most states by law control legal fees in cases that concern children. In Florida, legal fees for cases involving minors are often limited to 25%.

Concerning how to find an attorney, I do agree with several of the people that posted notes. It is most important though that the lawyer have experience in brachial plexus cases. The law and medicine for brachial plexus cases is evolving daily as physicians write more articles and literature aimed at providng defense to their malpractice. Much of the recent literature is focused on reasons how a brachial plexus injury can happen without shoulder dystocia. The literature is not well founded in medicine, and is is many respects untruthful, but has been used at trial by the defense to suggest that the injury was not the result of excessive traction. I have been able to file motions at the past several trials to keep this literature away from juries becuase it is unreliable, but an attorney not experieneced in brachial plexus cases may not know to do so.

Lawyers from out of town can easily learn the local rules and customs, but experience in brachial plexus cases, and knowledge of the medicine takes time.

You can also check the frequenty asked questions section of the UBPN site for more information about how to find an attorney.

Good luck with your search.

Ken Levine

Thank you for all the information. So if I understand it correctly, even if I sign a contract the judge will reduce the attorney's fee.
The man seems very bright. In my opinion he new more than some of our doctors. The part that I stuck on is fee's, i have never been in this situation before. His fee's are as follow.

If settled before lawsuit is filed, or before demand for arbitrators.
33 1/3% up to 1 mil. plus
30% between 1-2 mil.
20% over 2 mil.

If settlement is achieved or recovery obtained from the time of a filing of an answer or the demand for appointment of arbitrators through entry of judgement.
40% up to 1 mil. plus
30% between 1-2 mil.
20% over 2 mil.

If all defendants admit liability at he time of filing of their answers and request a trial only on damages.
33 1/3% up to 1 mil. plus.
20% between 1-2 mil
15% over 2 mil.

Does he sound unreasonable? Any help appreciated.

Sidney's dad:
It doesn't sound out of line, but I would still double check that 40%. Call either the Bar Association or another attorney (you should do that anyway) and see what their fee structure is.

Don't feel pressured to sign up instantly. If you are doing primary surgery, then your daughter is still young. Check with a couple other attorneys.

Plus, the day after surgery, go to the medical records office in the hospital and fill out the form (and pay the fee) to get your daughter's surgical/hospital records sent to you. If they won't send them to you (and some are loathe to do so) or if they will send them to you AND a doctor only, put down your pediatrician or local ped neuro in addition to your name. It is easier to do this while you are there, rather than over the phone or by mail. You will need this for your lawsuit. Don't worry, any lawyer you use will subpoena a copy anyway, but it is good to have in YOUR hands.

Good luck with the surgery,
claudia