United Brachial Plexus Network, Inc.

I realize this topic is not new...but here goes...How do I decide whether a lawsuit is worth going through all the years of anguish? I have been debating for months about whether to go ahead and it's torturing me to be on the fence. I just want to decide one way or the other and be okay with it. I know I have a case that's worth pursuing (as far as my records showing a c-section should have been done) but my child's injury was relatively minor. So I don't know whether it's worth it to go through all the agony of a lawsuit, only to end up losing (high percentage of these cases lose, esp.in our state) or with a small amount (because the injury is not severe). I know it's personal and only I can make the decision in the end, but I'd still like your opinions.

Also, I read Francine's legal page and saw that lawyers typically get a third of the money. We consulted a reputable firm (experience with BPI cases) who takes 40%. This seemed like a lot. I realize everything in life is negotiable, but is it likely? What's it it for them to reduce their take (besides $ if they take the case and win) and how likely is it that they would)? Does that amount tend to vary by the state you are in (and what the trend of medical malpractice cases verdicts are) or is it solely firm-specific? Also, isn't it more important to choose an experienced firm that takes more money than one that has less experience but might be less likely to win?

We live in MA. Thank you.

Going through legal channels is a very personal decision. If you feel you have a case most lawyers will look at your information and advise you of if you have a case or not.

I do know that now in PA attorneys can only take 25% plus fees from minors. Our attorney was very well versed in bpi and I think it was to our advangate.

Cindy

Look at it this way: even if the amount you stand to win is minimal, it will be a moral victory for your child. If you lose the case, at least you tried. If you have no case, at least you will never feel guilty for having found that out. What do you have to lose by consulting an attorney?

As far as attorneys' fees, it really varies. Many want 40%. That's not unusual, although it may seem high to us! But anything above 50% is unconscionable (according to my attorney husband). But some attorneys will want you to pay upfront costs - others will pay to take the case to court (assuming the risk themselves), and you lose nothing if they lose the case. If you win, of course, you'll have to pay their cut plus fees. You have to consult different firms/attorneys to know what's what, and READ the contracts they want you to sign. The advantage of going with a firm is a firm is more likely to pay those upfront costs. But some of them are big-time scumbag sharks. Personal recommendations are a good way to go when you're trying to select a lawyer.

Judging from the tone of your posting, I say pursue it. If an attorney then says you have no case, then you'll be at peace instead of on the fence.

You also have to find out if there are state laws regarding medmal fees. In NY state there are. We have a sliding scale of fees based on the amount won.

Call your local Bar Association and ask for some referrals to med mal attorneys. Meet with them and ask their fee schedule and ask if they have experience with bpi cases.

There are many things that go into making the decision to sue. One is if medical malpractice really occurred. Another is the level of damage. I know in OUR minds it shouldn't have anything to do with it, but it does--from a legal standpoint.

We settled our case this past summer. We were very pleased with our settlement and with our attorneys. It took us about 3 months to decide to sue and we were finished with the lawsuit in 3 1/2 years. Mind you, much of that time there was NOTHING going on. You just have to wait your turn! Also, our daughter had primary at 4 1/2 months, as she had no function at that time.

Gee, I didn't really help did I? Well, this is really a call you have to make. But I really recommend finding a few lawyers and interviewing them.

claudia

Personally I feel it is VERY worthwhile to pursue litigation. Our children were injured for the rest of their lives. They will incur many medical bills, therapy bills, possible lost wages, difficulty finding affordable healthcare coverage later due to preexisting condition, etc., etc. And with this injury you never ever really know what future issues may arise and what surgeries or treatment may be required even 20 years from now. We also never know if we as parents will financially always be employed, healthy, alive, etc. and able to help our child to the true extent that they really deserve.

I believe most of these injuries are due to complete negligence and the child's future needs should be taken care of by the insurance company of those who are fully responsible for this unnecessary injury.

Our legal journey has been rougher than many others and trust me, I have asked myself on more than one occasion if all of this anguish was really worth it, but then I would remind myself that I was doing this for my child. Enduring the sometimes harsh treatment at depositions and all the lies could make you lose your mind, and feeling like the fight goes on and on can get exhausting at times, but in the end I believe it is a fight well worth fighting for your child.

If you can find an attorney than you may have a good chance at a settlement. Good lawyers know which cases to take and they won't risk it unless they think your case is strong. This doesn't mean that because 1 or 2 lawyers turn you down, that the 6th one won't pick up your case, so don't give up.

Another thing that I personally feel is important to consider, is how many of these darn doctors get away with negligence and only continue to do so. It is unfortunate, but the legal system is really the only way to hold them somewhat accountable. I believe after a suit or two, doctors may be a little more inclined to get some training and education regarding risk factors, appropriate maneuvers, etc. If they are not held responsible on some level than I think they will be even more likely to injure a future child.

The bottom line for me was realizing that I was doing this for my child and for the sake of justice. If I was wanting my life to be emotionally less stressful I probably would have given up, but I am so very glad that we did not.

Good luck to you on making the decisions that feel right for you and your child. It can be very difficult but in time you will know what you need to do, one way or the other.

Keep the questions coming. Everyone here is always so very helpful and I have learned so much from all the different perspectives.

Sorry but I forgot to answer your question regarding the % lawyers take. Some states have caps like 25% is the max the lawyers can take. Other lawyers within the same state tend to vary between 30-40%, with the majority seeming to come in around 33 1/3% (for whatever reason).

I don't see why you could not try to negogiate. 40% is high to me and when you calculate the numbers, that 7-10% extra could be a lot of money taken from your child. Our contract stated 40% but we were kind of in a bind so we agreed. We wanted to try to get them to lower their fees and decided that settlement time may be the perfect opportunity. So during settlement offers we held our guns on the minimum amount we wanted for our child and instead of broaching the % topic and asking them to lower it, my spouse and I decided to not agree to anything less than a certain amount during settlements. We figured if we held our ground that they may suddenly decide to lower their fees since lawyers don't want to go to trial either. It was amazing how on their own they offered us a 10% fee reduction so that we could settle for the amount that we refused to go no lower than, if that makes any sense??? By them lowering their fees 10% we were able to agree to accepting a settlement amount that was acceptable to us. Sorry I am tired and I know I am not being very clear. Good luck with gathering info. and making your decision!

I posted a similar question a few weeks ago, and it seems that those most vocal, do indeed sue. We are going to pursue it (as matter of fact, i just got done sorting all of my medical records into 4 piles, in case we need to hire additional attorneys). I'm curious if anyone has a GOOD, attorney in the Bay Area of California. One who has indeed won a settlement for a BPI injury.
Thanks guys!
Trish
Ryans mom

If you say there is a question about litigation and cost.The point is the erbs will afect your child in the future no matter what.If a lawyer gets a third on the chance of not wining and If it cost you nothing to try what is the loss? If you dont try , latter you might! I have ERBS,I am 50 and I have a human rights case I am fighting now! I was discrimated on my Erbs and my age! I also know you are dealing with the erbs issue the best you can,Just like my parents did in the 50,s and then doctors said erbs was a birth defect not a injury!You can only do what is best you can do.But when you ask the question at lest you will have away to get help because you and you child are not alone here!Tom

I am a medical malpractice attorney in Massachusetts and can answer your question about attorneys fees. In Massachusetts fees are controlled by law in medical malpractice cases. The fee is :

40% of the first $150,000
331/3rd of the next $150,000
30% of the next $200,000
25% of recovery over $500.000

Any lawyer that does not explaint this to you does not really do medical malpractice work, or is violating the current law by charging you too much,

Concerning the case, it is true that some cases win and some lose. A lawyer experienced in medical malpractice cases, in particular brachial plexus cases should win, or settle a majority of the time. The key is to select good cases and pursue them very hard. The way to to tell if the firm can handle real medical malpractice litigation is through the firms experience and the staff. if the firm does not have nurses on thr staff, I would go someplace else. Also, the firm should have real experience in brachial plexus cases through settlement and trial. It is also important that the lawyer that would take the case to trial work on the case prior to the trial, and not hand it off to an associate of the firm.

Of course, no lawyer can guarantee that you will win the case. But, a lawyer experienced in brachial plexus cases can certainley tell you if the case is strong. If the lawyer has the case reviewed by a competent and qualified obstetrical expert who belives you were the victim of medical negligence, you should consider going forward with the case. Even if you lose the case, at least you can tell your child that you fought for him/her and did all you could to bring the doctor to justice.

I know this is alot at one time and can be confusing. If you have other questions, please feel free to contact me directly.

Ken Levine
Klevine@Klevinelaw.com
617-566-2700

In the state that we live in many attorneys get 30% of the award. We have done much research on this before signing papers to agree to this percentage. What we found out was that any attorney who requests less than 30% in this state usually will not win the case. If you pick an attorney here in this state who wants 30% you have a great lawyer who will help you win and who will better your chances of winning. I learned this from several different lawyers who are friends of the family and through reading up on things myself. Doesn't sound like it can be true, but after hearing it dozens of time I guess it is.