Public Health Law Map - Beta 5 - Medical and Public Health Law Site

case; rather, it encourages the attorney to settle the case at a discount. After a certain
point in the history of a case, it acquires a settlement value. In the traditional
contingent fee contract, the attorney is provided an incentive to continue to invest
work and money to raise that settlement value. With a sliding scale cap, the reduced
reward for increasing the value from, say, $900,000 to $1 million may not offset the
work involved.
Limiting the percentage of an award that the attorney may claim as a fee affects the
litigation process in a different way. Capping the percentage charged (perhaps at
25%) raises the threshold value for accepting a case. A case that was profitable at
40% (of $100,000) would have to be worth $160,000 to yield the same fee at 25%. It
has been argued that sliding scale caps prevent attorneys from gaining windfalls.
Percentage caps, however, serve only to deny access to the courts.
3. Costs in Other Countries
The European countries, Canada, and the United Kingdom allow only limited
contingent fees. They have little medical malpractice litigation as compared with the
United States, and little personal injury litigation of any type. It is assumed that the
limitation on contingent fees is responsible for the dearth of litigation. This underlies
the call by many physicians and others to limit or abolish contingent fees in the
United States. Although it is true that contingent fees are necessary to ensure that
most individual plaintiffs have access to the courts, the important question is why
other counties have not adopted contingent fees. The answer is that there is a quid
pro quo for this lawsuit- free climate.
In the medical context, other developed countries are less dependent on litigation
because their citizens have some level of guaranteed access to medical care and
rehabilitation services. In the United Kingdom, for example, the National Health
Service provides medical services without regard to the cause of the injuries or the
patient’s personal financial status. Other social welfare agencies help with disability
relief. Therefore, there is no need for patients to sue to force negligent third parties to
pay for the cost of their injuries. The disciplining of physicians is separate from
compensating the plaintiff. A physician found to be incompetent is struck off the
register rather than incurring a large litigation loss that will ultimately be paid by the
other physicians in the same insurance pool.
In the United States, patients are responsible for their own medical bills and
rehabilitation services. Many persons have medical insurance through their
employers, but a substantial number do not. Moreover, this employment-based
insurance is lost if the patient’s injuries interfere with his or her ability to do the job.
Politically, it is easier to leave compensation to an entrepreneurial law system rather
than to address the problems of an incomplete medical care delivery system.
G. Emotional Risks of a Trial
Medical care practitioners who are criminal defendants are usually facing
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