Articles Posted in Medical Malpractice

Medical malpractice lawyers filed an informed consent lawsuit last week accusing a doctor of amputating a man’s penis without his consent. In the lawsuit, a Kentucky man alleges that the doctor was only authorized to perform a circumcision. What happened—right or wrong – was the doctor did what he thought he should, to save the patient’s life when he found cancer during the operation.

I won’t prejudge this lawsuit without hearing the evidence. I can certainly imagine a scenario where a doctor finds cancer during a routine operation and does what the doctor believes he must do to save the patient. The Plaintiff affirmed the doctor’s prerogative in this regard by signing a consent form acknowledging that unforeseen conditions discovered during the circumcision “may necessitate additional or different procedures.” But I would reserve judgment on the merits of the case because it really depends on whether reasonable minds could differ as to what was the appropriate course.

But I find disturbing that the lawsuit seeks punitive damages. Unless facts in the case exist that were not included in the Courier-Journal article I read, there is no malice or even recklessness in a doctor – right or wrong – deciding to save a patient’s life.

New York limits an attorneys medical malpractice contingent fee in a medical, dental or podiatric malpractice case to 30 percent of the first $ 250,000 of the sum recovered; 25 percent of the next $ 250,000 recovered; 20 percent of the next $ 500,000 recovered; 15 percent of the next $ 250,000 of the sum recovered; 10 percent of any amount recovered over $ 1,250,000.

While contingency fees vary from malpractice lawyer to malpractice lawyer, 40% is a common fee in medical malpractice cases. So if a case settles, or the plaintiff gets a verdict for $1,000,000, the attorneys’ fees, in many cases, is $400,000. In New York, when a malpractice case recovers $1,000,000, the malpractice lawyer’s fee is limited to $225,000.

If you are not a malpractice lawyer, you might think that this is not a bad payday for a single case. You are right. But the problem is that plaintiffs’ medical malpractice lawyers lose most cases. When a lawyer loses a case, he might lose $100,000 or more in out-of-pocket costs. This discourages many good lawyers from handling medical malpractice cases.

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