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A Contingency Plan for Taking a Case on Contingency

10/03/18 10:46 AM

Plaintiff’s attorneys frequently argue there is no way a seasoned attorney would take a meritless med mal case. They note that taking such cases to trial to case is expensive. They take such cases on contingency. If they lose, they lose big. And they would be the party bearing the out-of-pocket risk.

Now, the market has introduced Litigation Cost Protection. It’s currently used mostly for “bodily injury” such as slip and fall cases. Litigation Cost Protection covers trial expenses including expert witnesses and litigation-presentation costs. The policy costs around 7% of the policy limit with a $100k case.

The merits of any given case are not underwritten. The only criterion is whether the attorney is in good standing with the state bar. Insurance is available in state courts in Florida, California, New York, New Jersey, Illinois, and Texas (plus federal courts).

The defense bar is not happy about this offering.

Level Insurance will lead to more trials and overburden the court system if plaintiffs’ lawyers have no down-side risk, says John T. Lay, president of the International Association of Defense Counsel and an attorney at Gallivan White & Boyd in Columbia, South Carolina. “That puts the lawyers in a conflict where it might be better for the client to settle, but they go to trial anyway,” he said.

While the product addresses out of pocket expenses, it does not address time spent prosecuting a case or if a lawyer loses a case before trial, such as with Motion to Dismiss.

As to whether the offering will be expanded to address more expensive endeavors such as med mal, class action suits, or product liability, the jury is still out.

What do you think?



ABOUT THE AUTHOR

Jeffrey Segal, MD, JD

Dr. Jeffrey Segal, Chief Executive Officer and Founder of Medical Justice, is a board-certified neurosurgeon. In the process of conceiving, funding, developing, and growing Medical Justice, Dr. Segal has established himself as one of the country’s leading authorities on medical malpractice issues, counterclaims, and internet-based assaults on reputation.

Dr. Segal holds a M.D. from Baylor College of Medicine, where he also completed a neurosurgical residency. Dr. Segal served as a Spinal Surgery Fellow at The University of South Florida Medical School. He is a member of Phi Beta Kappa as well as the AOA Medical Honor Society. Dr. Segal received his B.A. from the University of Texas and graduated with a J.D. from Concord Law School with highest honors.

If you have a medico-legal question, write to Medical Justice at infonews@medicaljustice.com.

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This is just another way for attorneys to justify taking on bad med mal cases for the sake of the potential lottery. This mitigates their risk if they lose their case. Just another great insurance company product. I hope the premiums get so expensive in a few years no attorney can afford them, which is likely to be the case.

Brian
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Brian

Just like malpractice insurance. Serves them right!