Explanation of Fees in Medical Malpractice Litigation
This memorandum is designed to explain to you what is involved in your medical malpractice lawsuit and the costs associated with it.
We will not proceed with any lawsuit until we have had an opportunity to investigate the case and decide whether it has a reasonable prospect of success at trial. In order for us to do this, it is essential for us to obtain all the hospital and medical records in connection with your care and treatment. We then decide what medical and other experts should review these records in order to proffer opinions regarding the standard of care and causation- the essential requirements of most medical malpractice lawsuits. This investigation usually takes approximately 6-12 months to complete, although it could take longer.
Standard of care is a legal test and involves a determination of whether the doctor or hospital personnel (i.e. nurses) fell below the generally accepted standard. If he/she did then he/she will be found to be negligent. The next issue is causation. Did the doctor's or hospital's negligence cause the damage complained of. If it did, you should likely succeed in your lawsuit.
The expense in medical malpractice litigation can be considerable. We therefore require an initial retainer of between $2,000 and $4,000, depending on the complexity of the case. In relatively straightforward cases, the amount of $2,000 may be sufficient to cover the costs involved in obtaining an opinion about the prospects of success in the lawsuit. In more complex cases, we may need to obtain the advice of several experts before we are able definitively advise you of the chance of success in your lawsuit.
Therefore, if you decide not to proceed with the lawsuit at the end of the investigation, you will in most cases not be asked to pay anything more than the initial retainer, which may be sufficient to cover the time and disbursements incurred on your behalf.
If the investigation leads us to believe there is a reasonable prospect of success, we will likely be prepared to take on your case.
To begin the lawsuit, a Statement of Claim is prepared, filed with the court and served upon the people or hospitals being sued. The first major step after starting a lawsuit is the Examination for Discovery. This is a form of pre-trial hearing where all parties to the lawsuit are required to give evidence under oath about the matters in question. This discovery process allows each side to discover the evidence supporting the other side's case.
Depending upon our assessment of the prospects of success, we may or may not require that a further retainer be paid to cover a portion of the costs for completing the Examination for Discovery. The amount of this retainer is usually between $2,500 and $3,000 (over and above the cost of the initial investigation). It is unlikely to be less than $3,000, but it could be much more in a complex case.
After the Examination for Discovery is concluded, we once again reassess the case to determine whether or not it merits going to trial. If it does, we will discuss with you the estimated costs involved in doing so. Again we may or may not require further funds before proceeding. Following the Examination for Discovery, the case is set down for trial and a date for trial is set at a trial scheduling conference.
In the Province of Ontario, if your lawsuit is successful, either at trial or by negotiation of settlement, you are entitled to collect a portion of your legal fees and disbursements from the other side, in addition to any damages to which you are entitled. The balance of our fees and disbursements, which are not paid by the other side, will generally not exceed 25% of the damages recovered. Our final bill is not based on a percentage calculation; however, through experience and a very careful study of other malpractice cases, we have found that the portion of fees and disbursements our client must pay, in the event we are successful, is usually 25% of the damages recovered. This is over and above the costs paid by the other side. Any amounts paid during the course of the investigation or lawsuit are credited against our final bill.
For example, if the recovery is $100,000 plus costs, our fee over and above the costs will likely be $25,000, leaving a net recovery to you of $75,000 before payment of Goods & Services Tax (GST).
If you are unsuccessful at trial or wish to discontinue the lawsuit prior to trial, you will have to pay our total bill. You may also be asked to pay a portion of the other side's legal expenses. However, if you decide to discontinue the lawsuit prior to trial, it is usual for the defendants to agree to waive their costs in return for a consent by you to the dismissal of the lawsuit.
Please note that at every stage of the proceedings we will discuss with you our legal opinion regarding your chances of success at trial. This will allow you to make an informed decision as to whether you wish to continue with your lawsuit.
PERSONS INVOLVED IN YOUR LAWSUIT
During the course of your lawsuit, you will likely be dealing with several members of our firm. One particular lawyer can not efficiently conduct all aspects of your lawsuit. Often, more routine steps are delegated to other lawyers and legal assistants. Richard Bogoroch will, however, supervise every aspect of it.
CONCLUSION
Medical malpractice litigation is often complex, difficult and risky. At Bogoroch and Associates our objective is to keep you informed every step of the way. Please feel free to contact us with whatever questions you have.
NOTE: This explanation of fees is designed to inform in a general way what your fees are likely to be. Fees can vary depending on the complexity of the case. The percentage fee can vary betweem 12.5 – 20% of the amount recovered. All clients are provided with written confirmation of the fees applicable to their cases.
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