Points to Consider In Selecting A Good Medical Malpractice Attorney in Phoenix and What You Should Expect from Your Attorney, Once Retained




A Short List of Points to Consider In Selecting A Good Medical Malpractice Attorney in Arizona

Medical malpractice cases are complicated, risky and require a huge amount of time and energy commitment on the part of the lawyers involved. There are a limited number of well-qualified medical malpractice attorneys because it is such a challenging subspecialty and requires very sophisticated knowledge of both the law and medicine.  Lawyers in this field have monetary risks are substantial.

  • Is the attorney experienced in medical malpractice cases and does he or she represent injured patients versus physicians, hospitals and other medical providers?
  • Does the attorney have in-depth knowledge and understanding of medical issues and of the medical field?
  • Will the attorney handle your case on a contingency fee basis and if so what will be the specifics of the retainer agreement? Will he or she advance the costs of pursuing your case or will you be responsible for these costs?
  • Will the attorney pursue your case aggressively and does the attorney have compassion and understanding of your injuries and losses?
  • Does the attorney have a network of expert medical witnesses and other forensic experts who can help you develop and present your case?
  • What previous settlements or jury verdicts has the attorney negotiated or achieved which will help you understand his or her track record. Be sure to check all biographical information available.
  • Use search engines or other means of research to determine whether the attorney has written articles, FAQs or other information pieces that demonstrate his or her competence in the medical malpractice field.
  • Check to see if the attorney belongs to personal injury trial lawyer associations such as the American Association of Justice, an organization that specifically works with plaintiff’s medical malpractice attorneys.
  • Check the State Bar website to make certain the lawyer is in good standing.

What Should You Expect From Your Attorney, Once He or She is Retained?

  • Good communication so you are always aware of what is going on. Email exchanges have greatly improved communications in attorney-client relations.
  • Honesty and professionalism- will this attorney be impressive to a jury in the presentation of your case.
  • Good medical knowledge and good advocacy skills
  • Good understanding and sympathy concerning the nature and extent of the injuries/damages
  • Ability to enlist capable and well-qualified expert witnesses and support staff
  • Diligence, willingness to work hard and persevere

Information and Resources Clients Should Provide The Medical Malpractice Attorney

  • Information regarding conversations with doctors and names and addresses of witnesses to conversations. Did any subsequent treating physicians comment about previous care?
  • Timelines which will help to reconstruct the important occurrences and events.
  • Photographs and/or videos which demonstrate the problems and difficulties the client went through as a result of the malpractice.
  • Clients should contribute a certain amount towards the costs of the case, if they can afford it so they feel they are clearly part of the process.
  • Clients generally in the initial interview should be advised against emailing friends or using other social media about the case or putting anything on Facebook and other chat rooms. All such materials can be subpoenaed or are otherwise subject to discovery.

Contact Us For More Information

If you believe you or a loved one are the victim of malpractice and have suffered significant injuries and damages relating thereto, please contact the Law Offices of William D. Black. If the facts justify it, we will review your medical records to determine if there is a provable case and if it is economically feasible to proceed. We have qualified medical personnel on staff. Our telephone number is 602-265-2600, 844-224-0054 or contact us online.

What Is the Appropriate Amount for an Attorney to Charge to Process My Case?

In Arizona most malpractice cases are usually processed on a contingency fee basis. This means there is no fee charged unless and until you are successful in your case with either a settlement reached or a Court or jury award. You should always confirm your agreement of representation in writing with a retainer contract which sets forth the details of the agreement. In Arizona, the average percentage charged in a medical malpractice contingency fee agreement ranges between forty to forty-five percent. Since you are not paying for the attorney’s fees unless and until you make a recovery, you should select the most qualified attorney you can find, the one who has the best chance of winning your case. The contingency fee percentage is ordinarily higher in a medical malpractice case than a more routine negligence case like an automobile accident claim. This usually is based on the fact the cases are much more complicated and need an attorney with specialized expertise and also the fact that the attorney is often advancing costs in the case on your behalf so he or she is taking a financial gamble that the case will be successful and there will be reimbursement of costs.

The basic statutory requirements governing medical malpractice actions are contained in A.R.S. 12-561 to 563.

Regardless of the initial fee agreement, a fee must be reasonable under all the circumstances. In the Matter of Swartz, 141 Ariz. 266, 273, 688 P.2d 1236, 1243 (1984) the Arizona appellate court stated if there is a dispute relating to a contingency fee, the factors to be considered include:

  • The degree of uncertainty or contingency with respect to liability and the amount of damages which may be recovered or the funds available from which to collect any judgment.
  • The difficulty of the case and the skill required to handle it
  • The time expended pursuing it
  • The results obtained

Most good medical malpractice attorneys will agree to prosecute malpractice claims on a contingency fee arrangement. This means that the attorney will not charge an hourly rate for his services, but instead will be paid a percentage of the recovery in the event of a settlement or judgment. In many cases, costs are advanced on behalf of the client and are payable, interest-free, at the conclusion of the case. Costs include such expenses as medical consultant fees, court filing fees, service of process fees, expert witness fees, deposition costs, etc.

Twelve Things A Prospective Client Should Consider About Contingency Fees

  1. Clients should understand what a contingency fee is. Generally defined, in Arizona it is a fee for services provided where the fee is payable only if there is a favorable result for the client. It is usually calculated as a percentage of the client’s gross recovery.  The client is usually responsible for the costs of pursuit of the claim (administrative costs, court costs, expert witness costs, etc.), but these are often advanced on behalf of the client by the attorney and recouped at the time of settlement of the case.
  2. Contingency fee agreements can make sense in many cases for both the client and the attorney. A lot of people in our society are not able to afford to pay what they consider to be attorney’s expensive fees (Usual hourly fees), but they may well have valid legal claims.  Having legal fees and costs assumed by the plaintiff’s attorney in exchange for a piece of the ultimate verdict or settlement is one way in which they can fund their prospective litigation. Contingency fees also in most instances provide a powerful motivation to the attorney to work hard and diligently on the client’s case. The other justification for contingency fee agreements is that the average prospective claimant, if they are attempting to represent their own interests, does not have the legal training or resources to pursue a claim on their own.  They usually do not have the knowledge and experience to place a value on their claim or if they are working with an attorney on an hourly fee basis, to be able to evaluate their attorneys worth or ethics in the pursuit of the case.  The contingency fee case in many cases can help to instill honesty in their dealings.
  3. There are certain types of cases which lend themselves well to contingency fee agreements. Others do not.  They are most commonly used in personal injury and medical malpractice claims.  Over the last few decades, use of contingency fees has expanded into other types of cases; commercial collections, business litigation, civil rights claims, employment claims and intellectual property claims. Contingency fee agreements are, of course, not offered in criminal, divorce or bankruptcy proceedings.  Most injury cases are handled on a contingent fee ranging from 33% to 35%, plus litigation costs. Medical malpractice cases are usually handled on a 40% basis. Some attorneys will use a sliding scale for the fee which means that if the case is resolved before litigation, the fee may be lower but if the case goes all the way to trial, it will be higher. When choosing an attorney, the fee percentage should be considered, but it is not always the most important consideration. A prospective client should also make inquiry concerning an attorney’s expertise, trial experience and proven results.
  4. Arizona has statutes and Professional Rules of Ethics which prevent attorneys from overreaching in their implementation of contingency fee terms. Regardless of the terms of the agreement, if there appear to be significant injustices to clients in any specific case, a right of review remains to assure fee is ultimately reasonable.  A.R.S. 12-568, Matter of Swartz, 141 Ariz. 266, 686 P.2d 1236 (1984) and AZ-ER 1.5(a).With respect to AZ-ER 1.5(a), the Rule out the following factors that are to be considered in gauging the reasonableness of a lawyer’s fee:
    (a) the time and labor required, the novelty and difficulty of the questions involved, and the skill required to perform the legal service properly;
    (b) the likelihood, if apparent to the client, that the acceptance of the particular employment will preclude other employment by the lawyer;
    (c) the fee customarily charged in the locality for similar legal services;
    (d) the amount involved and the results obtained;
    (e) the time limitations imposed by the client or by the circumstances;
    (f) the nature and length of the professional relationship with the client;
    (g) the experience, reputation, and ability of the lawyer or lawyers performing the service; and
    (h) whether the fee is fixed or contingent
  5. The standard fee in most personal injury cases is 33 1/3, In medical malpractice cases, the standard is 40%. There are discount lawyers who charge less, but those contracts often have escalator clauses — 25% if it settles on demand, 30% if a complaint is filed, 40% if the case is tried, 45% if an appeal is taken, etc. Such provisions often create conflicts and even problems. To a large extent, many of the discount attorneys are more interested in turning a profit than fight for best interests of their clients. Therefore prospective clients should be cautious of increasing percentage contracts to make sure they are not being played by the attorney to potentially give up more of their recovery than they should. Such fee agreements are clearly ethical and in some cases justified, but their implementation must ultimately be fair.
  6. Any attorney’s decision concerning whether to handle a case on a contingency fee basis should be based on the merits of the case and the overall economic circumstances present in the case. An attorney should evaluate the likelihood of victory on liability issues and determine whether, if successful, the claimed damages justify the economic risks.  In many contingency fee cases, clients are asked to pay and even advance costs so that the client has some skin in the game.  This also makes the attorney more willing to take risks in representation that he or she might not take otherwise.   It puts some control or limit on the potential financial losses an attorney might take of his or her time and money invested if the case ends up going south.  Some of the most dedicated professional in the legal profession work on contingency fees and show great dedication and perseverance in pursuing their clients’ causes.
  7. If the prospective client is asking the attorney to explore untested legal issues or test out the nuances of existing case law, it will be difficult to get an attorney to consider taking the case on a contingency fee basis. In these types of cases, clients are generally asked to advance all costs and attorneys, unless they have their own personal reasons for committing or agree to bill at an hourly rate, generally will refuse representation.
  8. If an attorney agrees to take a case on a contingency fee basis, he or she must keep the client informed of all developments to make sure the claim remains worthy of pursuit. If not, the attorney may help you gain an early dismissal to reduce the risk of the case turning on you.  Sometimes if the case starts developing badly, the attorney may decide to file a motion to withdraw.  If this occurs, you may want to revisit your decision to proceed.  An attorney under most state professional ethics codes is not required to pursue a case where the client is being unreasonable.  In Arizona under the Rules of the Supreme Court, Regulation of Practice, E.R. 1.16 certain rules are set up which can become the basis for an attorney’s withdrawal.  If representation is terminated, the attorney must follow certain steps set forth in these rules to make certain the client’s interests are properly protected.
  9. In deciding whether to undertake contingency fee representation in a case, attorneys may highly selective concerning the character and integrity of the client since both of those qualities will be scrutinized by opposing parties, opposing counsel and ultimately the judge and jury if the case ends up being tried.
  10. Prospective clients should not hire attorneys on a contingency fee basis who are inexperienced in handling the type claim being pursued. This can backfire severely with potential cost assessments or sanctions being levied by the court against the plaintiff, counterclaims being filed and possibly even abuse of process claims being pursued if the case ends up being dismissed for lack of merit or because the attorney is inexperienced.
  11. If you plan to or have retained an attorney to replace a former attorney, make certain you have the new attorney explore whether there are attorney and cost liens existing from the former attorney which could undercut your recovery and that of the current attorney. Your current attorney should also be fully aware of and keep you posted regarding any other liens and their possible effect on the economics of the case.
  12. Any settlements or awards should be paid through your attorney’s trust account in order to ensure accurate accounting regarding your recovery, costs and the attorney’s fees. The best practice is to review a proposed Settlement Breakdown Statement prior to authorizing the settlement to eliminate possible misunderstandings.  Paying the settlement through his or her Trust Account will oftentimes avoid unnecessary disputes which could result in Bar Complaints or further lawsuits.

What the Client Needs to be Aware of and Stress in Determining Whether to Pursue a Medical Malpractice Case

The client needs to be educated about the economic evaluation of whether it is feasible to pursue a medical malpractice action.

The client must also be prepared to truthfully disclose the names of all doctors who have treated, the places and reasons for hospitalization, continuing medical problems and significant medication use.

Types of Potential Medical Malpractice Clients Attorneys Prefer to Avoid:

  • Those who have their own agenda
  • Those who have unrealistic expectations
  • Those who have a criminal record, court martial background or negative military career
  • Those who are angry or vindictive
  • Those who believe they know-it all
  • Those who believe they have conquered law and/or medicine by their own internet research
  • Those who want to rewrite the fee agreement at the outset and/or as the case progresses
  • Those who are over-demanding clients
  • Those who are prepared to disregard the findings of qualified experts
  • Clients who are rude, obnoxious or notably unlikeable
  • Clients who are not credible or forthright in disclosing their medical histories in their interviews and their testimony
  • Those who first show up at the attorney’s office when it is too close to the expiration of the statute of limitations or show up with other procedural problems
  • Those who are currently in litigation and are represented by another law firm or who have seen multiple lawyers or who have filed their own lawsuit pro per
  • Those who are overly litigious-have made a number of prior claims or filed a number of lawsuits
  • Clients who must be in control
  • Clients who do not listen and constantly interrupt
  • Those who have a very erratic work record or one that cannot be explained

Why Select Us

 We Have Proven Results. Contact Us to Take Advantage of Our Many Years of Experience and Medical Expertise

Medical malpractice cases can be very complicated and expensive and prosecution of a claim requires a team of experienced professionals. The Law Offices of William D. Black is committed to helping our clients rebuild their lives if they have been victimized by malpractice. We have the knowledge, experience, and financial resources needed to successfully pursue medical negligence cases. If a medical provider has committed malpractice and you or a loved one have been seriously injured as a result thereof, we can build a strong and persuasive case on your behalf and get you the award or settlement to which you are entitled.

The fact that a medical procedure has a bad outcome does not necessarily indicate that medical malpractice caused the result. But when a personal injury or wrongful death occurs because of ignorance, negligence, or improper use of method and practice, the victim or the victim’s family deserves answers.  Our attorneys at The Law Offices of William D. Black work diligently to obtain those answers, reasonable compensation, and ultimately justice.

Contact Us For More Information

If you believe you or a loved one are the victim of malpractice and have suffered significant injuries and damages relating thereto, please contact the Law Offices of William D. Black. If the facts justify it, we will review your medical records to determine if there is a provable case and if it is economically feasible to proceed. We have qualified medical personnel on staff. For a consultation with a Phoenix, Arizona medical malpractice lawyer at the Law Offices of William D. Black, call 602-265-2600, 844-224-0054 or contact us online.

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