Jane Clark Legal – Protecting Your Rights With Proven Legal Strategies

A Contingency Fee is an attorney fee that you will only pay if we recover compensation on your behalf either through settling your case or winning the case at trial. In other words, “no win, no fee.”

The fee is calculated as a percentage of the gross recovery. Our standard Contingency Fee in medical malpractice cases is 40% of the total amount recovered for you by way of compensation.

For example, if we recover $100,000 on your behalf either through settlement or at trial, our fee will be $40,000. If, however, we do not recover any money for you, you will not owe us a fee for the work we have done on your behalf. The only money you will owe us in that situation is reimbursement of the costs and expenses of the case, which are described below.

There are costs or expenses that we have to pay on your behalf to investigate and pursue your case. They include expenses for obtaining medical records, fees paid to expert witnesses to evaluate your case, court fees, court reporter fees, deposition expenses, and other litigation expenses. These fees will remain your responsibility regardless of whether we win or lose the case. After our initial evaluation of your case, we may ask you for a retainer to pay for the expenses of the case.

Our office will keep you informed as to the amount of these expenses as the case proceeds. We offer payment plans to spread out the costs for you and, in some situations, we may be able to advance the costs on your behalf so that you do not have to pay them upfront. We will discuss all options with you at the outset of the case.

Yes. If you prefer that we represent you on an hourly rather than a contingency basis, we will charge an hourly fee for the work we do on your behalf and bill you for our time at regular intervals.

Burden of Proof: In a medical malpractice case, the Plaintiff has the “burden of proof.” This means that it is up to the Plaintiff (or the injured person) to prove that the defendant was negligent. Unlike a criminal case, where the prosecution must prove the case “beyond a reasonable doubt,” in a civil case, the Plaintiff must prove all elements of the case only on a “more probable than not” basis.

Standard of Care: The Plaintiff (injured person) must prove that the healthcare provider (defendant) failed to meet the “standard of care” for the specialty or profession to which he or she belongs. The standard that the courts apply is that of a reasonably careful or prudent healthcare provider acting in the same or similar circumstances. For example, if the alleged negligent care was provided by an orthopedic surgeon, the standard of care is that of a reasonably careful orthopedic doctor treating a patient in the same or a similar situation.

Medical negligence cases, other than in exceptional circumstances, can only be proved through the testimony of an expert witness, who practices in the same field of medicine as the defendant. For example, if the care in question was provided by an Emergency Room physician, we will generally need to hire an expert who is an Emergency Room physician to provide an opinion as to whether the care provided was outside the applicable standard of care. A “violation of the standard of care” is the same as saying, “the doctor was negligent.”

Causation: In addition to proving that the care was negligent, the Plaintiff must also prove, on a more probable than not basis, that the negligent care caused the harm complained of. This is known as causation. There are some situations where the care provided was negligent, but it did not cause any harm. For example, a radiologist may negligently miss a fracture on an x-ray, resulting in a delay in diagnosis for one week. If the treatment is the same one week later with the same outcome in terms of recovery, the negligent failure to diagnose the fracture did not “cause” any injury. In that situation there would be no case to pursue because no harm or damage was caused by the negligent care.

We will evaluate the causation aspects of your case with the assistance of experts in relevant medical fields.

We will only recommend that you proceed with a case if we believe that we can prove both negligence and causation.

Damages: A Plaintiff has to prove that he or she has suffered damage caused by the defendant’s negligent care.

If damage can be proved, there are two types of “compensation” that a Plaintiff may be entitled to recover. The first is known as “special damages” or “economic damages,” and these are the expenses or economic losses that result from the alleged negligent care. Such expenses will often include medical expenses, lost wages and, in cases involving more serious injury, the cost of ongoing care, assistance around the home, adaptations to the home, and specialist therapies.

The second type of compensation is known as “general damages” or “noneconomic damages.” This is compensation for the Plaintiff’s pain and suffering, disability, emotional suffering and loss of enjoyment of life. If it is a medical malpractice case involving a death, damages may include compensation for the deceased person’s pre-death pain and suffering. Wrongful death damages may also include compensation to close family members such as the spouse and children of the deceased, for the loss of the love, support and companionship of the person who has died.

If the injured person was married, their spouse may also have a claim for the losses they have suffered. This is known as a “loss of consortium” claim.

We will work with you and with experts to evaluate your damages claims.