Ron Miller is an attorney who focuses on serious injury and wrongful death cases involving motor vehicle collisions, medical malpractice, and products and premises liability. If you are looking for a Maryland personal injury attorney for your case, call him today at 800-553-8082.

caps on malpractice lawyers' feesIn recent years, we have been picking up more malpractice cases — primarily birth injury cases — in jurisdictions outside of Maryland and D.C.  We have handled claims close to home like Pennsylvania and West Virginia and we have also handled (and settled) cases as far away as Oregon.

To do this, we needed to get up to speed on the basics of malpractice calls in that jurisdiction.  Not so much to handle the case — we have local counsel for that — but to screen the case to evaluate whether it is a viable claim to bring.   It is important, of course, to know if the state has caps on malpractice cases and we have done that research.

But, honestly, you also need to know whether there are significant caps on attorneys’ fees because it has a real impact.  Taking a birth injury case in New York, for example, is a very tough play economically because you are only getting 10% of everything past $1 million.

We did the research not for a blog post but for our internal use.  But I thought it would be helpful to give you a head start in your research.  You should verify all of these, of course, and I tried to link to the statute to help you out.

State Attorneys’ Fees
California Sliding scale fees may not exceed 40% of the $50,000, 1/3 of the next $50,000, 25% of the next $500,000, and 15% of damages exceeding $600,000. (Bus. & Prof. §6146)  California, of all states, makes it difficult for plaintiffs both with caps and attorneys’ fees.  It is a no surprise that malpractice is rampant there.
Connecticut Sliding scale fees may not exceed: one third of first $300,000; 25% of next $300,000; 20% of the next $300,000; 15% of the next $300,000; and 10% of damages exceeding $1.2 million. (CGS §52.251c)
Delaware Sliding scale fees may not exceed: 35% of first $100,000; 25% of next $100,000; and 10% of damages exceeding $200,000. (Del. Code Ann Tit. 18 §. 6865)
Florida Separate sliding scales for cases settling before filing an answer or appointing an arbitrator, cases settling before or after going to trial, and cases in which liability is admitted and only damages contested; Florida kicks in 5% extra for cases appealed. (Atty. Conduct Reg. 4-1.5(f)(40(b))
Illinois Sliding scale fees may not exceed one-third of all sums recovered. (Ill. Comp. Stat. Ann. § 110.2.1114) The attorney may apply to the court for additional compensation under certain circumstances. (§ 735.5/2.11 4)
Indiana If before July 1, 2017, plaintiffs’ attorney fees may not exceed 15% of any award that is made from Patient’s Compensation Fund (covers portion of an award that exceeds $100,000). If after June 30, 2017, 32%. (Ind Code Ann. §16.9(5).51)
Maine Sliding scale fees may not be higher than one-third of the first $100,000; 25% of the next $100,000, and 20% of damages that exceed $200,000; for purpose of the rule, future damages are to be reduced to lump sum value. (Me.Rev.Stat.Ann§24.2961)
Massachusetts Sliding scale fees may not exceed 40% of first $150,000, 33.33% of next $150,000, 30% of next $200,000 and 25% of damages that exceed $500,000; further limits if claimants recovery insufficient to pay medical expenses. (Mass. Ann. Laws Chap.231. § 60I)
Michigan Maximum contingency fee for a personal injury action is one-third of the amount recovered. (Mich. Court Rules 8.121(b))
New Jersey Sliding scale fees may not exceed one third of first $750,000, 30% of second $750,000, 25% of third $750,000 and 20% of forth $750,000; and amounts the court approves for damages that exceed $2,000,000; 25% cap for a minor or an incompetent plaintiff for a pretrial statement. (Court Rules §1:21-7)
New York Sliding scale fees may not exceed 30% of first $250,000, 25% of second $250,000, 20% of next $500,000, 15% of next $250,000, and 10% over $1.25 million. (N.Y. Jud. §474-a) The court may allow higher fees upon application of the claimant or his attorney. But lawyers can’t rely on this expectation.
Oklahoma Fee may not exceed 50% of the net judgment. (§5.7)
Tennessee Attorneys’ fees may not exceed one-third of recovery. (Tenn. Code Ann. § 29-26-120)
Utah Contingency fee may not exceed a third of award. (§78B.3.7.411)
Wisconsin Malpractice fees are on a sliding scale may not exceed one-third of first million or 25% of first $1 million recovered if liability is stipulated within 180 days, and not later than 60 days before the first day of trial, and 20% of any amount exceeding $1 million. In special cases, the court may approve a higher fee. (§655.013)
Wyoming If recovery is $1 million or less; one-third if claim settled within 60 days after filing, or 40% if settled after 60 days or if a judgment is entered; if over $1 million, 30%. However, parties may agree to pay more. (Ct. Rules, Contingent Fees R. 5)


Medically induced cooling of the brain can help treat damage. This relatively new procedure — the FDA approved it a little over 10 years ago —  provides the opportunity to treat babies who are suffering from hypoxic brain damage as a result of perinatal asphyxia.

We don’t totally understand exactly why brain cooling works although there are many theories that make perfect sense that are floating around out there.  But, ultimately, who cares why it works.  It appears to work on not only the brain but other vital organs that have been harmed from oxygen deprivation.

At this point, I don’t know why any hospital with a NICU would not have the ability to use cooling to protect an infant from brain damage.

Saying you suffered a head injury in an accident is sort of like saying your nephew is an actor. He might be Will Smith, but he also might be an understudy in a local dinner theater production.

Head injuries to automobile occupants have been shown to be a major cause of death and permanent brain injury within the U.S. and internationally. Head injuries vary from headaches that resolve quickly to brain damage that destroys a life. The data on head injury verdicts does not leave a good impression of the settlement value of head injury cases:

  • Head Lacerations and Contusions: $10,016

Years ago, we were involved in gadolinium MRI lawsuits involving nephrogenic systemic fibrosis (NSF), which is a fibrosing disorder of the skin and joints that occurs with victims with advanced renal insufficiency.

Th cases settled for millions of dollars because NSF is just an absolutely awful disease.  Now there are a new set of gadolinium MRI lawsuits alleging that the gadolinium is toxic and harming patients.

What is Gadolinium?

Women experiencing typical pregnancies are not offered the option of inducing labor at 39 weeks.  That might change.

A recent study funded by the National Institutes of Health (“NIH”) suggests that electively inducing labor 1 week before the due date decreases the risk of complications and lead to a safer delivery.  New mothers whose labor was induced in week 39 (instead of waiting for labor to begin naturally) were less likely to require a C-section and had lower rates of preeclampsia and other complications.  The research also established inducing at 39 weeks did not increase the chances of stillbirth or other severe complications compared to mothers who were not induced.  The detailed results of this pivotal NIH study were just published in the New England Journal of Medicine: Labor Induction versus Expectant Management in Low-Risk Nulliparous Women.

malpractice-7It was previously believed that early induction of labor significantly increases the likelihood of an emergency cesarean delivery in response to complications.  This made many doctors reluctant to induce any time before 40 weeks, but no comprehensive study had ever been done before.  The Pregnancy and Perinatology Branch at NIH funded the study in an effort to fill this data gap.

A neonatal stroke (also called a perinatal stroke) is defined as an interruption of blood flow to an infant’s brain that occurs between 20 weeks gestation and first 28 days after the child is born. Neonatal strokes can be ischemic or hemorrhagic.  Ischemic neonatal strokes are caused by some form of blockage in the blood vessels.  Hemorrhagic strokes occur when blood vessels rupture and bleed.

What causes a newborn to have a stroke?

Neonatal strokes are the result of some event within the body that suddenly disrupts the normal flow of blood to the baby’s brain.  In adults, the underlying causes leading to a stroke are usually high blood pressure, diabetes or some other condition.

In June 2018, a study was published in the Canadian Medical Association Journal which shows there has been an alarming increase in the rate of birth injuries resulting from forceps-assisted deliveries.  This does not surprise me because our obstetrician experts have been telling us for years that the new generation of obstetricians does not have the skill to use forceps.  If too much pressure or force is used, forceps can cause injury to both mother and baby.

What Are Forceps?

Obstetrical forceps are a surgical tool used by OB/GYNs to assist in difficult vaginal deliveries.  The forceps look like large plyers with metal spoons at the ends.  The spoons are used to basically grip the baby’s head so that the doctor can then manually maneuver the baby through the birth canal.  Sometimes, birth injury lawyers unfairly vilify forceps. But forceps are a very effective weapon with the right obstetrician.  The problem is they require a high level of skill and experience by the doctor.

babya-300x169Birth injuries can result in lifelong consequences for both the parents and the child. Serious birth injuries can result in permanent disabilities and a lifetime of expenses.  Birth injuries are often the direct result of medical negligence or preventable medical error by the doctors, nurses, and staff during the labor and delivery process.  When birth injuries are attributable to medical negligence, the civil legal system gives injured parties the ability to obtain financial compensation from doctors, hospitals, and their insurance carries.

If your child has suffered a birth injury, your question is where do I go from here?  What can I do to bring about the best possible outcome for my child?   If your child had not suffered a birth injury, money is important yet still pretty far down on the list of what you need to make a good life for your child.  For a child with significant birth injuries, money jumps higher on the “things you need” chart.  So if someone wonders why you are worried about filing a lawsuit instead of focusing on your child, I think bringing a meritorious birth injury claim is exactly what you do when you are putting your child’s future first.

Below are some common questions parents ask in birth injury cases.

Caput succedaneum and cephalohematoma are similar – but distinct – birth injuries which cause a baby’s head to swell. They are typically not serious and will heal themselves over a relatively short period of time.  For most worried parents, it is not a big deal if it is not coupled with a brain bleed or other cerebral insult.  But these conditions can lead to more severe complications in the absence of a prompt diagnosis, vigilance, and effective treatment. Furthermore, the possibility that one of these conditions is connected with or arising from a more serious birth injury also means that immediate medical attention should be given to diagnosing and providing any necessary treatment for these conditions.

The importance of prompt and effective diagnosis and treatment for these conditions, unfortunately, means that what would otherwise have been harmless can grow to become a more serious – sometimes life-long – condition on account of medical negligence. This can arise from failing to recognize the issue during or after delivery, a failure to provide proper treatment (such as a C-section, when warranted), or even failing to diagnose precipitating causes of the injuries prior to birth. If your child has suffered from one of one of these conditions as a consequence of medical neglect, you should be eligible to receive compensation.  Contact me if you are looking for answers about your child’s case.

I am going to walk you through some of the most frequently asked questions about caput succedaneum and cephalohematoma.

Hypoxic ischemia (also known as ischemic hypoxia, hypoxic-ischemic encephalopathy, and HIE) is brain damage which occurs when an infant does not receive enough oxygen and blood in their brain. All of our brains, but particularly a baby’s brain,  is extremely dependent on blood and oxygen to survive.  When the brain is deprived of blood and oxygen for a sufficient amount of time, it becomes permanently damaged from hypoxia and ischemia. Once permanently damaged by hypoxia and ischemia, the brain permanently fails to provide normal neurological function.  This can cause both mental and physical injuries.  Fatalities are not uncommon.  HIE caused by asphyxia is the leading cause of infant mortality in the United States.

Unfortunately, cases of hypoxic ischemia can often happen as a consequence of medical negligence. In particular, failing to accurately diagnose the condition (often through neglecting the fetal heart rate monitor), or inadequate treatment and care during the delivery process (often through failing to perform a c-section when needed) are the two biggest factors that cause hypoxia because of medical neglect.

Birth injury lawsuits have been successfully filed for the parents to receive their due compensation for the serious consequences which can stem from hypoxic ischemia. If you have any questions about hypoxic ischemia or believe you may be entitled to compensation due to this condition arising in your child as a consequence of medical neglect, you should reach out to me.

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