Lost Malpractice and can't afford to pay lawyer

[chooie]

What is the name of your state (Illinois)?

I signed a statement stating I'd be required for out of pocket expenses only. The communication I received from my lawyer was that the Experts testifying on my behalf could cost anywhere between $1200 - $2500 an hour with no real estimate on the number of hours and that I'd be responsible for these costs. I agreed as I was assured we had a strong case.

We had one mistrial, and the second trial we lost. I was billed 34K. I asked for itemized billing and copies of the invoices from the experts that testified so I could understand how costs got so high. I received the line item billing with no dates for each item, thousands of dollars in xerox copies, telephone charges, transcript charges ect.. It was my understanding I was paying for the experts to testify which actual cost came close to $10,000. (copies of original invoices were not provided)

I do not have a savings account, nor am I able to get a line of credit. I am receiving constant letters for reimbursement.

Four questions: 1. Am I responsible for all of these misc. costs? 2. Is this lawyer padding this invoice for profit. 3. Can he come after me in some way to collect? 4. What can I do?

thank you

[Zigner]

Everything you've described is an "out of pocket" expense. Be careful about accusing lawyers of malpractice...it could be much more costly than $34,000!

[Proserpina]

Originally Posted by chooie

What is the name of your state (Illinois)?

I signed a statement stating I'd be required for out of pocket expenses only. The communication I received from my lawyer was that the Experts testifying on my behalf could cost anywhere between $1200 - $2500 an hour with no real estimate on the number of hours and that I'd be responsible for these costs. I agreed as I was assured we had a strong case.

We had one mistrial, and the second trial we lost. I was billed 34K. I asked for itemized billing and copies of the invoices from the experts that testified so I could understand how costs got so high. I received the line item billing with no dates for each item, thousands of dollars in xerox copies, telephone charges, transcript charges ect.. It was my understanding I was paying for the experts to testify which actual cost came close to $10,000. (copies of original invoices were not provided)

I do not have a savings account, nor am I able to get a line of credit. I am receiving constant letters for reimbursement.

Four questions: 1. Am I responsible for all of these misc. costs? 2. Is this lawyer padding this invoice for profit. 3. Can he come after me in some way to collect? 4. What can I do?

thank you

1. If you originally agreed to pay, then yes - a strong case is not a guarantee and the costs would be incurred whether you won or lost.
2. Don't know - ask him for a further breakdown of charges. What exactly was the agreement between you?
3. Yes
4. Try to negotiate with him and see if he'll accept a payment plan

Do you have reasons why you should not be responsible?

[chooie]

I was not accusing the lawyer of malpractice if you read the subject line, I was represented in a malpractice. Thanks for your thorough and thoughtful answer.

[chooie]

When discussed the only cost discussed was the expert cost which I agreed to. I did not realize this meant everything but his time. I did try to see if he would be willing to adjust the cost and make a payment plan however he offered no solution.

I do accept that I made the decision to proceed with this case with the understanding we could lose. My primary expert had the strongest testimony yet I didn't find out until the court date that his testimony couldn't be used "by law" for deviation of standard of care which was how the jury was instructed because he was not the same type of Dr. (Podiatrist vs. Orthopedic.) In my opinion this lost the case and if my lawyer had done his research or knew this and communicated this to me, we shouldn't and wouldn't have proceeded with this case thus incurring all these costs.

He was my counsel and knows the law.

[Zigner]

Originally Posted by chooie

When discussed the only cost discussed was the expert cost which I agreed to.

Ummm - nope. Your very first post said otherwise:

Originally Posted by chooie

I signed a statement stating I'd be required for out of pocket expenses only.

[chooie]

To my understanding to be the expert cost. Looking for advice not combativeness. thanks

[Proserpina]

Originally Posted by chooie

To my understanding to be the expert cost. Looking for advice not combativeness. thanks

Did you ask for a continuance? (to find another witness)?

ETA: What specialty was the defendant's expert witness?

[Proserpina]

One other thing -

What was the nature of your injury/condition?

[ecmst12]

You are lucky that your agreement wasn't to pay for the lawyer's time, too, can you imagine how many hundreds of hours of his time are totally down the drain from this? Photocopies and phone calls and court costs are all out of pocket expenses. Though I'm surprised that your lawyer let you walk into court with an inappropriate expert.

[Proserpina]

Originally Posted by ecmst12

You are lucky that your agreement wasn't to pay for the lawyer's time, too, can you imagine how many hundreds of hours of his time are totally down the drain from this? Photocopies and phone calls and court costs are all out of pocket expenses. Though I'm surprised that your lawyer let you walk into court with an inappropriate expert.

I'm not sure it would be lawyer's fault. If both the podiatrist and orthopedic were able to, and frequently do, treat OP's condition I'm not sure why it wouldn't be allowed. I'm looking at Illinois law but I'm wondering if - just this once - there could actually been an error on the Judge's part.

Knowing OP's condition would be handy though.

[las365]

This is not something I would ever recommend lightly. You may wish to consult with a legal malpractice attorney.

Why did the first trial end in a mistrial? Was your podiatrist expert allowed to testify as to the orthopaedist's alleged failure to meet the standard of care in the first trial?

It is a general rule of thumb in med mal cases that you have an expert in the same discipline as the accused medical provider testify as to the standard of care and alleged failure to meet it.

As requested before, if you care to provide a brief description of the alleged malpractice, you may be able to get some decent feedback as to your attorney's performance in regard to your lawsuit.

[chooie]

Originally Posted by las365

This is not something I would ever recommend lightly. You may wish to consult with a legal malpractice attorney.

Why did the first trial end in a mistrial? Was your podiatrist expert allowed to testify as to the orthopaedist's alleged failure to meet the standard of care in the first trial?

It is a general rule of thumb in med mal cases that you have an expert in the same discipline as the accused medical provider testify as to the standard of care and alleged failure to meet it.

As requested before, if you care to provide a brief description of the alleged malpractice, you may be able to get some decent feedback as to your attorney's performance in regard to your lawsuit.

The first trial ended in mistrial because the jury was hung and the judge didn't want to give them another day to deliberate. (they had a day) Turned out to be 10 in my favor 2 undecided.

The case we had was that the podiatrist should never have operated on my foot and should have take a more conservative approach by treating with orthodics (deviation of standard of care). I was encouraged by my orthopedic whom I followed up with for care because of persistent pain to take action because he said it was malpractice. My orthopedic found that the surgery the podiatrist performed caused a non-union of the bone and severe arthritis and nothing could be done to correct it and would only continue to worsen with time. My lawyer said that my orthopedic surgeon was the strongest testimony we had but we also had to get a podiatrist to support the claim because he was the in the same type of profession as the podiatrist we were suing. My lawyer said my expert podiatrist testimony wasn't that strong but that my orthopedics testimony would confirm my expert podiatrists testimony and that orthopedics are considered by far the experts over podiatrists on this matter.

When I was contacted by my lawyer by letter a month before trial he stated that bringing in the podiatrist expert to court could cost between $5000-$8000. Before this I had never received any estimate of charges or been given any cost. I was concerned then and called my lawyer to say I did not have any money to do this and asked why I hadn't been prepared for these costs. (this is 3+yrs into the case) He then sent me an line item list of charges already up to $10,000. Being that we were already in this deep and trial less than a month away, we decided to proceed because my lawyer felt confident.

The second trial the defendant perjured himself on the stand while under oath when the jury were sent out of the room for a break. The judge was very upset, made many threats to throw whatever verdict came out but didn't follow through as he said he needed to investigate further his options with his colleagues. I asked my lawyer to file a post-trial motion because of the perjury and because of the judge's instruction to the jury to not take my orthopedic surgeons testimony as an opinion of standard of care. This was in an attempt to strong arm the defense to come up with some payment of my costs.

Post trial scheduled next month with assurance from my lawyer to not be optimistic.

Final point. I did not give my lawyer cart Blanche to run up a massive bill as if it was my credit card. This has been a painful learning experience. I appreciate any who provide helpful advice.

Post

[lya]

The only suggestion I have is for the OP to file a complaint with the state's attorney bar, complaining that the attorney failed to provide an expert witness of the same practice area and qualifications as the MD being sued for malpractice and asking for a fee negotiation. It is a two-step process and not speedy at all. Once the bar evaluates and opines on the claim of failing to provide the proper expert witness, the OP can request fee negotiation.

In filing a complaint with the bar, I encourage pointing out that it is not difficult to find an expert witness in any field of medicine. An online search will do it.

I'm afraid the OP's medmal claim is based on confusing different treatment options with treatment below the minimum standard of care. One podiatrist may treat with surgery, another may treat with non-invasive measures until such time as surgery is the only recourse.

I'm afraid the OP is going to be making payments to the attorney for a very long time.

[chooie]

Originally Posted by lya

The only suggestion I have is for the OP to file a complaint with the state's attorney bar, complaining that the attorney failed to provide an expert witness of the same practice area and qualifications as the MD being sued for malpractice and asking for a fee negotiation. It is a two-step process and not speedy at all. Once the bar evaluates and opines on the claim of failing to provide the proper expert witness, the OP can request fee negotiation.

In filing a complaint with the bar, I encourage pointing out that it is not difficult to find an expert witness in any field of medicine. An online search will do it.

I'm afraid the OP's medmal claim is based on confusing different treatment options with treatment below the minimum standard of care. One podiatrist may treat with surgery, another may treat with non-invasive measures until such time as surgery is the only recourse.

I'm afraid the OP is going to be making payments to the attorney for a very long time.

I appreciate the response. To clarify, my attorney did also find a expert podiatrist however he felt this expert podiatrists testimony wouldn't be strong enough and was relying on the Orthopedic Surgeon's testimony to win the case. Also, I was informed by my attorney that this was deviation of standard of care. I didn't confuse treatment with malpractice. It was only until we were in court that I learned that there is "No" clear definition of deviation of standard of care and to your point that it is a matter of opinion. Had I'd known "Deviation of Standard of Care" were ambiguous I would not have pursued this case in the first place.