Idaho Law Blog

Many potential new clients understandably want to know how the lawyer in a personal injury case gets paid.  The same thing is true on medical malpractice cases where injured patients ask about how the attorney for the patient is compensated.  Whether it is a brain injury case, an automobile collision claim, or a medical malpractice lawsuit, lawyers who handle these types of cases on behalf of the plaintiff are typically paid on what is referred to as a “contingency fee” basis.  That is simply a fancy way of saying they are paid on a commission.  Simply put, under this type of arrangement, the lawyer is only paid an attorney fee out of any amount recovered for the client.  The attorney fee is a percentage of the amount collected, with the percentage usually depending on the difficulty of the case and the stage in the process it reaches.  

 

Clients usually want to know what the justification for a continency fee is, in other words why is it fair?  The main alternative to a contingency fee is to pay a lawyer on an hourly basis, which is very expensive, anywhere from, for example, $200 per hour up to $500 per hour our more depending on the location, which can equate to thousands upon thousands of dollars over the course of a case (which is usually how large corporations or big insurance companies pay their teams of multiple lawyers from larger law firms).  Most people understandably cannot afford this, or are simply not in a position financially to where they are willing to pay that much to a lawyer to take on a complex and lengthy case with hundreds or thousands of hours of attorney work.  Another reason for a contingency fee arrangement is that it transfers some of the risk of loss to the lawyer.  In other words, some cases present a risk of loss; nothing is certain in litigation.  An experienced lawyer may be willing to take on that risk in exchange for a percentage of the outcome for attorney fees, rather than have the client pay hourly and risk paying a large amount for attorney fees yet losing the case.  So, the lawyer agrees to potentially get paid later, if successful, in the future, based on an uncertain outcome.  There is also the matter of litigation costs and expenses, such as for expert witnesses, depositions, and trial costs.  These out of pocket costs must be paid as the case moves forward and can amount to many thousands of dollars.  Typically, under a contingency fee arrangement, the lawyer advances these to be paid out of any amount recovered for the client.  So, the continency fee provides some incentive for the lawyer to take on the business risk of advancing these litigation costs.  

 

The bottom line is that contingency fee arrangements allow lawyers to help people who are otherwise not in a position to pay hourly, or who are unable to advance thousands of dollars of litigation expenses and costs, or who cannot incur the financial strain of potentially losing the case.  This type of payment arrangement therefore makes sense and allows ordinary people to take on much larger adversaries who are attempting to avoid reasonability and deny justice based on perceived economic superiority.  Mahoney Law of Idaho has a track record of success in representing ordinary Idahoans wage extraordinary battles.  Call us for a free and confidential consultation.                

A head injury of any type can potentially be devastating and life altering.  We understand that here at Mahoney Law of Idaho.  Our brain injury lawyer will work with you to fully document and present the extent of your injury.  Our concussion attorney will seek assistance from qualified and experienced experts to prove the impact of the concussion on your life.  As a head injury law firm, we work to develop the facts as to why the opposing party was negligent or reckless in causing  your brain injury so you receive the money damages to which you are fairly entitled under the law.  Traumatic brain injury law in Idaho is one of our areas of focus and we have helped clients here in Idaho with all types of TBIs, from concussions to severe blunt force head trauma.  YouTube Video Link:  https://youtu.be/0O3WSemlM9o

In the personal injury context, where the opposing side may be liable to pay money damages for causing an injury, brain injuries can have numerous causes.  There are many different types of brain injury cases, TBI claims, concussion lawsuits, and head injury litigation handled by an attorney.   Car accidents, truck collisions, slip and falls, falling merchandise and falling objects, heavy equipment accidents and the like can all cause serious brain injuries wherein the at fault party may be liable to pay damages in a civil lawsuit brought by a lawyer.  Each case must be investigated and evaluated by the law firm to see if it is meritorious.  Mahoney Law handles all types of head injury, brain injury, TBI, traumatic brain injury, closed head injury, and concussion cases and claims in Idaho.  Working with well qualified neuropsychological experts is a critical part of developing a brain injury claim, whether it be for a severe TBI lawsuit or a concussion insurance claim.   Such experts will perform testing as to various aspects of brain functioning.

 

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Given our vast experience in representing TBI clients, we have learned to disprove several common myths and misperceptions that the defense sometimes tries to raise to deny our clients fair monetary recovery.  For example, it is well established that entire categories of head injuries will not show up on MRI scans, CT imaging, and of course X-ray.  Although somewhat of an oversimplification, this is because the level of the brain damage can be so microscopic that it simply does not show up based on our current brain imaging technology.  

 

Another common myth or misperception we often hear in concussion cases is that there should be a set time after which you should be healed, recovered, and back to normal.  This is not accurate.  Some brain injuries heal quickly, others take a more mid-level amount of time, while other closed head injuries can take years to heal and the victim may even have permanent deficits that are life altering.  There is no correct or normal amount of time for healing from a TBI.  Likewise, the time for healing does not necessarily depend on the perceived severity of the injury.  For example, a closed head brain injury from the brain simply moving violently within the skull may actually take longer to heal than a concussion from a direct force blow to the head.  

 

Speaking of which, another inaccurate assertion we often confront from the defense and insurance companies is that there must be a direct blow to the head, blunt force trauma, for a victim to sustain a brain injury.  This is false.  It is well known that very serious TBIs can be suffered simply from the victim’s head violently moving back and forth or side to side, without actually striking the head, such as may happen to a restrained passenger in a motor vehicle collision.   Simply because you do not have an external bump, wound, or cut on your head does not mean an individual does not in fact have an internal brain injury.  Similarly, there does not have to be a loss of consciousness (LoC) for there to be a very real brain injury.  

 

To recap, a brain injury victim may be clinically diagnosed with a TBI despite normal imaging, with no loss of consciousness, with no direct blow to the head, and may have a protracted recovery period or may have permanent impairment.  Brain injury law involves recognizing these issues and assisting our clients accordingly.  

 

A concussion, brain injury, TBI, closed head injury, or the like can affect the victim’s work, personal relationships, hobbies, activities, and day to day enjoyment of life.  The symptoms can be overwhelming and debilitating, and can include some or all of the following:

·      Headaches

·      Dizziness

·      Vertigo

·      Balance problems, unsteadiness

·      Audiology problems, ringing in ears

·      Memory issues, recall problems

·      Speech and language issues such as word finding 

·      Light sensitivity

·      Blurry vision

·      Sleep issues

·      Nausea and vomiting 

·      Confusion

·      Motor functioning impairments, trouble walking 

·      Temperament changes, emotional changes, anger issues

·      Executive functioning limitations 

·      Problem solving impairments 

 

Under Idaho law, we work to obtain full compensation for our concussion injury clients.  We work with appropriate experts to obtain neuropsychological testing to document the extent of the issues our TBI clients face.  If the brain injury has caused a loss of income and time off work, and potentially future employment impairment, we work with qualified vocational and economic experts to document this to recover this important component of damages on our head injury cases.  We place the largest emphasis on what are referred to as general damages, in other words the human harms and losses that closed head injury victims suffer.  From physical pain, to emotional difficulties, to impaired relationships, to a very real impact on the enjoyment of day to day life, we communicate with you so as to be able to show the opposing side and jury at trial this, the largest part of the damages. 

 

Mahoney Law has successfully represented brain injury victims in Idaho.  In one case, a bundle of boards fell on our client’s head at a large home improvement store.  The victim was diagnosed with a traumatic brain injury and suffered ongoing balance problems.  In another case, our client was rear-ended at a stop sign before an intersection.  The opposing driver was in a large fuel truck that slid on ice while the driver was on his cell phone.  Our client sustained a severe head injury due to the force of the impact and suffered from memory loss, headaches, and emotional difficulties.  Both of these cases were settled for substantial dollar amounts after we properly investigated the liability facts and proved our client’s physical and mental damages.  We have handled numerous other brain injury related claims here in Idaho. 

  

If you, a family member, friend, or loved one is in need of legal help for a brain injury, concussion, closed head injury, head injury, or TBI, please reach out to Mahoney Law here in Idaho.  We have been compassionately serving Idahoans for 25 years.  Sometimes these cases can be settled before a lawsuit is filed.  As a brain injury law firm, we work directly with the at fault party’s insurance company to secure you full and fair recovery to the maximum extent under the law.  Sometimes, however, a lawsuit is necessary as the opposing insurance company may undervalue our client’s claim.  As a concussion law firm, we are ready, willing, and able to litigate your case for full justice through a head injury lawsuit.   https://www.patrickmahoneylaw.com/areas-of-practice/personal-injury-attorney 

 

 

Here are links to brain injury resources:

https://www.biausa.org  Brain Injury Association of America

 

Idaho’s two largest hospital systems have traumatic brain injury and concussion programs:

https://www.saintalphonsus.org/specialty/orthopedic-care/services/sports-medicine/concussion-program

https://www.stlukesonline.org/health-services/specialties/programs/traumatic-brain-injury-program

 

https://www.mayoclinic.org/diseases-conditions/traumatic-brain-injury/symptoms-causes/syc-20378557  The Mayo Clinic on traumatic brain injury symptoms and causes 

 

https://www.cdc.gov/traumaticbraininjury/index.html  The CDC on traumatic brain injuries 

Idaho's statutory "cap" on non-economic damages is here: https://iic.idaho.gov/non-economic-damages-cap/

 

It is currently $386,622.39 and amounts to a government imposed limit, sought after by the insurance industry, on the freedom to have a jury decide the limit for injury victims here in Idaho.  Absent a showing of reckless conduct, discussed below, special interest lobbies in Idaho have thus limited pain and suffering for someone, by way of example, paralyzed for life by another’s negligence to about $380,000 under the current formula. This is immoral and unjust as that figure comes nowhere close to the fair-trade value for such harm.  Absent a showing of recklessness, for another example, a family who loses their young child due to negligence of another is limited to $380,000 per claimant for loss of a loved one.  This is inhumane as that figure does not remotely balance the scales of justice for such a loss.  What those who insure and defend negligent actors have attempted to do is take from Idaho citizens the right to dole out justice in accordance with the true human harms and losses.  What this has really done, as discussed below, is shift the margin of debate to the issue of reckless conduct.   

 

 

The cap applies on a per-claimant basis, in other words, to each plaintiff separately.  Historically, the defense industry in Idaho had taken the loathsome position that the cap was per lawsuit, regardless of the number of injured victims.  It took a trip to the Idaho Supreme Court to set the insurance industry straight on what was obvious to reasonable individuals from the start of this very unreasonable limit on jury damage awards.

 

The cap is lifted and does not apply in cases where reckless conduct is shown and found by the jury at trial, as per Idaho Code §6-1603.  In this sense, the cap really is not a cap at all in the event there is reckless conduct at issue.  In cases where there is reckless conduct, it is a misrepresentation for the defense to claim that the "cap" is the "maximum allowed" by law.  If the cap is lifted, there is no maximum.  The days have long past where cases are settled without the defense paying a premium on cases where there is a material likelihood a jury will find reckless conduct, given the enormity of exposure such a finding poses for the defendant (possibly in excess of the defendant's liability insurance policy limits).  

https://legislature.idaho.gov/statutesrules/idstat/Title6/T6CH16/SECT6-1603

 

Idaho Code §6-1601(10) defines reckless conduct as "conduct in which a person makes a conscious choice as to the person’s course of conduct under circumstances in which the person knows or should know that such conduct both creates an unreasonable risk of harm to another and involves a high probability that such harm will actually result."   https://legislature.idaho.gov/statutesrules/idstat/Title6/T6CH16/SECT6-1601/

 

The Idaho Supreme Court has routinely upheld cases wherein Idaho's cap on general damages was lifted by the jury finding reckless conduct in cases involving medical malpractice and personal injury.  Of course, given the facts, juries are willing to label reckless conduct as such, and award far in excess of the artificial damages limit set by statute as a result of special interest lobbies, ranging from liability insurers, healthcare insurers, and hospital and healthcare associations – which is really what the arbitrary statutory cap was designed to protect at the expense of victims of negligent conduct. There have been numerous cases in Idaho wherein juries have sided with claimants found reckless conduct, such that the statutory cap on general damages was lifted, including in reported cases with total damages ranging from $3 million to nearly $8 million.  So, although insurance companies, corporations, hospitals, and healthcare providers often like to invoke and hide behind what is really an immoral and inhumane statute, all the while claiming to be benevolent, Idaho juries are not afraid to do the right thing and find reckless conduct where the facts support it, especially in the medical malpractice and serious personal injury context.  

Clients and prospective clients often ask us, “are medical malpractice cases hard to win?”  “Can I win a medical malpractice case at trial?”  Or, “I heard medical malpractice cases were impossible for a patient to win, is this true?”  While there are many different ways to go about analyzing the answers to these questions, and no approach is perfect, one way is to review the medical malpractice verdict results in Idaho over time.  

 

Going back over approximately the last fifteen years, we find numerous plaintiff-patient medical malpractice verdicts for substantial dollar amounts.  Since 2005, there have been 21 reported medical malpractice jury trials in Idaho, in venues all over the state.  13 of those were for the plaintiffs.  8 of those were defense verdicts.  Based on this data, albeit a small sample size and albeit a review of only those cases that have actually gone to trial, plaintiffs (patients) are, on average, winning these cases at trial more than they are losing them, at approximately a 62% win rate.  The dollar amounts are also relatively large, ranging from $600,000 on the low end to $7.9 million on the upper end.  

 

Looking at this data set, the conventional wisdom that these cases are impossible for plaintiffs, or even harder than average for plaintiffs to win, is simply not accurate, and the assertion that Idaho has low dollar amount verdicts in these cases is demonstrably false.  All too often the defense inaccurately takes the position that these cases are hard to win in Idaho as a general matter.  Such an inaccurate risk assessment may result in the defendant healthcare provider later finding themselves subject to a substantial verdict and judgment.  A high dollar money judgment can possibly be excess of the healthcare provider defendant’s medical malpractice liability insurance policy limits -- a scenario that raises questions about conflicts of interest on the part of insurance defense counsel and bad faith conduct on the part of the insurance company.

 

Dollar amount of plaintiff verdicts in medical malpractice cases in Idaho by venue and date:

 

10/19: Idaho Falls $893,422

2/19: Ketchum $619,000

4/18: Idaho Falls $7.9 million

2/18: Boise $2.2 million

5/17: Boise $632,000

6/16: Twin Falls $3.8 million

9/14: Boise $3.7 million

8/14 Boise $1.1 million

11/13: Boise $1 million

10/11: Coeur d’Alene $760,000

4/09: Caldwell $4.2 million

4/06: Boise $6 million

Medical malpractice birth injury lawyer and attorney services are provided by Mahoney Law throughout Idaho.  If you or a loved one has experienced problems with labor and delivery resulting in injury to the newborn baby, we may be able to help.  Medical malpractice in labor and delivery takes many forms.  First, there can actually be medical malpractice by the doctor, nurses, midwife, or hospital in the prenatal phase of pregnancy that harms the fetus leading to a birth injury or, sadly, even death.  Second, there can be medical malpractice during the labor committed by the doctor, nurses, midwife, or hospital that causes injury or death to the unborn baby.  Third, there can be medical malpractice during the delivery itself that harms the baby, sometimes in the form of traumatic injury or in the form of ischemic or anoxic injury from a lack of blood flow or oxygen to the baby.  Fourth, there can also be medical malpractice in the post-natal phase, either in the NICU or in the newborn nursery that results in preventable harm to the newborn.  As birth, labor, and delivery medical malpractice attorneys, we review the prenatal records, the labor and delivery records, and the neonatal records for signs of malpractice.  We analyze the health of the fetus and the mother as the process unfolded.  We understand the physiology of the baby and the mother during labor and delivery and how signs of trouble are supposed to be monitored by the healthcare providers.  As medical malpractice birth lawyers, we investigate cases with the help of highly qualified experts to determine if, in certain cases, a cesarean section needed to be done in a timely manner, the failure to perform which may have resulted in preventable brain injury to the baby.  Please reach out to us here at Mahoney Law if you would like us to professionally and confidentially review a potential labor and delivery birth related medical malpractice case.  

 

Here are some key details and quick facts on birth related medical malpractice cases in Idaho. The time deadline, known as the “statute of limitations,” is usually two (2) years from the date of the malpractice.This deadline is different with minor children who, in a case wherein the negligence was at birth, may have up to eight (8) years depending on the situation, however the parents still usually only have two (2) years within which to take legal action on a labor and delivery malpractice claim.  Also, Idaho statutes require that certain paperwork be filed with the Idaho Board of Medicine before a lawsuit is filed, called a prelitigation screening panel application.  If there is a governmental entity involved, such as a county hospital for example, Idaho law may require that a “notice of tort claim” be filed within 180 days; this may be longer with minor children.  The deadlines in each case are specific and you should consult legal counsel if you would like to explore bringing a labor and delivery related medical malpractice claim.

 

Another important part of a labor and delivery medical malpractice case is for the attorney to prove that the healthcare provider violated the applicable standard of care.  The medical malpractice lawyer in a labor and delivery case must comply with Idaho Code Section 6-1012 and 6-1013 with respect to expert testimony to show that the defendant was negligent and perhaps even reckless in rendering care or in failing to render care.  Mahoney Law, PLLC of Idaho works with high level experts in evaluating birth injury cases.     

There are many different types of labor and delivery birth medical malpractice claims that a qualified medical malpractice lawyer and attorney may help you with.  Some examples are: 

--lack of oxygen during labor and/or at birth

--lack of blood flow during labor and/or at birth

--hypoxic ischemic encephalopathy (HIE)

--shoulder dystocia

--forceps injury or trauma

--vacuum injury or trauma

--injuries in the NICU

--improper fetal heart rate monitoring

--improper use of Pitocin or other labor inducing drugs

--placental abruption and other placental complication

--umbilical cord complications 

--failure to perform a timely cesarean section

--doctor labor and delivery medical malpractice 

--nurse labor and delivery medical malpractice

--midwife labor and delivery malpractice

--hospital labor and delivery medical malpractice

--neonatal resuscitation team medical malpractice

--neonatal cooling and HIE

--newborn brain injury

--stillbirth / stillborn

--other birth related medical malpractice conditions 

 

Here are some answers to common questions on medical malpractice birth injury and labor and delivery cases.  Is medical malpractice difficult to prove?  Sometimes yes, sometimes no.  Your medical malpractice birth injury labor and delivery lawyer will first review your situation to see if a birth injury or labor and delivery lawsuit is warranted.  How much is a medical malpractice lawsuit worth?  This varies greatly depending on how strong the case is on liability, i.e., on proving the care provider was negligent and committed malpractice.  This also varies greatly depending on the significance of the harms and losses suffered by the patient.  In the final analysis, if a case does not settle, the jury gets to decide based on the law as instructed by the court.  What is considered medical malpractice?   Medical malpractice, including in the childbirth labor and delivery context, is a healthcare provider’s failure to meet the applicable standard of care.  Can you file a medical malpractice case without a lawyer?  The answer is yes, with a huge “but.”  But, it is highly unadvisable.  Medical malpractice cases are complex and time consuming, particularly child birth labor and delivery birth injury cases, so going it alone is not advisable.  It is best to have a birth case lawyer review your case for an accurate attorney evaluation.

 

The Process of a Birth Labor & Delivery Medical Malpractice Case:  While each birth injury case is unique and requires personalized time and attention, there are some basic, general steps that apply in most cases:

 

Step 1: Initial Consultation — No Charge, No Obligation

  • You tell us what happened during the pregnancy, labor, delivery, and in the hospital after delivery.

 

Step 2: We Gather & Analyze Medical Records

  • Next, we gather all of the medical records from the pregnancy, labor, delivery, and subsequent hospitalizations.
  • We review and analyze the pre-natal records, the ultrasounds, the fetal heart rate monitor strip, the doctor’s progress notes, the nurse’s labor and delivery notes, and the hospital records.

 

Step 3: Expert Review

  • We pay, at our expense to have medical experts (doctors and nurses) review the case to determine if the case has merit

 

Step 4: We Advise You Of Our Findings

 

Step 5: If The Case Has Merit

  • In meritorious cases, we next proceed to make a medical malpractice claim against the doctors, nurses, hospital, and/or other responsible healthcare providers. Often, this involves filing certain paperwork with the state board of medicine and then filing a lawsuit.
  • Once a lawsuit is filed, we proceed to use the formal discovery process to learn all the necessary factual information.
  • Then, if the opposing side will not settle, we proceed to try the case to a jury.

 

How Long Does All This Take?

 A birth injury medical malpractice case is a very serious, time-consuming process. Anyone who tries to tell you otherwise is not being honest – there is no such thing as a “quick settlement” with these cases. In order to obtain the maximum amount of money damages possible, we must perform a thorough evaluation and workup of your case. If the case proceeds to litigation, that can be very time consuming as well. But, if you think of the lifetime of disability and impairment that a family will live with as a result of the medical malpractice, the time it takes to properly obtain the money damages to which the family and child are rightfully entitled is relatively short.

 

How do I hire a lawyer for a medical malpractice case?  How do I retain an attorney to review a labor and delivery lawsuit?  What is the process for having a law firm evaluate a birth injury case?  These are frequently asked questions as to medical malpractice in terms of reaching out to a lawyer on a childbirth case.  The first step is easy, simply call or email us.  We will carefully and attentively listen to the facts of your situation.  We understand that most people have never had to speak with a lawyer or hire an attorney before and that it can be intimidating.  Again, simply call or email us and we will evaluate your situation free of charge and totally confidentially.  Sometimes, we can tell right away if there is a potential case or if the caller would be better off going a different direction.  If we think there might be a claim, we will either gather the medical records ourselves or have you obtain them for us.  Again, this is free of charge and confidential.  If we need to, we will also consult with experts.  If we think there is a case and would like to take on representation, we will enter into a clear, concise, easily understood written agreement that sets forth our contingency fee compensation and the like whereby there are no attorney fees unless we win by settlement or verdict and then our compensation is a percentage of the monetary recovery.  We do not pressure you to sign anything and welcome questions and concerns.  If you or a loved one think there may have been malpractice as to childbirth, labor, delivery, neonatal resuscitation, in the NICU, or otherwise, please do reach out to us – we are understanding, compassionate, and, above all, we listen. 

 

 

What types of damages may be recovered in a medical malpractice case involving labor and delivery?  Childbirth cases involve several major categories of money damages.  In a birth injury case, there are damages for future care, sometimes outlined in a future life care plan.  There are damages for past medical bills, sometimes for a lengthy NICU stay.  Both the child and parents may be entitled to significant damages for pain, suffering, and loss of enjoyment of life, the human intangible losses can be enormous.  Consideration also must be given for loss of income on the part of the child and parents.  In some cases, all of these damages can total many millions of dollars.   Proceeds from a settlement or collected verdict may be invested in a special court approved trust account for the benefit of the child, to be used only for necessary expenses.  

 

 

Once a birth injury lawsuit is filed in court, the formal litigation process begins.  Each side in the childbirth medical malpractice lawsuit will exchange written information requests, referred to as discovery requests.  Depositions (statements under oath) will be taken of relevant witnesses.  Expert witnesses in the field of labor and delivery malpractice will be disclosed by each side, and their depositions may be taken.  Evidentiary motions may be filed.  A jury trial may can take roughly two to four weeks, depending on the court’s daily trial schedule.  A party may have a right to appeal following trial.  This process is not quick; it can take several years, but viewed in perspective it is short relative to the lifetime of disability that a birth injury can inflict on both the child and family.   

For a free, no obligation consultation with Mahoney Law