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Contingency Fees for 'Medico-Legal Services'

By William Ramos

Lawyers are routinely called on to apply their expertise to effectively evaluate and litigate cases. When lawyers do not possess the expertise themselves, they must seek others for assistance. To satisfy this need, a number of legal consultation organizations have been formed in recent decades, particularly to service the medical malpractice field. Usually for a contingency fee, such 'medico-legal services' locate expert witnesses, help prepare the experts to testify, and consult with counsel to aid in those aspects of the lawsuit which require expert knowledge.

In a recent case in which this author was involved as a court attorney, when the New York medical malpractice action settled without a trial, the plaintiffs refused to pay the agreed contingency fee to the consulting firm for, inter alia, obtaining medical expert witnesses. The medico-legal services organization sued the plaintiffs and their attorney in the firm's home state, Virginia, pursuant to the forum-selection clause of the agreement. The plaintiffs, through the same attorney who represented them in the settled medical malpractice action, responded by commencing an action in New York Supreme Court, seeking a declaration that the contingency contract between the consulting firm and the litigant and attorney they purported to serve, violated New York public policy and was, therefore, unenforceable.

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