Contingency Fees for 'Medico-Legal Services'

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.

The settlement of this interstate legal quagmire obviated a determination of the legality of the contingency fee contract under New York law. The dispute, however, serves as a warning sign to New York practitioners and those in other states with similar rules who are contemplating participation in or acquiescence to a contingency fee agreement for locating medical expert witnesses. Doing so may lead to an unintended predicament, such as the one confronted by the aforementioned counsel, who was faced with the unenviable position of attacking the agreement he had advised his client to procure. Such a possibility arises from the fact that the law is unsettled in New York as to the validity of contingency fee agreements for locating medical expert witnesses, between medico-legal services and the litigants and attorneys they purport to serve.