Defendant not responsible for payment of proportionate counsel fees on award of future medical damages pursuant to Mcare Act. Amount owed plaintiff's counsel if plaintiff dies before payment of all future periodic payments remains question of first impres

On January 18, 2008, a jury awarded a medical malpractice plaintiff a gross verdict in the amount of $3,973,000, which was molded to $2,582,450, taking into account the plaintiff's 35% contributory negligence. The jury awarded future medical expenses, payable over five years, and after reduction due to contributory negligence, the amount owed was $110,500 yearly, or $27,625 quarterly. Post trial motions followed, and while they were still pending, the plaintiff died on May 23, 2009. The plaintiff's death terminated periodic payments not yet due for medical expenses. As a result, the plaintiff was entitled to only six quarterly payments of future medical expenses, totaling $167,750, plus interest and not the remaining future medical expenses of almost $385,000. Plaintiff's counsel sought payment by the defendant, as an additional recovery, the proportionate share of counsel fees and costs based upon present value of future medical damages to be paid. The court held that the MCare Act does not provide that the adverse party is responsible for the payment of counsel fees as an additional recovery, but merely directs the manner in which the funds are to be distributed. The court, noting as an issue of first impression, declined to rule whether plaintiff's counsel was entitled to the proportionate share of counsel fees and costs based upon the entire payment, over five years, of $110,500 yearly, or alternatively, the reduced amount actually owed as a result of the death of the plaintiff prior to the expiration of the five-year period. As noted by the court, this issue creates a potential conflict of interest between the plaintiff and her counsel.

Case Law Alert - 3rd Qtr 2011