Fees in medical malpractice were lowered many years ago in hopes of curbing the "medical malpractice plague."  Our view is that the AMA has found that there are an incredible number of medical malpractice mistakes, and that litigation is the only way for a damaged patient to obtain reasonable compensation.

Whether you agree with that position or not, it’s clear that the artificially depressed fee structure has engendered some problems for attorneys who practice in this field.  Urias v Daniel P. Buttafuoco & Assoc., PLLC  2014 NY Slip Op 06198  Decided on September 17, 2014  Appellate Division, Second Department is one example.  Matter of Harley, 298 AD2d 49 (2002) and Matter of Cousins, 2010 NY Slip Op 07413 [80 AD3d 99] are others.

In  Urias, "The plaintiff, Delfina Urias, individually and as guardian of her husband, Manuel Urias, commenced a medical malpractice action against the healthcare professionals and providers responsible for treating him. The defendant Daniel P. Buttafuoco & Associates, PLLC (hereinafter the Buttafuoco Firm), represented the plaintiff in the underlying medical malpractice action. On April 2, 2009, shortly before the trial was to begin, the medical malpractice action was settled in open court for the sum of $3,700,000, and the liability was allocated among the various defendants in that action. On July 20, 2009, counsel for the parties to the medical malpractice action appeared before the Supreme Court, Suffolk County, in connection with a proposed change to the terms of the settlement. At that conference, the court, inter alia, approved the award of an attorney’s fee to the Buttafuoco Firm in the sum of $864,552. To calculate the attorney’s fee, the Buttafuoco Firm applied the "sliding scale" set forth in the retainer agreement and in Judiciary Law § 474-a(2) to each individual medical malpractice defendant’s settlement amount, rather than the total settlement amount, which resulted in a larger attorney’s fee for the Buttafuoco Firm. The Buttafuoco Firm later reduced its attorney’s fee to $710,000.

Meanwhile, the plaintiff retained the defendant John Newman to represent her in a proceeding in the Supreme Court, Nassau County, to appoint a guardian on behalf of Manuel Urias and to obtain approval of the settlement in the medical malpractice action. The plaintiff complained to Newman about the manner in which the Buttafuoco Firm calculated its fee. Subsequently, Newman moved for approval of the medical malpractice settlement in the guardianship proceeding. In an order dated October 27, 2009, the Supreme Court, Nassau County, among other things, denied approval of the settlement and the attorney’s fee, without prejudice to reconsideration, and directed that the issue of the Buttafuoco Firm’s attorney’s fee be revisited by the Supreme Court, Suffolk County. Newman then moved in the Supreme Court, Suffolk County, to confirm the amount of the attorney’s fee awarded to the Buttafuoco Firm. In an order dated March 24, 2010, the Supreme Court, Suffolk County, formally approved the attorney’s fee as previously calculated. Thereafter, in an order dated June 7, 2010, the Supreme Court, Nassau County, in the context of the guardianship proceeding before it, approved the settlement agreement and the attorney’s fee awarded in the malpractice action.

In 2011, the plaintiff commenced the instant action against Newman, as well as the Buttafuoco Firm, the related law firm of Daniel P. Buttafuoco, LLC, and the Buttafuoco Firm’s principal attorney, Daniel P. Buttafuoco (hereinafter collectively the Buttafuoco defendants), inter alia, to recover damages for legal malpractice. The Buttafuoco defendants and Newman separately moved pursuant to CPLR 3211(a) to dismiss the complaint insofar as asserted against each of them."

"Here, construing the complaint liberally, accepting the facts alleged in the complaint as true, and according the plaintiff the benefit of every possible favorable inference, as we are required to do, the plaintiff stated a cause of action to recover damages for legal malpractice against Newman and the Buttafuoco defendants (see Endless Ocean, LLC v Twomey, Latham, Shea, Kelley, Dubin & Quartararo, 113 AD3d at 589; Palmieri v Biggiani, 108 AD3d 604, 608). Newman’s contention, in effect, that his failure to object to the attorney’s fee awarded to the Buttafuoco Firm was not a proximate cause of the plaintiff’s damages, and that he did not depart from the accepted standard of care, concern disputed factual issues that are not properly resolved on a motion to dismiss the complaint pursuant to CPLR 3211(a)(7)."