The 800-pound gorilla speaks

New York State's highest court, the Court of Appeals, addresses cases that have broad questions of law that affect important state-wide policy and behaviors.

Referral-fee dispute in big medical malpractice case

In an attorney referral-fee dispute, the Court or Appeals did not allow Drucker & Sinel, LLP to avoid paying a referral fee to an attorney who had executed a fee-sharing agreement entitling him to a full one-third of all fees recovered. In an apparent brain-damaged-baby case resulting in a 6.7 million settlement, Drucker argued that the referring lawyer was entitled to nothing because he failed to "notify the client that both firms had assumed joint responsibility for the representation" as required by 1.5(g)(1) of the New York Rules of Professional Conduct. The court said nonsense. The referring attorney complied with his ethical obligations -- apparently not in writing though -- sufficiently to satisfy the ethical requirements contained in that rule. Secondly, the referral agreement was clear in that a full one-third fee was appropriate, even from that portion that was enhanced by way of "extraordinary circumstances" relative to Judiciary Law 474-a. If "by a writing given to the client, each lawyer assumes joint responsibility for the representation," the court stated, attorneys can negotiate the division of fees they deem appropriate.

Equitable Subrogation Issue Revisited

A health insurer's subrogation rights move forward against the difference between the settlement amount and the full coverage policy of a liability insurer. This makes sense. That difference consists of the risk of loss that the insured pays good money for.

Another Med Mal SOL battle

Does an Independent Medical Exam (IME) form a physician-patient relationship so as to invoke the 2 1/2 statute of limitations of CPLR 214-a? Yes, the Court of Appeals says. A "limited one." Even though the facts in the underlying case, Bazakos, involved the doctor pulling the plaintiff's head, which convinced the Appellate Division that it was not "medical treatment," this doctor was performing professional duties as a physician, albeit not as one hired by the plaintiff directly. A professional duty of care was triggered to invoke CPLR 214-a.

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