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2004 SESSION

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040884776
SENATE BILL NO. 415 Offered January 14, 2004 Prefiled January 14, 2004 A BILL to amend the Code of Virginia by adding a section numbered 8.01-581.15:1, relating to medical malpractice; attorney fees. ---------- Patrons-- Newman and Bolling; Delegates: Bryant and Byron ---------- Referred to Committee for Courts of Justice ----------

Be it enacted by the General Assembly of Virginia:

1. That the Code of Virginia is amended by adding a section numbered 8.01-581.15:1 as follows:

§ 8.01-581.15:1. Limitation on attorney fees.

Notwithstanding a contract between a claimant and an attorney or any other laws of the Commonwealth, the following provisions shall govern attorney fees for medical malpractice actions.

1. Except as provided in subdivision 3, an attorney who represents a claimant in a medical malpractice action shall not receive attorney fees for the representation that exceed the amounts set forth in the following fee schedule ("schedule"): (i) 40 percent of the first $50,000 of the sum recovered; (ii) 33 1/3 percent of the next $50,000 of the sum recovered; (iii) 25 percent of the next $500,000 of the sum recovered; and (iv) 15 percent of any amount greater than $600,000 of the sum recovered. For the purposes of this subsection, "schedule fee" means the fee for legal services established by the schedule.

2. For the purposes of this section, "sum recovered" means any award of funds to the plaintiff resulting from trial, settlement, or arbitration of the action, less any expenses for expert testimony and investigative or other services properly chargeable to the action, but including any lien, assignments, or claims in favor of hospitals, for medical care or treatment, or of self-insurers or insurance carriers. If any portion of the sum recovered is in the form of future, periodic payments, such payments shall be reduced to their present value for purposes of calculating the schedule fee.

3. The plaintiff's attorney may apply to the court for compensation in excess of the schedule fee. The application shall be filed no later than 21 days after the trial, settlement, or arbitration has concluded with an award to the plaintiff, and shall be filed in the court in which the action is pending. Such application shall be in the form of an affidavit to the circuit court judge who is hearing the action, or, if no judge has been assigned, to the chief judge of the circuit court. The affidavit shall (i) list the sum recovered and the amount of damages sought in the action; (ii) list the schedule fee, the fee that would result from a fee agreement in existence between the attorney and the plaintiff, and the fee sought in the application; (iii) detail the basis for the additional compensation with reference to the factors identified in subdivision 4; and (iv) state whether, to the best of the attorney's knowledge, the plaintiff opposes the fee sought in the application. The attorney shall certify that a copy of the affidavit and a notice of hearing on the fee amount have been served on the plaintiff and on any other parties to the action. Such notice of hearing shall advise that the plaintiff or other party (i) has 21 days after the date of certified service to file a written response to the affidavit and (ii) may appear at the scheduled hearing.

4. Factors that the court may consider in awarding a fee amount in excess of the schedule fee may include, but are not limited to (i) the complexity of the issues presented; (ii) the legal expertise demanded by the case; (iii) the length of any trial, arbitration, or settlement negotiations; (iv) the extent to which taking on the representation precluded the attorney from taking on other cases; and (v) extensive discovery or other pretrial preparation. The court also shall consider the extent to which the award, less any legal expenses or legal fees, sufficiently compensates the plaintiff for the injury suffered.

5. No later than 21 days after any hearing, the court shall order the compensation that shall be awarded to the attorney. Any award ordered in excess of the schedule fee shall not exceed the fee agreed to in any fee agreement in existence between the attorney and the plaintiff.

6. This section shall govern those actions for medical malpractice that accrue on or after July 1, 2004.