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Christi Anne Polo v. Gotchel

July 10, 1987

CHRISTI ANNE POLO, A MINOR BY HER MOTHER AND GUARDIAN AD LITEM, BARBARA (POLO) SHIPLEY AND BARBARA (POLO) SHIPLEY, INDIVIDUALLY, PLAINTIFFS,
v.
RICHARD P. GOTCHEL, M.D., JACQUELINE G. COANT, M.D. AND UNDERWOOD HOSPITAL, JOINTLY SEVERALLY AND/OR IN THE ALTERNATIVE



Barry M. Weinberg, P.J. Cv.

Weinberg

Plaintiff, Christi Ann Polo born June, 1972, resides at Pleasant Manor School in Pennsylvania, a twenty-four hour care facility for children with special needs. Barbara Shipley, plaintiff's natural guardian, instituted this medical malpractice action against the delivering obstetrician, seeking compensation for said plaintiff's injuries.

Plaintiff's guardian, upon the recommendation of counsel, engaged the services of a medical-legal consulting service, JDMD, Inc., to assist in locating medical experts to review and provide opinions and to testify as to the medical aspects of the litigation.

An agreement for forensic support prepared by JDMD, Inc., was executed by the guardian, her attorney and JDMD, Inc. The agreement set forth a schedule of fees and charges payable to JDMD, Inc. The various costs included those to be incurred by an expert's participation in reviewing plaintiff's medical information, being deposed, and testifying, computed at an hourly rate.

The method of payment for services followed a two step process. The first step includes an initial service charge of $500.00 which becomes due and payable when the attorney requests the identity of the expert. If additional or substitute experts are provided, an additional $200.00 is charged. The second service charge provides for a 6% contingent fee on the gross recovery upon successful disposition of the case, be it settlement or verdict.

The provisions of the agreement require plaintiff's attorney to act as guarantor of the contingent fee payment to JDMD, Inc. This contingent fee, payable by the client, is in addition to the attorney's contingent fee.

Medical information and records of the client were delivered to JDMD, Inc., by plaintiff's attorney. Thereafter, an expert selected by JDMD, Inc., reviewed and evaluated the medical information and rendered a report which included the expert doctor's opinion regarding the alleged malpractice. The report was then forwarded to plaintiff's counsel, along with recommendations by JDMD, Inc., regarding the merits of the claim.

The medical malpractice issues were compromised and a settlement was accomplished.

The issue before this court is the validity of the contingent fee agreement of JDMD, Inc., in light of the prevailing court rules, statutes, and public policy of the State of New Jersey.

This litigation presents a case of first impression in New Jersey. However, this factual pattern was addressed by the New Jersey Advisory Committee on Professional Ethics in Opinion 562, 116 NJLJ Index page 202.

Commenting on an inquiry based on a similar set of facts, the Advisory Committee answered the inquiry by first reviewing the Ethical guidelines of the medical profession. The Advisory Committee referred to the Current Opinions of the Judicial Council of the American Medical Association, 1984, Section 8.04 titled "Contingent Physicians Fees: Prohibition."

Section 8.04 specifically outlines the policy doctors should adhere to concerning contingent fee agreements. This section clearly enunciates the public policy that doctor's fees should not be based on an uncertain outcome of a contingency, the underlying public policy being the danger of the physician becoming more of an advocate and less of a healer. A doctor's fee should be calculated only on the value of the ...


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