Preferential Treatment, page 3
“I know it sounds like a lot, Fred, but we don’t think you should take it. I’m pretty sure we can get you more.” Fabian hurried to explain to his client why the offer should be rejected. “After our fees come out and our expenses are paid, you won’t have a whole lot left—surely not enough to compensate you and June for what you folks have been through.”
“How much would we get after you get paid?” asked Hanratty, unprepared for what he was about to hear. He knew lawyers didn’t work for free, but he didn’t remember nor appreciate the method by which the fee was to be computed. While he recalled having signed a paper that Fabian had grabbed from his desk drawer on his first visit to the lawyer’s office, its contents were now a blur. At the initial visit, only weeks after his daughter’s death, what mostly was on Hanratty’s mind was finding out why his daughter had suddenly died and whether something or someone could have prevented her death.
The grief stricken couple had been drawn to Fabian’s law office by a television advertisement they had seen while watching the evening news. A kindly, middle-aged man with an impeccably groomed silver mane appeared on the screen. A bank of austere looking law books provided an impressive and lawyerly backdrop:
Have you or a loved one been injured by a careless doctor? If you believe you or a member of your family has been a victim of medical malpractice, call us first. We will investigate your case, and, remember, there’s never a fee unless we get money for you!
As the kindly gentleman, an actor by profession, faded to black, Fabian Law Firm, Trial Lawyers, flashed across the screen. Below the firm name was the toll-free telephone number, “1-800-555-4LAW.”
The next morning the naïve Fred Hanratty had called Fabian’s office and scheduled an appointment. At the time, he had no intention of filing a medical malpractice case against his daughter’s pediatrician. He merely wanted to have this law firm do what it said in the television ad it could do—investigate the reason for his daughter’s death. From the pulpit of the Church of Christ, he was taught that it was against God’s word to sue anyone for anything under any circumstance. Nevertheless, his curiosity about the events surrounding his daughter’s death and his profound anger toward anyone who may have caused it, overcame his church’s Christian dogma and led him to Fabian.
That afternoon, after the couple haltingly told a very sympathetic lawyer the heart-wrenching story of their daughter’s illness and death, Fabian quickly decided to investigate the case. He could sense a good malpractice case when he saw one, and he didn’t want to let this one get away. All he needed to seal the deal was to get the Hanrattys to sign his contingent fee contract.
While he always felt uncomfortable having to explain to his clients the terms of these fee contracts, Fabian performed his routine of painstakingly going over the contract line by line with June and Fred prior to their signing.
The Hanrattys, like most of Fabian’s new clients, had never been in a lawyer’s office in their lives—an intimidating experience in and of itself for most. Their anxiety was compounded by their confusion about what they could and should do if their lawyer found out that the doctor or hospital had caused their daughter’s death.
Since Fred Hanratty’s income was meager, to say the least, he was lured into Fabian’s office by the catchy and fetching phrase in Fabian’s ads, “No fee unless we get money for you.” Of course, the trade-off for the generous-sounding offer was that under the contingency fee contract, a healthy chunk of a successful recovery would be paid to Fabian. That amount, standard in the plaintiff injury practice, was 33 1/3 % if the case were settled prior to filing suit, and 40% if settled or tried after the filing of suit. After case expenses were paid, it was not unheard of for the clients to receive less than half of the total received.
Oftentimes, however, by the time the case was concluded and the receipt of money became a reality, the clients had forgotten the financial obligations upon which they had agreed when the contract was signed, let alone their initial misgivings about suing. Sometimes a client would be not only surprised, but outraged, by what his share of the settlement or jury verdict would actually be after the law firm took its cut. Fred Hanratty, Fabian feared, could be shaping up to be one of these clients.
“You remember the fee contract you and the missus signed in my office when we first met?” Fabian began patiently. “I gave you a copy of it before you left that day.”
“Yeah, I remember it, but I don’t really remember what it said exactly—somethin’ ‘bout a third that you get if you get a settlement.”
Fabian gritted his teeth. “The fee is forty percent of the total. The third was if we got the case settled before we filed suit in court. Suit was filed long ago, as you know. Under the contract ...”
“I thought that forty percent was if we had to go to court—to trial,” Hanratty interrupted.
“No, Fred. I’m sorry if you were confused on that point. I may not have made it as clear as I should have. The forty percent kicks in when the case is filed in court. Once the suit is filed, that’s when we start spending a lot of money and the real work begins, including going to trial if necessary. That’s why we increase the percentage if we can’t settle before we file the case. If you recall, I told you at our first meeting that malpractice cases rarely get settled before suit is filed, and usually they don’t get resolved until right before trial, if they get settled at all. As I told you, many of them go to trial.”
“So how much will we get?” a skeptical Hanratty asked.
“My fee on two hundred fifty thousand is one hundred thousand,” Fabian began to explain. “Then we have to deduct the amount we’ve put out on the case for all the expenses we’ve incurred—you know, the expert fees for the doctors and the economist that we had to hire. We also have all the travel expenses to get to the different places where our experts and the defense experts were located so we could take their depositions. There were airline tickets, hotels, meals, court reporter fees for the transcripts of all the depositions we took—those kinds of things. My office investigated this case for almost two years before we filed it, and it has been in litigation for almost three years. The expenses are high!”
“How much do you reckon we’re talking about?”
“I don’t have an exact figure with me, Fred, but my guess is we’re in for about $75,000 at this point.” Fabian knew it was better to ere on the high side. “So, if you tell me to take the $250,000, with my fees and expenses of roughly $175,000 taken out …well, you can do the math.” Fabian waited.
Hanratty did a quick calculation. “That don’t leave us with much then, does it?” a disappointed Hanratty asked.
“That’s why I said two hundred fifty thousand is not nearly enough for you, Fred,” Fabian said in a consoling tone. “I’m pretty sure I can get you more, if you’ll let me try.”
“Me and the wife really don’t want to go to trial if we don’t have to,” muttered a subdued and disappointed Hanratty.
“I don’t blame you, Fred. Let me do this—let me play some poker with the insurance company’s lawyer. I’m almost certain I can get him up some more. If I can get him to, say, $500,000, how would that sound to you?”
“Whatever you think,” said Hanratty with hopeful resignation. “We’ll leave it up to you to do what’s best.”
“Okay,” a relieved Fabian said. “I’ll be back to you, with a little luck, by the end of the day. Bye.”
Fabian hung up before his client had the opportunity to change his mind. While June Hanratty took no part in the discussion, Fabian had decided that dealing with one Hanratty was bad enough. He would leave it up to Fred to bring his wife up to speed.
Fabian and Fuscardo, both looking somber, entered the conference room where Darnell had been impatiently waiting. The defense lawyer, who had been staring out the window at nothing in particular, turned toward them.
“So, do we have a deal?” asked Darnell, already knowing what the answer would be. He fully anticipated these negotiations to be drawn out and contentious.
“Look, Ben, we gave our client your offer. To say Fred Hanratty was pissed off would be a gross understatement. Mrs. Hanratty was devastated. All she could say over and over were words to the effect, ‘how could they believe my baby is worth only a lousy $250,000—I doubt they’d give up a child of theirs for that.’ They want to go to trial if that’s all there is. They’re fighting mad.”
Darnell shrugged his shoulders and began to pack his briefcase, acting unimpressed by Fabian’s performance. He had seen it all before.
“Unless you plan to ask Dr. Young more questions, which I seriously doubt you do, I presume that this deposition is over,” said Darnell. “And unless there is something else we need to do here today, I’ll see you at the courthouse next Monday.”
Fabian bit on Darnell’s bluff. “Do you want our new demand or are we finished talking?” Fabian blurted.
“Go ahead,” said Darnell, edging closer to the door.
Fabian drew in a deep breath. “I know you’ve got more, so let’s get to the bottom line, Ben. They’ll take $900,000.”
Darnell contemplated the demand, pleased that he had already saved the insurance company $100,000. Not a bad start.
“I don’t have that kind of authority. I know APIC and especially Pavlik. She acts like it’s her own damned money she’s guarding. I’ll talk to her, Jack, but I’m not optimistic,” said Darnell feigning an apology. He marched out the door and down the hall, ostensibly to make his call.
The savvy Fabian checked his watch. 4:55, Central Standard Time. “It’s 5:55 back in Pittsburgh,” whispered Fabian to Fuscardo. His associate gave Fabian a puzzled look.
“That means,” beamed Fabian, “we’ve got ‘em!”
“I think I’m missing something,” said Fuscardo.
“After almost thirty years in this business, I know insurance adjusters,” bragged Fabian. “There’s no way Pavlik is still at work. She’s in Pennsylvania, and it’s way past quitting time there. Pavlik’s at least on her second martini by now, if my guess is right. After 5:00 p.m. Hanratty v. Saad became the farthest thing from her stingy little mind. That’s how these insurance adjusters operate. Trust me on this one,” Fabian gloated. “Darnell’s got some serious money in his pocket for us. He’s just seeing how far he can beat us down.”
Down the hall, Darnell paced back and forth in the vacant office. He checked his watch. Five minutes had elapsed since he had left Fabian—enough time for a phone call to the insurance company. He left the office and strode back to the conference room. Entering, he gave Fabian an ingratiating smile. He brushed past Fuscardo and plopped into a vacant chair in the corner.
“I got some more authority,” Darnell lied once again. “Pavlik told me to offer you four hundred fifty thousand.” Darnell did not wait for a response. “That’s a lot of money for these folks, Jack. Both your clients and you are taking a tremendous risk if you turn down that kind of money. I’m sure you told them there are no guarantees at trial.”
“At least we’re past the insults,” said Fabian.
Fabian mentally reviewed the negotiations: $1 million; $250,000; $900,000; $450,000. He did the math and thought he could see where Darnell was heading, and, he supposed, Darnell was astute enough to know in what ballpark Fabian’s settlement figure lay.
“Let’s cut to the chase, Ben. We both can see where we’re going on this. If you get your folks to split the difference, we’ll go home. Case over. You beat us down, but I think $750,000 is a fair figure. We all know that no amount of money will bring this little girl back. You call your folks at APIC, and we’ll call our clients. You get us the seven-fifty and I’ll get the Hanrattys to take it. I think they’ll do what I recommend.”
While Darnell believed that this was not an unreasonable way to end it, his pride and ego would not let him allow Fabian have the last word. He had already saved APIC $250,000. Maybe I can do a little better and save some more face.
“I’ll call,” said Darnell. He exited the room once again to place his make-believe call.
Within minutes, he reentered the room and beamed broadly. “Jack. Santino. I think we can get this done. I’ve got Pavlik to go to $700,000. That’s all I’ve got, and that’s all she’s going to give me. Trust me on this one. I had to work like a damn dog to get that for you. Do we have a deal?”
Fabian frowned, feigning disappointment. He, like Darnell, did not want his opponent to have the last word. “Here’s what I’ll do, Ben,” Fabian said, admiring his reflection in the conference room window. “I know you can probably get me a little more. You guys always hold back something.”
Darnell looked disappointed.
“Seven hundred thousand eight hundred. Pay that and we go home.”
Darnell looked relieved but puzzled at the odd amount sought by his adversary. He hesitated momentarily, and then stuck out his right hand. “We’ve got a deal. I’ll get you the extra $800, even if I have to grab Pavlik by the throat to do it. I’ll notify the judge of the settlement tomorrow and ask him to call off the jury. We’ll have the check and release to you, hopefully, within ten days.”
The two exhausted warriors shook hands. Darnell stuffed his file into his briefcase and departed, satisfied with the result.
“I’ll call the clients and give them the good news,” Fabian said to a glowing Fuscardo.
“Okay. I’ll take the stuff downstairs and get the car.” Fuscardo paused. “One question, Jack.”
“Yeah, what’s that?”
“Seven hundred thousand eight hundred? What’s with the $800?”
“That, my young friend, is for tonight for you and ‘ole Dad here. Make sure you get directions down to the Big Easy. We’re going to Commander’s Palace for a world-class Creole dinner and the best bottle of Bordeaux wine they have in their cellar. After that, we’re hitting the Quarter. Time to celebrate. We’ve earned it!” he said with glee, not realizing that he had left almost $300,000 of his client’s money on the table.
After high fives were exchanged between the two, a triumphant Fabian called his clients who had been anxiously waiting by the phone.
The pain of the hangover seemed to subside somewhat as Fabian thought of the fee that he was going to collect. $280,000 would go a long way toward paying off some of the debt he had accumulated over the last five years.
Hell, I might even take a couple of days off and blow a few bucks.
CHAPTER 3
Fabian, still groggy and head throbbing, sat at a table in the rear of the hotel restaurant. A few brave early-risers sat at the counter, sipped coffee, and smoked cigarettes as they pored over their morning newspapers. He stretched his muscular arms over his pounding head and yawned. Surveying the restaurant, he spied an abandoned newspaper left in a disheveled heap on the next table. He struggled to his feet and clumsily snatched the paper from the table revealing a plate of half-eaten biscuits and slimy sausage gravy. The sight instantly nauseated him.
Fabian slithered back to his booth with his booty. He unfolded his pilfered Times-Picayune and scanned the headlines. It was going to be a challenge to focus on the smaller newsprint. At fifty-three, he had reached and passed the age at which he knew he needed reading glasses but was too vain to buy them.
Fabian squinted at the front page, straining to focus his bloodshot eyes. With considerable effort, he spied an all too familiar headline: “Liability Crisis Driving Doctors Out of State.” It was the third time this week, in three different cities and states, that he had seen similar news stories. He held the newspaper at arm’s length, and the print came into focus. He strained to read the accompanying story as angry heat stung the back of his thick neck.
Same B.S., different venue. A goddamned nationwide epidemic, this medical liability crisis. Fabian felt his ire rise as he perused the article.
HARRISBURG, PA. – Hundreds of white-smocked physicians from around the state poured into the capital yesterday to protest skyrocketing medical malpractice premiums and unfair laws which, they claim, threaten their practices and their ability to adequately provide reasonably priced medical care to citizens of Pennsylvania.
Dr. Jonathan LaPierre, president of the Pennsylvania State Medical Association and spokesman for the loud and vociferous group of doctors, held a scheduled press conference on the steps of the capitol building.
Said LaPierre, “We’re mad as hell and we’re not going to take it anymore!” as throngs of cheering physicians, nurses, hospital administrators, and their supporters looked on. According to LaPierre, the group had rallied together to demonstrate their support for recently passed legislation in the House of Representatives of the Pennsylvania General Assembly which, in the words of LaPierre, will “stop greedy plaintiff lawyers from filing frivolous lawsuits against talented and caring physicians and allow us to go back to the business of practicing medicine without fear of reprisal every time we treat a patient.”
According to legislative experts, in order for such legislation to become law in the state, a constitutional amendment would be required. The bill currently awaits consideration by the state Senate; however, for the amendment to become law, it must pass both houses of the General Assembly in two consecutive sessions. The earliest date for relief for the physicians is 2007, according to LaPierre.
“Because of skyrocketing medical malpractice insurance premiums,” said LaPierre, “doctors are being forced to consider either leaving Pennsylvania to practice in a more litigation-friendly environment or to consider leaving the practice of medicine altogether. The litigation climate in this state is terrible,” said . . .
