Reviewing Court Articulated Protection Of Minor As A Paramount Concern.
Appellate courts are very attuned to protect minors in minor compromise settlements where fee recovery is sought by the attorney representing the minor. This is well illustrated in Romero v. Kaiser Foundation Health Plan, Inc., Case No. B277499 (2d Dist., Div. 3 Jan. 19, 2018) (unpublished).
What happened here is that minor’s attorney commenced a medical malpractice suit against certain health care providers, although asserting a non-MICRA claims for willful misconduct. A $2.5 million settlement was reached, with minor’s attorney requesting 33% of the recovery ($833,333). The trial judge found 25%, or $625,000, to be the reasonable fee. However, there was a lingering issue about whether the MICRA cap applied, which would mean the maximum fee award could only be $446,650. However, this last issue did not have to be addressed had minor’s attorney been content with the 25% amount. He wasn’t.
Minor’s attorney appealed, obtaining an interesting appellate result. The reviewing court found no abuse of discretion in finding the 25% award justified under the CRC 7.955 factors used to determine reasonableness in this situation. However, given that courts need to be vigilant in protecting minor’s interests (given that the fee recovery comes out of the settlement amount), the appellate court on remand directed the lower court to consider whether the MICRA cap applied under the circumstances of the case and, if so, then order disgorgement of fees by the attorney given that he had been paid based on the 25% amount.
Comments