Nevada justices consider attorneys fees under cap law

Kathy Woods Nov. 6, 2009, 9:00am

Nevada Supreme Court building

LAS VEGAS (Legal Newsline)-A pending Nevada Supreme Court's decision in a case over contingency fees could fundamentally change medical malpractice litigation in the Silver State.

The issue before the high court is whether a law passed in 2004 that set a cap of $350,000 on noneconomic damages, such as pain and suffering and limited contingency fees attorneys can charge clients, was intended to be retroactive.

The case came about after Las Vegas attorney Robert Vannah was retained by Kathleen Johnson-Dinsmore in 1999 after n allegedly botched surgery. At the time, Johnson-Dinsmore agreed to pay the attorney 40 percent of any monetary settlement or award.

In November 2006, Johnson-Dinsmore was awarded $5.75 million. The 2004 law says that Vannah was allowed to charge 15 percent or roughly $800,000. But, Vannah says that since he was retained in 1999 at 40 percent that he should receive $2.3 million, according to their agreement.

Vannah told the justices that the case he entered into with Johnson-Dinsmore was still unresolved in 2006. And that he put $172,000 of his own money into the case.

Justice Mark Gibbon's suggested that had the legislation been intended to be retroactive it would have been included when the legislation was written.

Vannah said that he stopped taking malpractice cases after the law passed in 2004, the Las Vegas Review-Journal reported.

"It just didn't pencil out anymore. I'm not the only one. I know a lot of prominent firms that no longer handle these types of cases." Vannah said.

Vannah said the law has created unintended consequences.

"They've allowed the pendulum to swing too far the other way. Now, people who are impacted by bad doctors will have a hard time finding a good, experienced attorney to represent them. The doctors got what they wanted," Vannah said.

The only question the Supreme Court will be addressing is attorney fees, as it is the only part of the cap law which is being challenged.

The Supreme Court is expected to issue a written ruling in the weeks to come.

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