Judge cuts fees of lawyer in malpractice suit
Instead, child will get more aid
A judge has taken the dramatic step of slashing a Toronto lawyer’s payout in a medicalmalpractice lawsuit by almost $500,000 and denying the plaintiffs’ request for $1.5 million to buy a new house, saying more of the award should go to the injured child at the heart of the case.
A hospital had agreed to pay $6.6 million to the family of Aaron Batalla, born severely brain damaged and needing lifelong personal care because of alleged negligence.
Justice Darla Wilson’s decision this month to rewrite how that money was divvied up adds to a little-known series of such rulings across Canada, and raises questions about one of the most emotional, hard-fought areas of civil law, namely, what does a lawyer deserve for the gamble of handling a malpractice case on a contingency basis?
And when should a court overrule the wishes of parents in such cases?
The legal fees “in my view are excessive based on the facts of this case,” said Justice Wilson of the Ontario Superior Court. “It was less risky than many compromised-baby cases.”
But a malpractice lawyer not involved in the suit said judges must realize the tremendous risks lawyers take when they handle a case on a contingency basis. They go unpaid as the case unfolds and costs mount, but receive a percentage of the award — usually about 30 per cent — if they are successful. If they fail, they get nothing.
“You take a huge gamble,” said Toronto lawyer Amani Oakley. “The files run years and years. There’s a really strong likelihood you’re not going to win, (and) the lawyers may be throwing their money away as well as their time.”
As for the judge slashing the payment for buying a new, bigger house: “It’s a fine line to draw, because you think that the parents have the best interests of a child in mind.”
Aaron was born severely brain damaged in April 1999, and now functions at the cognitive level of a toddler. He is “pre-linguistic” and visually impaired.
The family alleges mistakes made in delivering the child caused a loss of oxygen to his brain. Toronto’s St. Michael’s Hospital and a doctor the family also sued denied they caused the injury, saying the mother’s streptococcus-B infection and resulting inflammation were to blame. But the defendants agreed to settle for $6.6 million.
The Batallas’ lawyer, Joel Freedman, took the case on a contingency basis that would see him receive 30 per cent of any award. Freedman, who borrowed money to fund some of his expenses in the case, reduced the fee to 25 per cent, meaning a payment of $1.53 million, including tax and expenses.
The mother asked that part of the award be a lump sum of $1.5 million, allowing the Batallas to buy a five-bedroom home that would give Aaron his own room for the first time. They would use their existing house as an income property.
But Justice Wilson said she was concerned that barely half of the settlement would be put in an annuity to support Aaron’s ongoing care, and called in the Office of the Ontario Children’s Lawyer to review the situation.
The provincial watchdog said at least $5.4 million should flow directly to Aaron. The lawyer and the family then curbed their requests, the Batallas saying they would sell their old house and buy a new one. The judge went further. Noting that Freedman reported spending 155 hours on the case, she reduced his total payment to less than $1.2 million, including tax, and said the lump sum for the mother could total no more than $500,000.
In an interview, Freedman defended his requested fee, stressing that the lawsuit was unpredictable, could well have failed at trial and yet still produced a substantial settlement.
Once vilified as an incentive for ambulance chasing, contingency fees were validated by provincial legislation in recent years, and are now give plaintiffs with good cases but little money the “keys to the courthouse.”
The concept has become particularly common in medical malpractice, where costs tend to be unusually high and the wellfunded opponents uncompromising, said Oakley.