Clarify the law to help victims

By A TIMES EDITORIAL
Published July 22, 2007

In his too-clever reading of how much he can be paid from an $8.5-million settlement for his client, attorney Sheldon Schlesinger makes it no easier for those seeking legislative compensation for victims in the future. But his professional indulgence aside, the case of 19-year-old paraplegic Minouche Noel is a sad commentary for almost everyone involved: the state medical facility, the courts, the Legislature and the attorney.

Botched surgery as an infant and negligent care left Noel unable to walk or control her bladder. It took 10 years before a court awarded her $8.5-million for medical mistakes. It took eight more years before the Legislature, this spring, finally decided to pay her.

House Speaker Marco Rubio and Senate President Ken Pruitt are justifiably angry at an attorney who has tried to squeeze $1.7-million in fees from a claims bill intended to give him no more than $1.1-million. But their public outrage over any further legal delay associated with the fees is selective in nature. Noel has literally been crawling to the bathroom in her house for the seven years it took to get the Legislature to listen.

The problem is a state law, not changed since 1973, that limits claims of negligence against state agencies to $200,000 without legislative approval. Lawmakers are so averse to paying what juries say the government owes that some years they pay no claims at all. The result is that the process has become arbitrary and politicized. The victim with the best lobbyist or the most press usually gets paid first.

In fact, Noel would still be waiting for compensation if Rubio hadn't made it a personal priority. It also seems true that the bill would not have passed the Legislature without the arbitrary $1.1-million limit on the attorney's fees.

That fee limit is clearly what lawmakers intended, but Schlesinger notes that the bill appears to apply that limit only to the $6.5-million that goes directly to Noel. He argues there is no such limit on the $2-million check for her parents.

The courts can sort that out, but lawmakers ought not use the Schlesinger fee grab as a reason to do even fewer claims. If anything, this case speaks to the need for greater clarity and consistency. The Legislature has no reasonable process for dealing with claims, even those from people who have been wrongly imprisoned. The lack of such a procedure is what invites the lobbyists and lawyers to get involved.

Arguably, the Noels would still be uncompensated except for the work that Schlesinger performed over nearly two decades. He took the case to trial, to appeal and to the Legislature entirely on a contingency basis. He is flouting the Legislature's intent by trying to get another $670,000. Even if he succeeds, though, he will receive no more than 20 percent of the total payout. General state law allows for 25 percent.

If lawmakers want to cut attorneys' fees in these claims cases, and they should, they can begin by removing the delays and the politics. If every victim could follow a predictable and equitable path toward compensation, then the lobbyists and publicists and big-time attorneys would no longer be necessary.

[Last modified July 22, 2007, 01:16:54]