Landmark Ruling May Aid Poor in Malpractice Cases : Litigation: Allowing the splitting of legal fees could make it easier to gain access to expert witnesses for trials.

Like most consumers, Concepcion Ojeda could not hope to spend the kind of money that it would take to get a lawsuit ready for trial.

The Chula Vista woman wanted to sue a San Diego hospital, blaming the facility for her daughter’s birth defects. But lawsuits, especially complicated medical claims, take a lot of money and expertise.

So, along with her lawyers, Ojeda turned to a medical-legal consulting firm in Virginia. It helped her to settle the case for $1.1 million. That settlement led recently to a landmark court ruling that ought to make it easier for people claiming medical woes to gain access to legal experts--for no extra money.

In a first for California, a state appeals court said that consumers and lawyers absolutely are entitled to reach out for help from consultants. But, it said, the money to pay the consultants had to come from the lawyers’ pocket, even if that was tantamount to a violation of one of the basics of legal ethics--that a lawyer may not split legal fees with a non-lawyer.

The starchy rules of legal ethics, the 4th District Court of Appeal said, sometimes have to give way before the “practical challenges of real-world legal economics.”

The landmark ruling has the potential of transforming the big-bucks world of civil litigation, where lawyers increasingly must rely on expert consultants to evaluate medical claims. It is a ruling that holds enormous promise and uncertainty for lawyers, doctors and consumers.

“Look, it also imposes an enormous dash of realism onto what had been a subject covered with cant,” said Kurt Melchior, a San Francisco attorney and expert on the seemingly impenetrable subject of lawyers and their bills.

For consumers, especially for poorer people, the ruling should mean greater access to the courts, attorneys said last week. Anyone with a medical claim can pursue a lawsuit against doctors and hospitals without having to front money to a lawyer, or to doctors willing to review and criticize another doctor’s work.

The medical-legal consulting firms, one of the new breed of litigation services whose ads clutter the back pages of legal trade journals, find and employ those doctors.

If the case is not settled before trial, the consultants search the nation for another physician, one willing to testify in court. The expert testimony is billed separately, and on an hourly basis, to avoid the perception that the testifying doctor is more interested in winning than in the truth.

But, like the lawyer, the consulting firm gets paid for all its other work at the end of the case, if at all.

And, because of a complicated point of California law, there is a twist that benefits consumers--at the expense of lawyers.

State law sets a cap on the amount of attorney’s fees in medical malpractice claims. The 4th District Court of Appeal said the consultant’s share must come out of that sharply limited take.

Because the point of a medical malpractice suit is to provide for an injured person, the consultant’s fee should come from the pocket of the lawyer, not the victim, the court said.

For lawyers, that means splitting a fee, and the court’s decision underscores a remarkable recognition of the dramatic changes that have overtaken the way lawyers do business. It remains to be seen, lawyers said last week, whether those changes are good for the profession--and for clients.

“It’s interesting, there’s a real change going on,” said Dennis J. Hayes, a San Diego lawyer.

What the recent 4th District ruling is likely to do, lawyers said, is spell out what “services” a lawyer still provides that deserve payment.

Only “services,” not the “costs” of preparing a medical malpractice case for trial, entitle a lawyer to fees, the 4th District court said.

The costs come off the top of any judgment or settlement, leaving the lawyer--and now, perhaps, a consulting firm--to split their shares. The client gets the rest.

Traditionally, the costs associated with a lawsuit have included such items as court transcripts, filing fees, jury fees and the hourly compensation paid to expert consultants, the 4th District court said. Increasingly, lawyers also have been trying to recoup expenses such as travel, postage, photocopying, word processing and computer research, the court said.

The appellate court did not spell out what constitutes a cost and what are legal services, beyond the obvious--a cost is the cost of doing business but services mean profit. The 4th District sent the case back to a San Diego Superior Court judge to figure it out.

“This opinion is really going to shape that line, define what attorneys do and don’t do, what experts do and don’t do,” said Hayes, whose clients include the Medical Quality Foundation, the consulting firm based in Herndon, Va., that Ojeda used in her suit. “It’s really something.”

The Ojeda case began when Frances Ojeda was born Jan. 13, 1982, at Sharp Cabrillo Hospital, with severe brain damage, including cerebral palsy, according to court records.

Her mother, Concepcion, filed suit against the doctor who delivered the girl. That case led to a settlement that set up a trust fund for the girl.

After meeting with another attorney, Concepcion Ojeda opted to file a second suit, against the hospital. Not wanting to dip into the trust fund to defray the costs of the second suit, she signed a contract with the Medical Quality Foundation to assist the lawyers in preparing the case.

In exchange for 20% of the recovery, the foundation agreed to review the medical records and find expert witnesses willing to testify.