THE NASSAU LAWYER, NOVEMBER 2007 "Top Ten Special Needs Tips and Considerations for Personal Injury and Medical Malpractice Attorneys"
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BY WENDY H. SHEINBERG
1. The contingency retainer does not obligate the Personal Injury/ Medical malpractice (PI/Med mal) attorney to handle anything other than the case. Early on, advise your client that there will be ongoing legal issues that they need help with, which are beyond the scope of your engagement ... maybe put this in your retainer agreement. If you don't make this very clear up front, you will find yourself providing free legal services which are beyond your scope and focus .... would you want to handle the purchase of a house for the plaintiff too?
2. The law is constantly changing ... its hard enough to keep up with the changes in law and medicine in the PI/Med mal world. Do 3. The special needs attorney's fees are the subject of a separate retainer. 5. Consider commencing a guardianship proceeding during the course of the litigation ... that way the infant compromise order won't get held up once a settlement is reached. 6. Consider the future needs of infant clients, such as whether they have capacity once they reach majority, or does the injury indicate ongoing cognitive impairment, and whether provisions should be made to protect the child's money for after they reach the age of majority. 7. Consider a Court Ordered Special Needs Trust as part of a settlement order. 8. Form a good working relationship with a special needs attorney especially since you will want their advice during the litigation (for example, to determine how much of a settlement should go into a structure so that a home can be purchased). 9. Consult with a special needs attorney as soon as you identify a viable cause of action so that you're not playing catch up in determining what the client in the way of a settlement. 10. Don't do it all yourself, do what you do well and form a network of professionals who can help your client address the related issues. Wendy H. Sheinberg, Esq., CELA is the principal of Sheinberg & Associates, PLLC, a law firm that concentrates in Special needs, Elder Law, Estate Planning, Guardianships, Estate Administration Trusts and Wills. The firm has offices in Garden City, Brooklyn, and Manhattan. She is one of fewer than 400 Certified Elder Law Attorneys. She has been certified by the National Elder Law Foundation as a Certified Elder Law Attorney Ms. Sheinberg is a Member of the Irish American Bar Association of New York; Member of the National Academy of Elder Law Attorneys (NAELA); Member of the New York State Bar Association Elder Law Section: Member of the New York State Bar Association Health Law Section; Member of the New York State Bar Association Trial Lawyers Section; Member of the Nassau County Bar Association Publica-tions Committee; Board Member Long Beach Lawyers' Association. The firm can be reached by calling 516-222-7720 or on the World Wide Web at www.NYGuardianshipLaw.com.
you have the expertise to deal with Medicaid, Medicare, SSI, and the IRS? Consider the impact of potential Medicaid liens and properly apportion settlements to account for past medical expenses; consider the impact of the Medicare liens, and discuss them with your client up front.
4. Speak with a special needs attorney early to determine if your client will lose governmental benefits on the settlement of the action ... your client won't be happy with an award if it means that they will lose governmental benefits (especially if it happens without warning).
