Nursing Homes Abuse Blog - By Jonathan Rosenfeld

"Are nursing homes required to have certain numbers of staff"

-Edward, Highland Park, IL

Illinois does not require a specific staff to patient ratio for Illinois nursing home facilities.  The responsibility lies on each facility to determine the staffing needs to meet the needs of its residents.  (Section 300.1230 – Staffing)  The Administrative Code requires that a sufficient number of staff remain on duty for all hours of the day to provide services that meet the total needs of the residents.  (Administrative Code Part 300 – Skilled Nursing and Intermediate Care Facilities Code) 

Staffing is based on the needs of the residents and is determined by determining the number of hours of nursing time each resident needs on each shift of the day.  This determination must be made separately for both licensed and unlicensed nursing personnel.  The number and categories of personnel that should be provided is based on:

• Number of residents
• Amount and kind of care required to meet the needs of all residents at all times
• Size, physical condition, and layout of building including proximity to resident rooms
•  Medical orders (Section 300.1230 – Staffing)

The Skilled Nursing and Intermediate Care Facilities Code provides examples for how to compute staffing needs for a 100 bed Skilled Nursing Facility, based on the considerations listed above (see Resources below). 

The facility must provide the necessary care and services to attain or maintain the highest level of physical, mental, and psychological well-being of the residents.  (Section 300.1210 – General Requirements for Nursing and Personal Care) 

Each facility must have a director of nursing services (DON) who is a registered nurse and is a full-time employee on duty a minimum of 36 hours, four days a week, with at least 50% of their hours scheduled between 7 A.M. and 7 P.M.  In facilities with 100 or more occupied beds, there must also be an assistant director of nursing (ADON), on duty a minimum of 36 hours, four days a week.  For all shifts, there must be a licensed nurse designated as being in charge of nursing services when neither the DON nor the ADON are on duty.  The facility must also have a minimum of one staff member awake and ready at all times.

Resources:

Illinois Nursing Home Care Act

Administrative Code – Part 300 – Skilled Nursing and Intermediate Care Facilities Code

Section 300.1210 – General Requirements for Nursing and Personal Care

Section 300.1230 – Staffing – (p) – Example of Staffing Calculations

A)        Total Minimum Hours of Care Needed

B)        Minimum Total Hours Needed Per Shift

C)        Licensed Nurse Coverage

D)        Licensed Nurses Required

E)         Nurse Aide/Orderly Coverage

F)         Nurse Aides/Orderlies Required

Related Nursing Homes Abuse Blog Entries:

Nurses Admit To Problems At Nursing Homes

High Staff Turnover Rates Plague Most Nursing Homes

A Recipe For Danger: Nursing Shortage Could Reach 1M By 2020 

I am grateful to our readers who continually supply me some great topics to write about.  I also receive questions from readers regarding a particular situation they may be experiencing.  I try to answer every question I get or direct readers to a resource to get more information.  I have put many of commonly encountered questions in our FAQ category for easy access. Don't worry, I never disclose your personal information.

Here are some of the most popular FAQ's:

• How do I get a copy of medical records from a nursing home?

One of the most important steps in determining if a cause of action exists against a nursing home or hospital is to review the medical records. The records will help determine what-- if any-- mistakes were made by the facility in the care of the individual.

Getting medical records from a nursing home, physician or hospital can be a daunting task due to privacy regulations (HIPPA) and misunderstanding of the laws that apply to obtaining the records-- both on the part of the person requesting the records and on the part of the medical facility.

• Who is responsible for deciding whether an assisted living facility can properly care for a resident?

Assisted living facilities are generally governed by state law. In Illinois, assisted living facilities (ALF's) are licensed, regulated, and inspected by the Illinois Department of Health (IDPH). The IDPH ensures that all ALF's in Illinois comply with the provisions of the state Illinois Nursing Home Care Act (210 ILCS 45). IDPH is responsible for the initial licensing and continued re-certification and inspection of the facility.

If a patient feels that his or her resident rights are being violated, a complaint may be filed with IDPH, which may prompt a complaint investigation to ensure that the facility is properly caring for all residents.

• What is an advance directive and should I have one?

 An Advance Directive is a written statement about how you want medical decisions to be made in the future if you can no longer make them yourself. Federal law requires that you be told of your right to make an advance directive when you are admitted to a health care facility.

• Are nursing home patients protected under federal law?

Although many nursing home patients frequently feel trapped within the situation they are currently in, nursing home patients actually have many rights granted to them under federal law. Federal law empowers nursing home patients to make decisions with respect to their medical treatment and personal care.

Who Regulates Nursing Homes?

In most states, nursing homes are regulated by a combination of state (Department of Health) and federal authorities (U.S. Department of Health and Human Services Centers for Medicare and Medicaid Services [CMS]). Each agency has its own regulations that control all aspects of the nursing home including: resident care, staffing, policies and procedures and medical equipment.

Because nursing homes are responsible for complying with state and federal regulations, agents from either agency conduct inspections of the facility to assure compliance with the regulations. These inspections are called 'surveys' and are generally done unannounced at least one time per year. Surveys may be conducted more frequently at facilities with a history of prior violations or in response to a complaint regarding resident care.

• What Are Signs Of Nursing Home Abuse?

Physical, mental and sexual abuse are forms of abuse encountered by nursing home residents across the country. Sadly, some of the most commonly abused nursing home residents include those who are physically or mentally disabled and have no way of fighting off a perpetrator.

Remember, you know your loved one better than anyone else. If you suspect mistreatment or abuse immediately report the situation to local police and/or ombudsmen. The reality is that most episodes of elder abuse go unreported.

• What Steps Should I Take Before Meeting With A Nursing Home Lawyer?

When you become aware of mistreatment of a nursing facility it is important to get your loved one the medical treatment they need and then get into ‘fact collection mode’. In fact collection mode, you are beginning to collect information about the incident, acts of the nursing home staff and medical condition of your loved one. Doing some preliminary work before you meet with a lawyer will prove for a more effective meeting.

Don’t assume you will remember all facts regarding the incident. As time goes on, your memory will begin to fade. The following steps will help you organize your thoughts during a stressful time and to give an attorney the information he needs to work best on your behalf.

Have a question regarding nursing home injury or patient rights?  Give me a call or use our contact form to discuss.  (888) 424-5757
 

"How do I get a copy of medical records from a nursing home?"

- Rhonda P., Sacramento, CA

One of the most important steps in determining if a cause of action exists against a nursing home or hospital is to review the medical records.  The records will help determine what-- if any-- mistakes were made by the facility in the care of the individual.

Getting medical records from a nursing home, physician or hospital can be a daunting task due to privacy regulations (HIPPA) and misunderstanding of the laws that apply to obtaininging the records-- both on the part of the person requesting the records and on the part of the medical facility.

Nonetheless, federal and state laws ensure patients and their authorized representatives are entitled get copies of medical records when the laws are complied with. This includes the right to inspect and copy the resident’s clinical records and other records regarding the resident’s care and maintenance that are kept by the facility or by the resident’s physician. (Illinois Nursing Home Care Act - 210 ILCS 25/2-104) 

A resident’s contract with a nursing home facility should designate the name of the resident’s representative, if any, which authorizes the representative to inspect and copy the resident’s records. (210 ILCS 45/2-202) Nursing home residents also have the right to privacy regarding the content of resident records. 

When a nursing home survey is performed at a facility, the Illinois Department of Health will respect resident confidentiality and not disclose the contents of a record in a manner which identifies a resident, except upon a resident’s death to a relative or guardian or under judicial proceedings. Also, any confidential medical, social, personal, or financial information identifying a resident will not be made available for public inspection in a manner which identifies a resident. (210 ILCS 45/2-206) 

In some states, such as Illinois, a nursing home resident has the right to sue the facility in court in order to get his or her medical records. Illinois law provides that every private and public health care facility must allow a patient or patient’s legal representative to examine the health care facility records kept in connection with the treatment of the patient (history, bedside notes, charts, pictures and plates) and make copies of such records. 

A request for copies of the records must be in writing and delivered to the administrator or manager of the health care facility or to the health care practitioner. The person requesting copies will reimburse the facility for all reasonable expenses. The health care facility must respond to a written request within 30 days of the receipt of the written request. If the facility needs more time to comply, the facility must provide the requesting party a written statement of the reasons for the delay and the date by which the requested information will be provided. In any case, the facility must provide the requested information no later than 60 days after receiving the request. (735 ILCS 5/8-2001) 

Federal law also provides that the resident or the resident’s legal representative has the right to access all records including clinical records within 24 hours and receive photocopies for a standard charge. (42 CFR §483 – Resident’s rights) The resident also has the right to personal privacy and confidentiality of all personal records. As such, the resident may approve or refuse the release of personal and clinical records to any individual outside the facility unless resident is transferred to another health care institution or release is required by law. 

Tips:

• Do not tell the facility why you are requesting the records
• Keep copies of all record requests
• Send the request via a method to confirm the facility has received the request
• Request the records as soon as you believe you may be interested in getting them
• If you are an authorized representative, attach a copy of any relevant paperwork granting such authority to do so
• Always request a complete copy of the chart

Sources:

Illinois Nursing Home Care Act

Your Medical Record Rights in Illinois

Federal Law – 42 CFR §483 – Resident’s rights.

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"What is an advance directive and should I have one?"

-Shirley C.- Aurora, Illinois

An Advance Directive is a written statement about how you want medical decisions to be made in the future if you can no longer make them yourself. Federal law requires that you be told of your right to make an advance directive when you are admitted to a health care facility.

Many states, such as Illinois have three advance directives:

• Health care power of attorney
• Living will
• Mental health treatment preference declaration

The health care power of attorney allows you to choose someone to make your future health care decisions if you are no longer able to make them yourself. This power only takes effect if you are no longer able to make health care decisions and lasts until your death unless you cancel it or include time limits. 

The agent you choose cannot be your health care professional or health care provider. You can use the Illinois Statutory Short Form: Power of Attorney for Health Care or write your own. Your agent is required to follow any specific instructions you give regarding care you want provided or with held. 

A living will is a declaration telling your health care provider whether you want life extending measures taken and are you are unable to state your wishes. Unlike a health care power of attorney, it only applies if you have a terminal condition (incurable and irreversible condition such that death is imminent and the application of any death-delaying procedure serves only to prolong the dying process). 

You can use a standard living will form or write your own, with any specific directions about what type of life-extending medical procedures you do or do not want. You can cancel your living will at any time. 

A mental health treatment declaration allows you to specify whether you want electroconvulsive treatment (ETC) or psychotropic medicine when you have a mental illness and are unable to make these decisions for yourself. You can choose someone to make your mental health decisions for you, use a declaration for mental health treatment form, or write out your wishes. Your mental treatment preference declaration expires three years from the date you sign it, and you can cancel your declaration in writing prior to its expiration so long as you are not receiving mental health treatment at time of cancellation.

A Do-Not-Resuscitate Order (DNR order) is a medical treatment order saying that you do not want cardiopulmonary resuscitation (CPR) if your heart and or breathing stops. You or your legal representative must consent to the DNR order before it may be entered into your medical record. 

If you do not have an advance directive and you cannot make health care decisions for yourself, a health care “surrogate” may be assigned under Illinois law. This surrogate will be one of the following (in order of priority): guardian of the person, spouse, any adult children, either parent, any brother or sister, any adult grandchildren, a close friend, or a guardian of the estate. The surrogate can make all health care decisions with certain exceptions (withdraw or withhold life-sustaining treatment unless you have a terminal condition, permanent unconsciousness, or an incurable or reversible condition). A surrogate, other than a court-appointed guardian, cannot consent to certain mental health treatments including electroconvulsive therapy, psychotropic medication, or admission to a mental health facility. 

Under the Illinois Nursing Home Care Act, all nursing home facilities must establish a policy for the implementation of physician orders limiting resuscitation, such as those commonly referred to as “Do-Not-Resuscitate” or DNR orders. Any orders under this policy must b e honored by the facility. Also, the Department of Public Health Uniform DNR Advance Directive or a copy of that Advance Directive shall be honored by the facility. (210 ILCS 45/2-104.2) 

Resources:

IDPH: Illinois advance directives

Statement of Illinois Law on Advance Directives

Living Will Declaration Form

Declaration for Mental Health Treatment Form

Power of Attorney for Health Care, Illinois Statutory Short Form 

IDPH Uniform Do Not Resuscitate (DNR) Advance Directive 

IDPH Uniform Advance Directive – Guidance for Individuals

IDPH Uniform DNR Advance Directive – Guidance for Health-Care Providers and Professionals

 "How can nursing home ombudsmen help with problems encountered in a long-term care facility?"

-Carol, Beachwood, Ohio

Every state is required to have a long-term care ombudsmen program as set forth by the Federal Older Americans Act.  In the long-term care setting, ombudsmen act as patient advocates to help families find facilities that meet resident needs, address problems encountered in long-term settings and inform patients of their legal rights.

Most people utilizes ombudsmen services when they encounter a problem at a facility such as a resident injury resulting from abuse or neglect.  In this context, an ombudsman can help in the investigation of the incident and resolve problems with the facility.  

In many cases, the information provided by a nursing home ombudsman may substantiate an episode of poor care.  This information may be helpful in determining how an incident occurred and if the matter should be pursued as a nursing home negligence lawsuit.  Even in cases where there are findings of improper care, most jurisdictions prohibit ombudsmen reports from being introduced into civil lawsuit.  

If you have a question regarding nursing home care or seek more information regarding a nursing home injury, the ombudsmen program is a great resource to help provide you with more information. Unless you give ombudsmen specific permission to share your information with the facility, all personal information will be kept confidential.

Resource:

National Long Term Care Ombudsman Resource Center- provides contact information for ombudsman in every state.

Too we look to environmental causes of falls....cluttered hallways...improperly footwear...yet in many fall-related situations the real 'cause' of the fall lies within the person herself...

Hypotension (low blood pressure) is a problem for many nursing home residents, causing dizziness and fainting. Blood pressure readings measure the pressure in arteries - systolic pressure (the top number in a reading) measures the pressure the heart generates when pumping blood out to the rest of the body and diastolic pressure (the bottom number in a reading) measures the amount of pressure between heartbeats. A systolic blood pressure of 90 millimeters of mercury or less or a diastolic blood pressure of 60 millimeters of mercury or less is considered low.

Orthostatic hypotension, also known as postural hypotension, occurs when a person’s blood pressure drops after changing position from lying down or sitting to standing as blood pools in the legs leaving less blood to circulate back to the heart. In the elderly, orthostatic hypotension can be caused by changes in blood pressure regulation due to aging, dehydration, and certain medications.

Common causes of orthostatic hypotension include dehydration, medications, heart problems, diabetes, and nervous system disorders; all of which are common in the elderly. Dehydration can occur easily in nursing homes because of sickness or inadequate care. Also, many drugs commonly prescribed to the elderly including diuretics, high blood pressure medication, heart medication, and drugs to treat Parkinson’s disease can all cause orthostatic hypotension.

Orthostatic hypotension is more common in older adults, with over 15% of persons 65 and older suffering from it. In addition, about 50% of elderly nursing home residents suffer from orthostatic hypotension. Elderly patients, especially those who are heavily medicated or have prolonged bed rest, are especially at risk. Nursing home patients are also at risk for dehydration if they do not receive adequate care.

Orthostatic hypotension can cause dizziness, light-headedness, blurry vision, nausea, and fainting, which can cause dangerous falls. Elderly persons are particularly vulnerable to falls because of weak bones and complications from other health problems. Orthostatic hypotension can also cause strokes due to the changes in blood pressure and mental impairment because of brain damage.

Elderly nursing home patients should be properly diagnosed by a physician because not all dizziness is caused by orthostatic hypotension. If properly diagnosed, extra care can be taken with patients to prevent dangerous falls. Nursing home staff should take added precautions in the morning, when residents are first getting out of bed because that is when they are most at risk for a drop in blood pressure. The staff should also ensure that elderly residents are adequately hydrated, avoid hot weather, stand slowly, increase salt intake, and even apply compression stockings to help reduce symptoms. These simple steps can make the difference between a healthy and safe nursing home resident and one injured by a severe fall.

If your loved one suffered a nursing-home-related-fall and are looking for an explanation, one of the fist areas that should be analyzed is to see what medications the individual was taking.  Nursing home staff has a duty to do an assessment of all residents-- including a medication review--- to determine their 'risk' of falling.  A failure to do such an assessment-- or if it was improperly conducted opens the facility to potential fall-related liability.

Sources:
MayoClinic.com – Hypotension
MayoClinic.com – Orthostatic hypotension
Merck – Orthostatic Hypotension

Thanks to Heather Keil, J.D. for her assistance with this article.

"I suspect my grandmother may be getting abused at her nursing home.  What are common signs of abuse I can look for in confirming this situation?" -- Sherri, Atlanta, Georgia

Physical, mental and sexual abuse are forms of abuse encountered by nursing home residents across the country.  Sadly, some of the most commonly abused nursing home residents include those who are physically or mentally disabled and have no way of fighting off a perpetrator.

Remember, you know your loved one better than anyone else.  If you suspect mistreatment or abuse immediately report the situation to local police and/or ombudsmen.  The reality is that most episodes of elder abuse go unreported.

The following situations warrant further investigation:

• Unexplained bruises, cuts, burns, sprains, or fractures
• Bed sores
• Frozen joints
• Unexplained venereal disease or genital infections, vaginal or anal bleeding
• Bloody clothing
• Sudden changes in behavior
• Staff refusing to allow visitors to see resident or delays in allowing visitors to see resident
• Staff not allowing resident to be alone with visitor
• Resident being kept in an over-medicated state
• Loss of resident's possessions
• Sudden large withdrawals from bank accounts or changes in banking practices
• Sudden loss of appetite

Depending on the severity of the findings, you may wish to report the situation to the local department of health, police or pursue the matter against the facility civilly.  In our nursing home litigation practice, many civil lawsuits come about after an investigation by the state authorities.  Many times, the evidence secured by state authorities proves especially valuable because it was secured immediately after the incident was noted.

Nursing Home Injury Laws: Georgia

Though commonly used, 'elder abuse' really means a variety of harm to an older person.  The Administration on Aging defines elder abuse as "the intentional or negligent act by a family member or caregiver that causes harm or serious risk of harm to an older adult."

Elder abuse encompasses:

• Physical abuse is inflicting, or threatening to inflict, physical pain or injury on a vulnerable elder, or depriving them of a basic need.
• Sexual abuse is the infliction of non-consensual sexual contact of any kind.
• Emotional or psychological abuse is the infliction of mental or emotional anguish or distress on an elder person through verbal or nonverbal acts.
• Financial or material exploitation is the illegal taking, misuse, or concealment of funds, property, or assets of a vulnerable elder.
• Neglect is the refusal or failure by those responsible to provide food, shelter, health care, or protection for a vulnerable elder.
• Self-neglect is characterized as the behavior of an elderly person that threatens his/her own health or safety.
• Abandonment - The desertion of a vulnerable elder by anyone who has assumed the responsibility for care or custody of that person.

Source:

Department of Health & Human Services, Administration on Aging

"Are there limits on the compensation the victim of nursing home injury can recover?" Asks Nancy of Palos Heights, Illinois with a pending claim against a Chicago nursing home involving her fathers wandering from a nursing home.

No.  There are no monetary limits on the damages available for victims of nursing home abuse and neglect.  You are entitled to whatever a judge or jury determines to be fair and reasonable compensation.  A jury may award damages for both past and future: medical expenses, pain and suffering, disability and loss of a normal life.  In the case of wrongful death, a jury may award damages for loss of society to the family of the deceased.

However, there are important issues that impact the amount of compensation an injured person or the estate of deceased person may receive.  The first hurdle involves nursing homes with no liability insurance.  With a weak economy and some large verdicts rendered against them, some nursing homes have decided to go 'naked' with respect to liability coverage for claims and lawsuits brought against them.

The result of having no liability insurance (or in some cases limited insurance coverage) ultimately means that the injured party is limited in his recovery.  Unless a nursing home or assisted living facility is part of large corporation, it is difficult-- if not impossible, to collect on a judgment involving an entity with no insurance coverage.  Put another way, a large judgment may be worthless if the nursing home is unable to satisfy it.  Many individual nursing home owners have established complex systems of ownership that limit the owners personal liability.

In cases of uninsured or under-insured nursing homes, settlements may still be arranged.  Most settlements with nursing homes having limited or liability insurance represent a compromised result--generally less than the full value of the claim. 

Most people never inquire about a nursing home's insurance coverage until it is too late.  In addition to researching facilities track record with respect to complaints and lawsuits, it is also advisable that an inquiry be made with respect to the insurance coverage for a particular facility.  Why not learn as much as possible about the facility responsible for the care and safety of your loved one?

In situations where there has been a specific incident involving a serious injury or abuse, the nursing home resident themselves or their family will seek out the advice of a nursing home attorney for representation.

The majority of nursing home neglect cases are far more subtle and many people are hesitant to seek out an attorney.  The best rule of thumb is to trust your instinct.  If something doesn't seem right--it's probably not.  Because most cases of nursing home neglect involve ongoing mistreatment, it is important to contact an attorney when you begin to suspect the nursing home may be treating your loved one improperly. 

Pay attention to the physical signs.  Most elderly are hesitant to report situations involving nursing home abuse or neglect and may be scared to confront the people responsible for providing their care.  Patterns of injury should not be tolerated.  Repeated falls, bruising, cuts or infection deserve to to investigated as they are easily preventable situations that are indicative of staffing problems at a facility.

Statute of limitations, or specific time allotments, govern how much time one has to bring a lawsuit against the nursing home or long-term care facility.  Statute of limitations may provide years for pursuing a cause of action.  However, the sooner an attorney is contacted, the sooner an investigation can be started to determine what may have caused the injury or abuse.  Many cases involving nursing home abuse, neglect or injury require the review of extensive medical records and expert witness consultation--time consuming practices to say the least. 

Even in situations where there may seem to be a lack of evidence to prove neglect on the part of the nursing home, an experienced nursing home attorney will be able to sort through the evidence and determine if there is a case and how to proceed.  Most nursing home attorneys work on a contingency fee, meaning they only receive a fee if they are successful in obtaining compensation for the injured party.  No out of pocket expenses are required on behalf of the client. 

There has been a recent trend, in some situations involving severe injury, where the nursing home or hospital may seem to take responsibility for an injury.  Representations may be made by the staff at these facilities that they will 'do whats right' to remedy the situation.  Don't be lulled into believing this song.  Rarely --if ever -- do these individuals really have the interests of the injured party in mind.  Moreover, without the consult of an attorney well versed in what damages an injured person is entitled to receive, the nursing home or hospital will use its uneven bargaining position in its favor.

If you or a loved one suspect the nursing home, long-term care facility, home nurse or hospital may have caused or contributed to an injury or situation involving abuse, why not speak to an attorney who has your interests in mind without any charge to you?

Resource:

Nursing Home Injury Laws

I have been getting some really good questions from blog readers.  Some are very unique, most are questions that consistently arise in cases involving nursing home abuse and neglect.  I have added a new 'Frequently Asked Questions' category to blog to hopefully provide an easy source to reference information.  

I will be periodically be posting more questions and responses.  No full names will be used to protect the identity of blog readers.  Further, I encourage you to contact me to discuss your specific situation. Many questions may seem similar, but as cliche as it sounds, every case is really unique.  

----------------------------------

"What are the legal aspects if a nurse treats a DNR as a Do Not Treat document? If a person has a correctable problem and fails to treat it or notify the doctor, because they have a DNR status? I am doing a research paper and I need documentation for at least an answer to this question. Please Email me soon if you can help. Thank You, Amie"

Amie-

As far as I am concerned, there really is no such thing as a 'do not treat order'.  A 'do not treat order' amounts to physicians and nurses withholding medical treatment for a treatable medical condition. A DNR applies the use of artificial, life-prolonging medical treatment when a person has a terminal disease or is in the end-stage of life. 

If a nurse fails to provide treatment or notify a doctor for a correctable problem because the patient has a DNR order in their chart, the facility is responsible for the fallout.  The nurse is clearly ignoring the intent of DNR orders.  (Because the nurses are employees of the nursing homes, the nursing home is responsible for the acts of their agents)

There have been situations recently that I am aware of in nursing homes where the facilities have been hit with huge verdicts / entered into large settlements for withholding medical treatment that resulted in death.  There was a recent Florida case where the nursing home settled a case for roughly 10 million when the staff let a woman bleed to death following a fall in the facility.  The nurses misinterpreted a DNR order as 'do not treat'.

Hope this helps.  Good luck on the paper.  Let me know if you have further questions.

Jonathan Rosenfeld

Few relationships have such an alignment of interests as an attorney / client contingency fee payment plan.  Simply put, a contingency payment is a payment based on a recovery for the injured person.  In a contingency fee arrangement, the attorney receives no payment until the lawsuit is tried to verdict or settled.  After all the work has been done, the attorney receives a percentage of the recovery. 

The percentage of the recovery a lawyer charges is dependent on the type of case and the complexity of the matter.  Nonetheless, the exact percentage should be agreed upon in writing soon after the retention of the lawyer. 

In all cases there is a chance there will be no recovery--the case may not have merit or the defendant goes bankrupt, ect..  Under a contingency fee contract, if the lawyer does not win the case then the client will not be required to pay a fee. The client is not responsible for paying the lawyer for any of the time he spent on the case.

The ability to collect a percentage of the settlement or judgment provides a solid incentive for a lawyer to best serve a client. This is another reason why contingency plans are very popular with clients. After all, the potential financial reward of getting the highest settlement benefits the attorney and the client equally. So, the attorney will not perform at anything less than his or her best because there is a huge incentive for successfully litigating the case.