How Will You Pay a Medical Malpractice Lawyer?

Your medical malpractice lawyer will likely represent you under a contingency fee agreement. Here's what to expect.

By , J.D. · DePaul University College of Law

For a patient considering a medical malpractice lawsuit, a big question is, "How much will a lawyer cost me?" The answer might be encouraging for patients who have suffered harm through the provision of sub-standard health care. That's because medical malpractice attorneys often offer free initial consultations during which they discuss the process of bringing a lawsuit, as well as the potential strengths and weaknesses of the patient's case. Then, if the lawyer takes the case, he or she will probably work under a contingency fee agreement, in which payment for the lawyer's services will only come if the case is resolved successfully (through settlement or a jury award).

Let's look closer at common fee arrangements in medical malpractice cases, key considerations for potential clients, and more.

Can I Afford a Lawyer? Common Medical Malpractice Attorney Fee Arrangements

Most medical malpractice lawyers will represent a client under a contingency fee arrangement, meaning the lawyer's entire fee is paid as a percentage of the award or settlement in the case. So, if the case goes to trial and the patient loses, or if the client receives nothing in the way of settlement, the lawyer is never paid a fee.

The portion of the award that goes to the lawyer can vary, but the most common contingent fee is 33 percent of the award or settlement. Some arrangements might use different numbers for different circumstances. For example, an arrangement might provide for a 33 percent contingency fee if the case settles before trial, and a 40 percent contingency fee if the case goes to trial.

Another issue is who pays the costs of litigation, which can be substantial. These costs include expert medical witness fees, court filing fees, and the cost of obtaining medical records from hospitals. Many lawyers use agreements that provide that the lawyer will pay for costs of litigation, at least initially.

So, as an example, a patient and a lawyer might agree on a 33 percent contingency fee, with the lawyer shouldering the costs of litigation (at least "up front"), but in the event that the litigation is successful, the costs will come out of the award first. Assume the case settles for $100,000, and the costs of the litigation were $10,000. In such a case, the lawyer would be reimbursed for the costs of the litigation out of the settlement money, leaving $90,000. The lawyer would then take the contingency fee of $30,000. The patient would be left with $60,000.

Important Considerations for Clients

One important thing for every potential medical malpractice client to remember is that attorney's fees may be negotiable. Does this mean you should consult five different lawyers and compare prices and qualifications? Probably not, but there is absolutely no reason why potential clients should not shop around for the right medical malpractice lawyer. Remember, initial consultations are generally free.

Not only might the fee percentage be negotiable, other terms might also be up for discussion. For example, a lawyer might propose an agreement that requires a client to pay for litigation costs as they arise. In that situation, the client might ask that the lawyer/firm cover the costs of litigation "up front," with the understanding that those costs would be reimbursed to the lawyer/firm if the plaintiff receives a judgment or settlement award in his or her favor.

State Laws Affecting Medical Malpractice Fee Arrangements

Some medical malpractice reform pundits have argued that large contingency fees help drive up the cost of healthcare. As a result, some states have passed laws restricting contingency fees in medical malpractice cases. Some of these states include California, Florida, Connecticut, Tennessee, and Wisconsin. The details of these laws vary. For example, a California law limits attorneys' fees in medical malpractice cases to 40 percent of the first $50,000 recovered, 33 and one-third percent of the next $50,000, 25 percent of the next $500,000, and 15 percent of any amount over $600,000.

Learn more about hiring a lawyer for an injury-related case.

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