Can I Afford a Medical Malpractice Lawyer?

If you're a patient considering a medical malpractice lawsuit, a big question you likely have is, "How much will a lawyer cost me?" The answer might be encouraging. That's because most medical malpractice attorneys work under a contingency fee agreement, which means 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 attorney's fee arrangements in medical malpractice cases, key considerations for potential clients, and more.

Medical Malpractice Contingency 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 for their legal services.

The portion of the award that goes to the lawyer can vary, but the most common contingency fee is 33 percent of the award or settlement.

What Is a "Sliding Scale" Contingency Fee?

Some medical malpractice attorney-client fee agreements might use different numbers for different circumstances. This is known as a "sliding scale" contingency fee. For example, an arrangement might provide for:

• a 25 percent contingency fee if the case settles before a lawsuit needs to be filed
• a 33 percent contingency if the medical malpractice case enters the lawsuit phase, and
• a 40 percent contingency fee if the case goes to trial.

How Will "Costs" Be Handled in Your Medical Malpractice Case?

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 fee 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.

Can You Negotiate a Medical Malpractice Lawyer's Fees?

It's true 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. Initial consultations are generally free, after all. Just remember that saving money might not be the best priority when trying to find the right lawyer. You want to match with an attorney who has the right experience and seems like the best fit for you and your case.

Even if a lawyer's fee percentage isn't negotiable, other terms might be. 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 medical malpractice law limits attorneys’ fees in these kinds of cases to:

• 25 percent of the client's financial recovery if a settlement is reached before a lawsuit is filed in court (or before a "demand for arbitration" has been filed, as in medical malpractice cases against Kaiser Permanente), and
• 33 percent of the client's recovery if a settlement is reached before a lawsuit or arbitration demand has been filed, or if the client receives a court award after trial.

If You're Considering a Medical Malpractice Case

There are some legal matters you can handle on your own, but a medical malpractice case isn't one of them. With complex medical evidence, special court-filing rules, and high-powered defendants—to name just a few challenges common to most medical malpractice cases—you'll want an experienced legal professional on your side.

Medical malpractice attorneys typically offer free initial consultations during which they'll discuss the process of bringing a lawsuit, as well as the potential strengths and weaknesses of the potential client's case. Learn more:

• why you need a medical malpractice lawyer
• how to find the right medical malpractice lawyer, and
• what to expect at your first meeting with a lawyer.