For a patient considering a medical malpractice lawsuit, a paramount question might be, "How much will it cost?" The answer often depends on whether the patient hires a lawyer – almost all do. Believe it or not, in many cases, it ends up costing a patient less to pursue a medical malpractice case with a lawyer than it would have cost if the patient were to pursue the case without a lawyer. In the sections that follow, this article discusses the approximate costs of pursuing a medical malpractice case with and without a lawyer.
Most medical malpractice lawyers use contingent fees. When a lawyer uses a contingent fee, 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, the lawyer doesn't earn any legal fees.
The portion of the award that goes to the lawyer can vary (and sometimes the percentage is restricted under state medical malpractice laws) but the most common contingent fee is 33%. Some arrangements might use different numbers for different circumstances. For example, an arrangement might provide for a 33% contingent fee if the case settles before trial or a 40% contingent fee if the case goes to trial.
Even aside from attorney’s fees, medical malpractice cases are costly to pursue. The most significant expense might be for expert witnesses. Expert witnesses can charge hundreds or even thousands of dollars per hour to review documents and testify during depositions and trials. It is not uncommon for an expert witness to spend a total of 20-30 hours on a case, between preparation time, travel, and in-court time.
Other costs include court filing fees and fees necessary to obtain copies of medical records from hospitals.
In most fee arrangements, the attorney will pay for the costs of the lawsuit initially. Then, if the case is successful, the attorney will take the costs out of the winnings before splitting up the rest of the award based on the contingent fee arrangement.
So, as an example, a patient and a lawyer might agree on a 33% contingent fee, with the lawyer shouldering the costs of litigation, 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. 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 contingent fee of $30,000. The patient would be left with $60,000.
A patient who pursues a medical malpractice case without a lawyer will not have to split the winnings with anyone. But that patient will have to pay the costs of the lawsuit up front. It usually costs between $100 and $500 just to file a lawsuit. The patient should also expect to have to pay a fee to whatever hospitals or doctors are in possession of the medical records in the case (for copying or other transfer of the file). These fees vary depending on how many pages of records exist.
Aside from the hours you'll likely spend familiarizing yourself with your case, crafting a strategy, and figuring out how to comply with court procedure, the largest monetary expense will probably come in the form of expert witness fees. The size of these fees varies significantly based on the experience of the witnesses, number of experts required, and the amount of work that will be required. As a general rule, you should expect the total expert witness fees to be in the tens of thousands of dollars. But since your experts’ opinions will likely do the most to persuade the jury as to how your doctor's conduct was negligent under accepted medical standards, it may turn out to be money well spent.
It should be noted that medical malpractice cases are not like fender-benders. These cases typically involve incredibly complex medical and legal concepts, not to mention defendants and insurance carriers who are ready to fight you at every step. Before you decide to go it alone, it may be wise to at least discuss your case with an experienced medical malpractice attorney, via a free consultation.
For more on this, check out our article on Filing a Medical Malpractice Claim Without a Lawyer.