How Much Will It Cost to Bring a Medical Malpractice Claim?

Out-of-pocket costs to bring a medical malpractice lawsuit are typically covered by the injured patient's attorney, but there are some things to watch out for.

Updated by , J.D. · University of San Francisco School of Law

As with many kinds of legal action, filing a medical malpractice claim comes with certain costs, but for most injured patients the expenses of bringing a lawsuit are covered by their lawyer, and payment for the lawyer's services will come as a percentage of any compensation received. Let's take a closer look at the financial side of things in a medical malpractice case.

Lawyer Contingency Fees In Medical Malpractice Cases

Most medical malpractice lawyers work under a contingency fee agreement, which means the lawyer's fee for representing the injured patient is paid as a percentage of any court award or settlement. So, if the claim can't be settled out of court, and/or if the medical malpractice lawsuit goes to trial and the patient loses, the lawyer doesn't earn any legal fees.

The most common contingency fee percentage in a medical malpractice case is around 33 percent. Some "sliding scale" agreements set a different percentage for different circumstances. For example, the agreement might provide for a certain percentage if the case settles before pre-trial proceedings begin, a higher percentage if the case settles after that point, and a still higher share if the case goes to trial.

In a number of states, the percentage that a medical malpractice attorney can receive is regulated by statute, often broken down by the total amount received by the client. For example, in New York:

  • an attorney can take 30 percent of the first $250,000 a medical malpractice client receives
  • 25 percent of the next $250,000
  • 20 percent of the next $500,000
  • 15 percent of the next $250.000, and
  • 10 percent of any amount over $1.25 million.

Learn more about how medical malpractice lawyers are paid.

Medical Malpractice Case Expenses

Even aside from attorney's fees, medical malpractice cases are costly to pursue. The most significant expense in a medical malpractice lawsuit is often the fee 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 to 30 hours on a case, between preparation time, travel, and in-court time. But since your experts' opinions will likely do the most to prove your medical malpractice case, it may turn out to be money well spent.

Other costs include court filing fees and fees necessary to obtain copies of medical records from hospitals.

In most attorney-client arrangements, the attorney will pay for the costs and expenses of the lawsuit initially. Then, if the case is successful, the attorney will take the costs out of the settlement or court award 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 percent contingency fee, with the lawyer shouldering the costs of litigation, but in the event that the case 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 plaintiff would receive $60,000 of the total settlement.

What If You Represent Yourself?

Filing a medical malpractice case without a lawyer means not having to share a settlement or court award with anyone else. But besides the risks inherent in handling a complex case like this on your own, you'll have to pay the costs of the lawsuit up front. It usually costs between $100 and $500 just to file the lawsuit in court, and you'll almost certainly need to pay to acquire copies of all medical records that could be relevant to your case. And as touched on above, expert witness fees can reach into the tens of thousands of dollars.

It should be noted that a medical malpractice lawsuit is not like a car insurance claim after a fender-bender. A medical malpractice case typically hinges on incredibly complex medical and legal concepts, not to mention defendants and insurance carriers who are ready to fight you at every step. Before going it alone, it may be wise to at least discuss your situation with an experienced professional. You can use the tools right on this page to connect with a medical malpractice lawyer in your area, or learn more about finding the right medical malpractice lawyer for you and your case.

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