Medical Malpractice Claims: How Much Does a Lawyer Cost?

 

If you’re thinking of suing a doctor or hospital for medical malpractice, you’re probably wondering whether you can afford to hire a lawyer to help with your claim. We surveyed readers across the U.S. who recently had medical malpractice cases, to find out how much their attorneys charged. Here’s what we learned.

How Do Medical Malpractice Lawyers Charge for Their Services?

Attorneys use different methods of charging for their services in connection with medical malpractice claims:

  • Fixed contingency fees. Under what’s known as a contingency fee arrangement, your attorney receives a fee only if you receive monetary compensation, in the form of an out-of-court settlement or an award after trial. The contingency fee will be a percentage of your total compensation. If you don’t get any money, you don’t pay your lawyer anything. (But check the fine print of your contract to see who will absorb the day-to-day costs of pursuing your case; more on this later.)
  • Sliding-scale contingency fees. Under this arrangement, the lawyer will receive a lower percentage if your claim is settled before any court appearance, with the amount going up as the case progresses toward trial and requires more work by the lawyer.
  • Hourly fees. In a few cases, lawyers charge an hourly fee for their work. If they do, they’ll often ask for an up-front “retainer” (a sort of down payment). Then they’ll subtract the fees as they earn them and give you an accounting of any balance.

Our survey showed that the vast majority (92%) of readers who hired attorneys had a fixed or sliding-scale contingency fee arrangement. This isn’t surprising. Medical malpractice cases are very complicated, and they take a lot of time to prepare. Very few patients would be able to afford hourly fees. So it’s common practice for lawyers to agree to contingency fees if they take on a case.

What’s the Typical Contingency Fee Percentage?

When lawyers agree to work on your case for a contingency fee, the percentage they’ll charge can vary quite a bit—from less than 25% to more than 40%—depending on where you live and the individual attorney. More than four in ten readers paid between 30 and 39%, with 33% as the most commonly reported fee. The overall average was 31%. These results fall in line with the common practice among lawyers to charge about one-third of settlements that are reached before a trial date is set.

Costs vs. Fees

Medical malpractice cases tend to be very complicated and expensive to pursue. The costs for building your case include:

  • requests for medical records
  • fees for expert witnesses
  • court fees for filing the lawsuit, and
  • deposition transcripts.

These expenses can be especially high in medical malpractice cases. It can cost up to $1,000 just to order copies of your medical records from all of your health care providers. And in order to prove that you have a valid claim, you’ll need medical experts to establish:

  • what level of care and expertise was appropriate under the circumstances
  • how the health professional fell short of providing care that met that standard in your case, and
  • how that failure (“negligence” in legalese) caused you harm.
You may also need economic or vocational experts to prove the extent of your losses as a result of the medical error. These cases often come down to a battle of the experts, and hiring those experts can be costly—as much as $50,000 in big malpractice cases. (For more details, see our article on costs in medical malpractice cases.)

As with attorney’s fees, lawyers have different arrangements for paying these expenses. Your attorney may:

  • ask you for a “cost retainer” and then withdraw from that fund as needed
  • ask you to pay the costs as they come up, or
  • agree to advance the costs and deduct them from any settlement or award that you receive.

Is a Lawyer Worth the Cost?

Our survey showed that readers who hired lawyers were nearly twice as likely to receive a settlement or award, compared with those who pursued medical malpractice claims on their own. A medical malpractice lawsuit is a complex undertaking on a number of fronts—legal, medical, and procedural—and it often takes an experienced professional to get a favorable result.

About This Report

The data referenced above is from Martindale-Nolo Research's 2017 medical malpractice study, which analyzed survey responses from readers who had medical malpractice claims and had researched hiring a lawyer. The names of any quoted readers have been changed to protect their privacy.

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