How do medical malpractice lawyers get paid?

September 27, 2022

Medical malpractice law is complex. Determining whether you may have a medical malpractice claim will require the assistance of an attorney who specializes in cases against healthcare providers. You may be wondering: "Do I need a lawyer?", "How can I afford one?", or "How do medical malpractice lawyers get paid?"

While the process can seem intimidating, fortunately, most medical malpractice attorneys charge on a contingency fee basis. This means that the lawyer fronts all the case expenses and, only if they win, collect a flat, predetermined percentage of the total settlement or jury award.

While not all lawyers adopt a contingency fee arrangement, knowing how your attorney intends to charge for their services can be crucial in understanding where to turn for help. If you're not sure how the process works or all it entails, this article can help.

What is medical malpractice?

Medical errors are the third leading cause of death in the United States. Medical malpractice involves an act or acts of negligence from a healthcare provider, which leads to patient injury or death. It can be beneficial to understand the legal standards of and situations and events that constitute malpractice, especially when you have a reason to think you should file a lawsuit. Medical malpractice can include events such as a misdiagnosis or failure to diagnose, breaches of informed consent, prescription or administration errors, and anesthesia or surgical errors. Despite preventive measures from medical practitioners and periodic updates to medical and patient rules and regulations, errors still happen and can be fatal.

Contingency fees are dictated by case difficulty

The biggest hurdles in a medical malpractice case are often:

  • proving that the medical provider's conduct amounted to a negligent act or omission;
  • proving that the negligent act or omission was the cause of harm to the patient'; and
  • proving the extent of damages.

Proving that a medical provider's actions (or inaction) amounted to medical negligence is difficult. Not all negative medical outcomes are the result of wrongdoing. For this reason, the success of a medical malpractice lawsuit will often depend on expert proof. In addition, under Kentucky statute, all medical malpractice lawsuits filed in Kentucky must be accompanied by an affidavit that states the claimant has consulted with a qualified expert before filing, and has concluded on the basis of review and consultation with the expert that there is a reasonable basis to commence the action.

For these reasons, before a lawsuit is filed, a medical malpractice lawyer will spend a tremendous amount of time, effort, and expense locating and working together with one or more experts to understand the medicine involved, and whether there are grounds for a medical malpractice case. This added layer of difficulty adds to the attorney's risk in taking a case, even for investigation purposes.

Common Expense Arrangements for Medical Malpractice

Almost all medical malpractice lawyers operate under a contingency fee arrangement. This means the lawyer and his or her firm will bear all out-of-pocket costs and take a flat, agreed-upon percentage of the settlement or jury award. In other words, the lawyer only earns a fee if he or she achieves a successful case resolution, either by settlement or jury verdict.

A typical contingency fee percentage in a medical malpractice case is around 40%. This amount will vary from law firm to law firm. Some law firms may agree to a sliding scale based on when the case resolves. For instance, a firm may charge a 35% contingent fee for a case settles before a lawsuit is filed, 40% if the case is settled after a lawsuit is filed, and/or 45% if the case resolves after trial commences. As for the costs of litigation, which are substantial in medical malpractice cases, nearly all lawyers pay for such costs up front, and are reimbursed if/when the case resolves.

Free consultation

Determining whether you or a loved one may have a medical malpractice claim can be a daunting and often emotional task. Don't let fear of legal fees or expense prevent you from reaching out to an experienced medical malpractice lawyer.

The Powell Klausing PLLC legal team is experienced and well known for our handling of medical malpractice claims. We are happy to provide free initial consultation to help you determine whether you may have a potential claim for medical malpractice.