Most medical malpractice attorneys take their cases on a contingent basis. This means that their fee is contingent upon obtaining a settlement or winning a trial. Under continent fee arrangements, the lawyer and client settle on a percentage of a settlement or jury award that the lawyer will keep if the case is successful. If the case is lost at trial or there is no settlement reached with the defendant, the attorney is not paid.
Most contingent fee agreements provide for a fee award of 33 to 40 percent of any recovery, plus litigation costs. Because prosecuting a medical malpractice case usually involves the hiring of experts, they can be very costly. As such, the litigation costs can take up a large portion of the client’s percentage of the award. While plaintiffs may claim that a 40 percent contingent fee is excessive, malpractice lawyers argue that such a fee is not excessive because of the risk of spending a great deal on experts and then losing the case. In light of the high cost of bringing a medical malpractice case to trial, malpractice attorneys are required to carefully screen medical malpractice cases before agreeing to prosecute one.
Most states have laws or regulations governing attorneys fees. Some of these laws limit the percentage a lawyer can take in a contingency agreement. Others regulate what types of cases can be handled on a contingent basis. Still others limit the percentage of a fee the lawyer can take as litigation costs. Some states allow for varying fee agreements, depending on the amount recovered in the case. For example, under Florida law, contingency fees may not exceed 40 percent of the first $1 million, 30 percent of the amounts recovered between $1 million and $2 million, and 20 percent of all amounts over $2 million. Likewise, California law prohibits attorneys from charging more than 40 percent of the first $50,000 of any recovery, 33 percent of the next $50,000, 25 percent of the next $500,000, and 15 percent of any amount over $600,000.
Some medical malpractice lawyers will agree to charge an hourly fee for prosecuting a medical malpractice case. For many plaintiffs, such an arrangement would be cost-prohibitive because medical malpractice cases often take a great deal of time. Hourly fee agreements are sometimes used for cases that a lawyer believes would be very difficult to win but that the client adamantly wants to bring. Using such an agreement, the client can have his or her day in court, and the lawyer can be assured payment.