Medical Malpractice Attorney Fees

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Jeffrey Johnson is a legal writer with a focus on personal injury. He has worked on personal injury and sovereign immunity litigation in addition to experience in family, estate, and criminal law. He earned a J.D. from the University of Baltimore and has worked in legal offices and non-profits in Maryland, Texas, and North Carolina. He has also earned an MFA in screenwriting from Chapman Univer...

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Written by Jeffrey Johnson
Insurance Lawyer Jeffrey Johnson

UPDATED: Jul 16, 2021

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Medical malpractice attorneys do not come cheap; a client can expect to pay thousands of dollars in all but the smallest of cases. 

Attorneys are generally paid in one of three ways: flat-rate, hourly, or on a contingency basis. It’s important to determine which type is best for a particular lawsuit during the initial meeting with an attorney, before any work is put toward the case. Below are explanations of each payment type, with a discussion of how litigation costs are related to attorney fees. 

Flat-rate Fee Structure

A flat-rate fee structure is very uncommon in medical malpractice cases. The most common scenarios under which flat rates are used are for simple legal proceedings such as wills, landlord/tenant cases or simple business formations.

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Hourly Rates

With hourly rates, client and attorney agree upon an hourly rate at which time the attorney will bill the case. For medical malpractice cases, on an hourly basis, a person can expect to pay between $200 to as much as $600 per hour of attorney work. Hourly rates are dependent upon the experience, expertise and reputation of the attorney doing the work.

It is very common for experienced attorneys to bill at a much higher rate than less inexperienced attorneys in the same firm. Due to the sheer amount of time involved in medical malpractice cases, hourly rate agreements are relatively uncommon.

Contigency Fee Arrangements

Medical malpractice cases generally involve hours upon hours of paperwork, whether it be research, responding to or drafting discovery requests and motions, or prepping experts and other witnesses, the time involved is consistently measured in the hundreds of man hours. As such, most medical malpractice attorneys agree to prosecute a plaintiff’s claim on a contingent basis. This means that the attorney takes a percentage of any favorable verdict or settlement in exchange for providing representation.

The most common arrangement involves an attorney taking one third of any damages collected. So if $100,000 is awarded, the plaintiff’s attorney would collect $33,333. The amount an attorney can charge on a contingent basis is usually regulated by local law, and in most places cannot exceed a specific amount. The one-third arrangement is, by far, the most common.

Medical malpractice attorneys are very selective about the cases they take because their fees are normally not guaranteed; they only take cases they believe will result in sufficient fees, be it through settlement or jury verdict. Medical malpractice fees that carry potentially huge verdicts are usually the most complex cases, and are often difficult and expensive to litigate. Most attorneys put so many hours into a case that their fee, if calculated on an hourly basis, would be deeply discounted. Contingency fees, however, enable a potential plaintiff who could not afford an attorney on an hourly basis to still obtain representation. 

Court Costs on Top of Attorney Fees

In addition to attorney fees, any legal bill also contains costs and expenses related to the litigation such as court fees, copy fees, postage and mileage. But in medical malpractice cases, the costs can increase exponentially, especially with the added burden of required expert testimony. When dealing with a contingency fee arrangement, costs and expenses are usually fronted by the attorney or firm, to be repaid over and above the lawyer’s fee once a settlement is agreed upon or a verdict is awarded. Clients are typically responsible for payment regardless of the outcome of the case, but firms will often waive costs if they lose a case.  These are written off as part of the cost of doing business.

Depending on the rules of the particular jurisdiction, costs and fees can be awarded to the prevailing attorney. In these situations, the losing party is required—by order of the court—to reimburse the prevailing attorney for the actual cost of the case. What constitutes actual costs and the criteria used to calculate a reasonable fee also vary by jurisdiction. 

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