Medical malpractice is a legal wrong that occurs when a doctor or other medical professional causes injury to a patient by falling below the standard duty of care that is required of them when:
- They are actively managing;
- They are diagnosing or have diagnosed a patient; and/or
- They are actively treating a patient.
It is important to note that the deviation from the standard duty of care that is required of all medical professionals is generally the result of an act of negligence done by the medical professional. Medical malpractice laws are the set of laws that allow an injured patient, commonly referred to as a plaintiff in a civil lawsuit, to bring a private civil lawsuit against a negligent medical professional.
Malpractice laws also allow injured persons to recover damages for the harms that were caused by the professional’s substandard conduct. Importantly, damages may also extend to the facility or medical group in some cases.
Whether or not a medical professional or medical facility can actually be held liable for a patient’s injuries will largely depend on the specific facts of the medical malpractice case. Additionally, the medical malpractice laws that are enacted in the state in which the harm occurred will also influence who can be held liable and what damages are available to an injured plaintiff. In fact, there are limits on damages that may be recovered in medical malpractice claims in most states.
Are There Limits on the Fee an Attorney Can Charge in a Medical Malpractice Case?
Similar to how the total amount of damages may be limited in medical malpractice cases, there are many states which have also put limitations on attorney’s fees in medical malpractice cases. In other words, there are limits on the total amount of fees that an attorney can charge in a medical malpractice case. In a typical medical malpractice case, an attorney will offer to structure the attorney client contract based on a contingency fee.
A contingency fee is essentially the attorney saying that they will take the case without charging the injured person any up front retainer fee, but will take a percentage of the total amount of money that they are able to recover on the injured plaintiff’s behalf as a result of the medical malpractice.
For example, if a plaintiff suffered harm as a result of a doctor breaching their duty to patient, and suffered damages, a law firm may take their case on a contingency fee basis and represent the client and cover all of the necessary case fees and expenses.
As far as case fees and expenses in a medical malpractice case, the fees are typically higher than a normal personal injury case. This is because medical experts will need to be utilized in order to prove that the medical professional that committed the harm breached their duty of care and was the actual cause of the damages suffered by the plaintiff.
If the plaintiff’s attorney is successful in their representation of their client, then medical malpractice attorney fees will be collected from the total amount of the damages recovered by the attorney, which is usually expressed as a percentage of total recovery. Additionally, the percentage of fees that an attorney collects will also typically be based on the current stage of litigation in which a recovery is made.
For example, if the attorney for the injured plaintiff sends an initial demand letter asking for a specific amount of damages to be paid by the medical professional alleged to have harmed the plaintiff, and the medical professional, or more likely their medical insurance provider, accepts the demand and pays the demanded amount, then the case will be settled at that point. At that point in the litigation process the case would be typically labeled as being in the pre-litigation stage.
The attorney for the plaintiff may then, typically as outlined in the attorney client contract, take a lower percentage of the total amount of recovery, such as 30%. However, if the case goes all the way to trial, then the attorney for the injured plaintiff may take a higher percentage of the total amount recovered, such as 55%, due to the increased amount of work and costs associated with getting the lawsuit to that point in the litigation process.
Importantly, if the attorney for the injured plaintiff fails to make a recovery for the damages suffered by the plaintiff, then the attorney will typically eat the costs associated with the lawsuit, and the plaintiff will not have to pay them any fee. However, this is not always the case, so it is important to review any contingency fee contract that is presented to you in order to determine what fees you, as the injured party, would be responsible for, if any.
Percentage Limitations on Medical Malpractice Attorney’s Fees
As of 2022, there are currently 31 states that have enacted laws regarding limitations on medical malpractice attorney’s fees. The following list contains examples of percentage limitations on medical malpractice attorney’s fees:
- California: California has enacted laws placing limitations on medical malpractice cases based on a sliding scale.
- Attorney’s fees in California are not to exceed 40 percent of first $50,000 in total recovery, 33-1/3 percent of next $50,000 recovered, 25 percent of next $500,000 recovered, and 15 percent of any damages recovered that exceed $600,000;
- Connecticut: Similar to California, Connecticut has enacted laws placing limitations on medical malpractice cases based on a sliding scale.
- Attorney’s fees in Connecticut are not to exceed an amount equal to a percentage of 33-1/3 percent of first $300,000 recovered, 25 percent of next $300,000 recovered, 20 percent of next $300,000 recovered, 15 percent of next $300,000 recovered, and 10 percent of any damages recovered that exceed $1.2 million.
- In Connecticut however a plaintiff can actually waive the percentage limitations on attorney’s fees; and
- Illinois: Illinois also places percentage limitations based on a sliding scale.
- Attorney’s fees in Illinois are not to exceed 33-1/3 percent for the first $150,000 recovered, 25 percent for the next $850,000 recovered, and 20 percent of any amount over $1 million of the total sum recovered.
It is important to note that the above list is not a comprehensive list of all of the states that place percentage limitations on attorney’s fees in medical malpractice cases. As such, it is important to consult your state’s local laws on medical malpractice to see if your state has a law that places limits on attorney’s fees.
States with Court Review and Approval
In addition to laws regarding percentage limitations on attorney’s fees in medical malpractice cases, there are also states that have passed laws that require court review and approval of attorney’s contingent fees in a medical malpractice case.
In the states that require review and approval of attorney’s fees in medical malpractice cases, courts will typically look at the following factors when determining the reasonableness of the attorney’s contingency fee:
- The time and labor required to completely litigate the malpractice claim for the injured party;
- The contingency fees customarily charged in the locality for similar legal services and cases;
- The total amount of damages involved in the case and the amount of damages that were recovered;
- The total amount of fees, including expert witness fees, that the firm expected and actually spent on the matter;
- The experience, reputation, and ability of the attorney(s) or firm;
- Whether or not the fee was fixed or contingent; and
- The written and agreed terms of the attorney client fee agreement.
Should I Contact an Attorney about My Malpractice Claim?
If you believe that you have been harmed as a result of medical malpractice, then it is in your best interests to immediately consult with an experienced personal injury attorney.
An experienced personal injury attorney will be able to analyze your claim and help you determine if you would be successful in holding the medical professional alleged to have harmed you, or the facility, responsible for the damages you have suffered.
Additionally, an attorney will also be able to take your case on a contingency fee basis, and help you pursue the costly medical malpractice claim at no cost to yourself. An attorney will also be knowledgeable regarding medical malpractice laws, as well as expert witnesses that may be utilized in your case. Finally, an attorney will also be able to initiate a civil lawsuit, and represent your interests in court, as necessary.