Although there have been several recent attempts to enact federal legislation that would limit the amount attorney's can recover in medical malpractice cases, there currently is no federal statute on the matter. However, states have enacted a variety of different statutes that deal with limiting attorney's fees in such cases. There are currently two main types of regulation: percentage limitations on attorney's fees and courts with review ad approval statutes. 

Percentage Limitations on Medical Malpractice Attorney's Fees

Sixteen states currently have a statute or court rule that establishes a specific limit or sliding scale on contingency fees attorneys may charge clients who file a medical malpractice claim. The following are examples of how several different states have addressed the issue:

  • California: Sliding scale fee may not exceed 40% of first $50,000, 1/3 of the next $50,000, 25% of the next $500,000, and 15% of damages exceeding $600,000.
  • Tennessee: Fee may not exceed one third of overall recovery.
  • Wyoming: When recovery is $1 million or less: 1/3 if the claim is settled within 60 days of filing, or 40% if settled after 60 days or when judgment is entered; 30% if over $1 million. Parties may agree to pay more.

States with Court Review and Approval

In some states, courts are either allowed or required to determine the reasonableness of the attorney's fee. The following are the factors most courts will focus on when determining the reasonableness of the requested fee:

  • The time and labor required; the skill requisite to perform legal duty properly
  • The fee customarily charged in the locality for similar legal services
  • The amount involved and the amount obtained
  • The time limitations imposed by the client
  • The nature and length of the lawyer's relationship with the client
  • The experience, reputation, and ability of the lawyer to perform the service
  • Whether the fee is fixed or contingent
  • The terms of the fee agreement

Should I Contact an Attorney about My Malpractice Claim?

If you have been the victim of medical malpractice, and with to file a lawsuit, the advice and counsel of a personal injury attorney can be extremely helpful to this process. Because of the complex nature of this area of law, and the large amount of damages usually at stake, it is beneficial to discuss you situation with an experienced attorney before taking you case to court.