Attorney’s Fees and Medical Malpractice Litigation

A medical negligence lawyer in Cleveland, OH is frequently asked: how am I going to pay for this litigation?  To be sure, medical negligence lawsuits are complex, time-consuming and extremely expensive.  Case expenses, including expert fees, court costs and other litigation expenses, can exceed $100,000.00.  In addition, attorneys who represent patients who have been injured by a medical error or medical mistake will spend hundreds of hours during the course of investigation, the discovery process, medical research and trial.  This time, if compensated for on an hourly basis, might approach $100,000.00 as well.  How can a client afford this?

Most states still permit lawyers to work on the basis of a contingent fee.  A contingent fee is one where the lawyer obtains a percentage of the recovery as a fee for services rendered.  The fee in most medical negligence cases is 40% of the recovery.  This may sound like a lot, and it is.  But consider several factors.  First, some States restrict the fees that lawyers can recover in medical malpractice litigation.  Because of the risk faced by attorneys who pursue these claims, injury victims in those States cannot find a lawyer when the damages are low, the costs are too high or the outcome too uncertain.  The impact of this lack of access to the courts falls disproportionately on injured children, the poor, the elderly and anyone other than breadwinners who have a long life expectancy.

The second major reason for a high contingent fee in medical malpractice lawsuits is that they involve tremendous risk.  Consider that lawyers typically charge 33⅓% for automobile accident cases when liability in those cases is already established by the police officer’s investigation.  In addition, expenses are limited to having treating physicians prepare a report detailing the nature and extent of the patient’s personal injuries and relating to the motor vehicle accident to those injuries.  Typically, the work involved in preparing the case for settlement, most of which can be performed by a paralegal, is limited.  Case expenses will be well below $10,000.00 in most cases.  The personal injury lawyer’s time spent on the matter might be valued at $10,000.00 or less.  Since liability has already been established by the police report, recovery is a certainty.  

By contrast, a medical malpractice lawyer faces poor odds at recovering anything.  As an example, the State of Ohio’s Department of Insurance publishes statistics showing that hospitals and doctors win medical negligence trials 77% of the time.  When a medical negligence lawyer loses one of these trials, he or she loses up to $100,000.00 in case expenses and an equal amount of time.  Given the relative risk and expense, the 40% fee is clearly warranted.

Unfortunately, when a client prevails in a lawsuit arising out of hospital negligence, physician negligence, nursing home abuse or nursing home neglect, attorneys’ fees are not recoverable.  So, the attorneys’ fee comes out of damages awarded to the client which are meant to compensate for lost wages, medical expenses and pain and suffering or wrongful death.  This is called the American rule (the English rule is that attorneys’ fees are recoverable).  American courts have decided that fees should not be recoverable, because if fees were recoverable by the defense, very few lawyers or clients would pursue these cases, facing the risk that they may have to pay hundreds of thousands of dollars in fees if they lost at trial.  In this way, the American rule and the contingent fee provide access to courts for victims of medical malpractice who otherwise would not be able to afford to bring a lawsuit.  

Thanks to Mishkind & Kulwicki Law Co. for their insight into medical malpractice claims and litigation.

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