Contingency Fees

Costs to hire a lawyer are a big concern for those weighing pursuit of a medical malpractice claim.

Fee structures do sometimes vary from attorney to attorney, but most handling medical malpractice lawsuits will do so on a “Contingency Fee” basis. What that means is the lawyer or law firm handling the case won’t charge any fee to the client unless there is a successful conclusion. That is the result of either a pre-trial settlement or a jury verdict in plaintiff’s favor.

At Jeffrey Glassman Injury Lawyers, we believe victims of medical malpractice have a right to an equitable system of justice to seek compensation for their injuries. We recognize that a reasonable contingent fee is critical to ensuring that right.

Benefits of a contingency fee arrangement include:

• No money paid upfront
• You do not have to pay if the claim is unsuccessful

Contingency fees are typically determined ahead of time and involve a pre-determined percentage of losses recovered through litigation. Although most are between 30 and 40 percent, the amount may be negotiable, depending on a number of key elements. This may include:

• The time and resources necessary
• The skill required
• The overall complexity of the lawsuit
• Whether there are certain critical time limitations
• How much expert witness testimony is needed
• Difficulty and novelty of legal questions involved
• Whether collection of critical evidence will require substantial cost
• The amount of customary fee for similar legal services in the surrounding area

While many car accident lawsuits tend to involve similar fact patterns or circumstances, no two medical malpractice cases are going to be alike.

• If your contingency fee is: 35 percent
• You win: $305,000 in a jury trial
• Your attorney will receive: $106,750 in fees

Medical malpractice lawsuits are expensive to bring and they are also highly complex. There are costs that clients do not have to pay upfront. Indeed, many could not afford to bring cases at all if they had to pay the costs upfront. Legal fees and costs go toward funding expert witnesses, researching mountains of medical records, researching case law and presenting dynamic, convincing arguments to the court.

Meritorious medical malpractice claims deserve to be brought. Incompetent or careless doctors, nurses, hospitals and nursing homes need to be held to account. Contingency fees are essential to do that because without this type of arrangement, victims could not afford the hourly rates of highly-skilled attorneys, nor could they afford the upfront costs necessary to prove their case in court. In sum, it grants access to the courts.

Not only does this mean justice for the individual directly harmed, it can serve as a warning and prevent such incidents in the future.

Mass. Gen. Law ch. 231 § 60I places a limitation on contingency fees.

The law states, in part, that attorney fees for services rendered on behalf of claimants in a medical negligence case must be, “Fair and reasonable.”

Rules and guidelines set forth by the supreme judicial court are to be followed. A portion of those guidelines indicate that attorneys can’t be paid any contingency fee for medical malpractice if the court determines the amount of recovery paid – or to be paid to plaintiff – after the deduction of reasonable attorney’s expenses – is less than the total amount of plaintiff’s unpaid past and future medical expenses. There are exceptions when the contingent attorney’s fee is:

• 20 percent or less of plaintiff’s recovery;
• Is reduced to 20 percent or less;
• Is reduced to a level that allows plaintiff to pay past and future medical expenses.

Beyond that, attorneys can’t contract for contingency fees in excess of:

• 40 percent of the first $150,000 recovered
• 33 and 1/3 percent of the next $150,000
• 30 percent of the next $200,000 recovered
• 25 percent of any amount by which recovery exceeds $500,000

These limitations are applicable regardless of whether recovery is obtained via arbitration, settlement or court judgment.

One major flaw with contingency fees is that the attorney might not get paid at all, and must be able to absorb those costs:

• Cases drag on for an extended period of time, little money is recovered and the attorney or law firm is out that expense and time.

Another is illustrated by those cases that settle quickly:

• Cases settle quickly and for large sums of money. A medical malpractice plaintiff may feel upset the attorney was paid “more than they deserve.”

Contingencies fees offer access to the best available legal representation for those dealing with injury or death resulting from preventable medical error. But choosing the Massachusetts medical malpractice law firm best capable of handling your case is a responsibility left to patients and families.