MEDICAL MALPRACTICE AND PERSONAL INJURY LAW BLOG

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Do I Need to Pay My Medical Malpractice Lawyer a Retainer?

After a serious medical injury, your finances may be a major concern. Even if you think you have a strong case against the doctors and hospitals, you may worry that you won’t have the money to file a lawsuit. However, you can feel confident that with a strong medical malpractice case, most attorneys will take your case on a contingency basis. This means you won’t have to pay anything upfront and you do not need to pay a medical malpractice lawyer a retainer. 

If you suffered an injury caused by a medical error, a medical malpractice lawsuit will allow you to claim damages for your losses. If you have any questions about the fee structures for legal representation or how contingency fees work, contact our medical malpractice law firm for answers.

What Is the Fee for Medical Malpractice Cases? 

Medical malpractice cases, like most civil lawsuits in the United States, use private attorneys to handle the claims. Professional attorneys are like other professional jobs, and require payment for services. In a medical malpractice case, who pays for the legal expenses?

There are generally two sides in a medical malpractice case. The plaintiff is generally the injury victim who suffered harm caused by medical negligence. The defendants may include the doctors, hospitals, or other healthcare workers involved in the case. Each party may have their own attorney to act as an advocate for the case. 

The plaintiff’s medical malpractice lawyer, the one who will file the claim, gather evidence in support of your case, and negotiate a strong settlement offer, will represent your interests. The defense lawyers will generally act on behalf of the doctors, hospitals, and insurance companies

The fee structures for the lawyers in a medical malpractice case are very different, depending on who they represent. The plaintiff’s attorney (lawyer representing the injury victim), usually takes the case on a contingency basis, with no upfront costs. The defendants’ lawyers work for a fee, based on a contract rate, hourly rate, and possibly a retainer. 

Contingency Based Malpractice Representation

Most personal injury and malpractice cases are based on contingent fee arrangements. With a contingency fee agreement, the lawyer agrees to represent the client in return for a percentage of any award recovered for the client. Generally, the client pays nothing upfront and the attorney advances all fees and costs. The lawyer may only collect compensation for the work done if the client wins the case.

It is important to fully understand how the contingency fee arrangement works, what risk the attorney is assuming, and how much you may recover in a settlement or jury award. If you have any questions about the fee agreement, talk to your attorney about your options.

No Costs Upfront

There are several benefits of a contingency fee agreement for the injury victim. Many personal injury victims do not have a lot of money to pay towards legal representation because they are dealing with medical bills, stress, injuries, and may be unable to work. If an injury case was just based on how much you could afford at the time, the hospitals would almost always win because they have deeper pockets. 

A contingency agreement levels the playing field, and allows the injury victim to find a top medical malpractice lawyer without having to worry about paying for legal fees. According to the Pennsylvania Supreme Court in Richette v. Solomon:

“The person who has, without fault on his part, been injured and who, because of his injury, is unable to work, and has a large family to support, and has no money to engage a lawyer, would be at the mercy of the person who disabled him because, being in a superior economic position, the injuring person could force on his victim, desperately in need of money to keep the candle of life burning in himself and his dependent ones, a wholly unconscionable meager sum in settlement or even refuse to pay him anything at all.”

Even in a minor car accident, the injury victim may not have transportation to go to work and be sent to collections because they are unable to pay medical bills. The injury victim should not have to suffer at the hands of a negligent driver just because the other driver had more money. 

Only Pay When You Get the Award

Another benefit of the contingency fee agreement is that you can be sure your attorney is motivated to maximize the compensation available to you. With an experienced and successful medical malpractice lawyer on your side, you know they will take your case seriously and fight vigorously for your rights. If they don’t win your case, they don’t get paid. The more money your lawyer wins for you, the more they will be able to recover. 

Limits on Contingency Fee Arrangements in Some States

Some states limit the percentage of contingency payment a lawyer can contract with the injury victim. This generally means that the law firm could not collect a greater percentage of the award than the state limit. However, even in states without a contingency cap, lawyers are held to ethical rules to ensure the fee schedule is not excessive. 

Contingent Fees in Baltimore

Maryland does not put a strict limit on contingency fees. Under Maryland Attorneys’ Rules of Professional Conduct:

A contingent fee agreement shall be in a writing signed by the client and shall state the method by which the fee is to be determined, including the percentage or percentages that shall accrue to the attorney in the event of settlement, trial or appeal; litigation and other expenses to be deducted from the recovery; and whether such expenses are to be deducted before or after the contingent fee is calculated. The agreement must clearly notify the client of any expenses for which the client will be responsible whether or not the client is the prevailing party. Upon conclusion of a contingent fee matter, the attorney shall provide the client with a written statement stating the outcome of the matter, and, if there is a recovery, showing the remittance to the client and the method of its determination.”

Contingency Limits in Chicago

Illinois puts a limit on the amount of contingent fees an attorney can receive in an Illinois medical malpractice action. Under 735 ILL. Comp. Stat. Ann. 5/2-1114, “In all medical malpractice actions the total contingent fee for plaintiff’s attorney or attorneys shall not exceed 33 1/3% of all sums recovered.” 

Additionally, lawyers in Chicago still have to have a fee agreement that is not excessive. Under Illinois Rules of Professional Conduct, “A lawyer shall not make an agreement for, charge, or collect an unreasonable fee or an unreasonable amount for expenses.”

Contingency Fees in Philadelphia

Pennsylvania medical malpractice cases do not have strict limits on contingency fee percentages. The injury victim and attorney can agree on a fair fee percentage agreement to help the victim recover fair compensation while covering the legal costs of assuming the risk in a malpractice case. Under Pennsylvania Rules of Professional Conduct 1.5, a lawyer shall not enter into an agreement for a clearly excessive fee, based on factors including: 

  • Whether the fee is fixed or contingent
  • The time and labor required
  • The skill requisite to perform the legal service properly
  • The fee customarily charged in the locality for similar legal services
  • The experience, reputation, and ability of the lawyer or lawyers performing the services

Legal Costs in a Medical Malpractice Case

In addition to attorneys’ fees, a medical malpractice case has legal costs. In a contingency agreement, the writing should indicate what costs will be deducted before and after the contingency fee is calculated. The costs of a malpractice case include all the expenses to get the case to where it is. Legal costs in a malpractice case can be significant, including: 

  • Depositions
  • Filing fees
  • Medical examinations
  • Postage and copies
  • Reproducing and storing medical records
  • Hiring expert witnesses
  • Shipping costs
  • Subpoena costs
  • Court costs
  • Sheriff’s and service fees
  • Investigation fees
  • Travel expenses

A legal services agreement should also inform the client of any expenses that the patient will be responsible for, based on the outcome of the case. It is important to have a clear understanding of the fee structure for your case when finding a malpractice attorney. If you have any questions about your case and how much you will receive in an award, talk to your medical malpractice attorney. 

Importance of Medical Experts and Reports

It may seem like this is just a long list of fees but many of these costs are necessary for a strong malpractice case. In most medical malpractice cases, the plaintiff is required to utilize the services of a medical expert to show the court there is a valid claim and to convince the jury that the injury was caused by malpractice. 

For example, to file a malpractice claim in Maryland, the plaintiff must file an affidavit of merit within 90 days of filing a Health Care Alternative Dispute Resolution Office claim. Without an affidavit from a qualified medical expert, the malpractice claim may be dismissed. This requires a consultation with an expert before the case can even really get started. Each expert consultation and report requires an expert witness fee. 

Expert witnesses and expert reports may also be required to show negligence and causation to prove medical malpractice. Additional experts may be necessary to show the likely future expenses and treatment required as a result of the medical injury. In a jury trial, medical experts can educate and persuade the jury to help you win your case.

What Is a Retainer for a Law Firm?

A retainer is a fee that the client pays upfront before the lawyer bills for any services. A retainer acts like a deposit, to guarantee a certain amount of payment that the lawyer can draw from to pay for their fees. In some types of legal cases, the attorney will ask for a retaining fee in advance. The money is placed in a trust account. After the lawyer performs the contracted service, the lawyer can take money out of the trust as payment. If there is money left after the work is completed, it may be returned to the client. 

Some types of legal work regularly use retainers. Common cases that could use a retainer include: 

  • Criminal defense
  • Business law
  • Drafting contracts
  • Divorce or child custody disputes

However, retainers are almost never used in a medical malpractice claim by an injured patient. The injured patient may not have enough money to pay for the legal services. The injury victim of a medical accident may already have a hard enough time paying for their medical bills or be unable to work because of their injury. 

Retainers for the Insurance Companies

Retainers fees may come into play on the defense side of medical malpractice legal representation. The defense attorneys represent the interests of the medical malpractice insurance companies, hospitals, doctors, and the healthcare industry. Even when the defense lawyer is representing a doctor accused of medical malpractice, the defense attorney is generally paid by the insurance company

Fees for insurance defense law firms can be based on several payment arrangements, including hourly billing, fixed fees, and advances. Generally, the insurance companies have a lot of negotiating power and will negotiate special fee arrangements with the medical malpractice defense lawyers. It is not surprising that insurance companies are in the business of making money and want to do what they can to hold onto it, even after a patient is injured because of a medical mistake. 

Questions About Fee Arrangements in Medical Malpractice? 

Filing a malpractice claim may be the only way to recover compensation for your injuries after a medical error. However, taking a telemedicine error case to court may also help improve care for others and help other families avoid a similar tragedy. 

If you are unsure whether a telemedicine error was the cause of your medical injury, medical malpractice attorneys can answer your questions and guide you through the process. Talk to experienced trial attorneys who can review your case, get an expert’s review, and help you understand your legal options to file a claim after a telehealth injury. Contact Gilman & Bedigian online or at 800-529-6162 for a free consultation.

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