The complexity of medical malpractice cases makes it essential to have a lawyer on your side. Proving that a health care professional provided sub-standard care is difficult, and most states have placed a number of procedural hoops in the path of medical malpractice plaintiffs, in an effort to discourage the filing of frivolous claims.
A medical malpractice attorney will have the experience to navigate toward the best result for your case. But how do you go about choosing the lawyer who's the best fit? We'll help you find the attorney who's right for you and your case.
Where to Start?
Medical malpractice law is something of a specialized field, owing to the overlap of medical and legal issues, as well as the unique procedural challenges that often come with these kinds of cases. Most lawyers who specialize in medical malpractice will either:
- represent injured patients (plaintiffs) who are suing health care providers, or
- defend health care providers (and their insurance companies) against medical malpractice lawsuits.
If you've been injured by a medical error, you'll want to hire what's called a "plaintiff's lawyer." But keep in mind that experienced (and busy) medical malpractice lawyers often turn down a lot more cases than they accept, so the process may take some time. (Learn more about whether you have a medical malpractice case.)
Probably the best place to start is by asking for personal recommendations. Even if your family and friends don't know any medical malpractice lawyers, chances are someone you know has had a good experience with some kind of lawyer, and can put you in touch. Maybe that lawyer has an established relationship with an experienced medical malpractice in their network, or they can otherwise point you in the right direction, and you can go from there. It might not result in a successful match, but it's a good start.
State bar association websites often allow you to research prospective lawyers in terms of areas of specialization, and whether the lawyer has been subject to discipline. And of course, online resources like Lawyers.com let you connect with lawyers via chat and information submission features.
Narrowing Down the Field
One you have a list of potential lawyers, you'll want to pare the list down to a few solid candidates. Here's what to consider.
- Biographical information. Look at biographical information, including whatever you can find online that relates to the lawyers and their law firms. Do they appear to specialize in medical malpractice cases? Do they have any information on the firm website that is helpful to you? Maybe they've taken the time to write some plain-English articles or blog posts that help prospective clients understand what to expect. If these materials give you a level of comfort, that's probably a good sign.
- Memberships in professional associations. Check to see if the attorney belongs to personal injury trial lawyers' associations, such as the American Association of Trial Lawyers ("ATLA") or your state's trial lawyers' association. But it doesn't take much to pay dues and join, so check out whether the attorney is an active member or holds leadership roles that suggest he or she has the respect of other medical malpractice lawyers.
- Online reviews. Check for any online reviews of the lawyers you're considering (but keep in mind that many former clients will rip an attorney if their case is unsuccessful based on outcome alone, regardless of the attorney's role in that outcome, and whether or not it was a viable case to begin with).
- State bar association. Contact your state bar association or visit the bar association's website to find out if the lawyer is in good standing.
How Much Do Medical Malpractice Lawyers Charge?
As you gather information about malpractice attorneys in your area, find out how they charge you for:
- attorneys' fees, and
- case costs and expenses.
Attorneys' Fees
Most medical malpractice lawyers work on a contingency fee basis. Instead of charging you an hourly fee, the lawyer agrees to accept a percentage of any settlement or court judgment you receive. The percentage charged might vary from one lawyer to another. A few states regulate the fees lawyers can charge. Find out if your state is one of them and if so, what fees are allowed by law.
Some lawyers charge a fixed percentage, typically ranging from 33% to 40%. Other lawyers use a sliding scale, and the percentage you pay depends on how much time and work the lawyer puts into the case. For example, if the case settles fairly early on, the lawyer might take 25% as a fee. If the case settles closer to trial, the percentage might increase to 33%. If the case isn't resolved until after a trial or an appeal, the lawyer might charge a 40% fee.
Case Costs and Expenses
In a medical malpractice case, costs and expenses are likely to be substantial. Even a straightforward case might involve expenses of $50,000 or more. If the case is factually or legally complex, don't be surprised to see costs and expenses approaching or exceeding $100,000. Why are they so high?
There are lots of expenses involved in a malpractice suit. But by far, the single largest case expense will be for expert witnesses. Experts are necessary in almost every case. You'll need expert witnesses to testify about what your treating doctor did wrong, what the doctor should have done, and how the doctor's negligence caused your injuries. You'll probably need other experts, too. In a complicated case involving difficult liability questions, mental and emotional injuries, and past and future damages, you might need five or more experts to testify. The charges for each expert likely will exceed $10,000.
Many malpractice attorneys, knowing you can't afford these expenses, will advance them on your behalf. When the case is resolved in your favor, the attorney will deduct the costs and expenses from your settlement or judgment. What happens if you lose the case? Sometimes, lawyers will absorb the amounts advanced as a cost of doing business. Be sure to ask the attorneys you speak to how they handle case costs and expenses.
Asking the Right Questions
Once you've settled on a few good candidates, it's time to contact them, either by email, phone, or through their firm's website (many firm sites have a "chat" feature these days, where you can type a message to a firm representative and get a response in real time, and start a dialogue that way.) Here are some points to cover:
- Ask what percentage of the firm's caseload is devoted to medical malpractice; usually, the higher the better. Proving medical malpractice is a tall order, and experience is invaluable.
- Find out what portion of cases go to trial rather than settle. If the firm has a reputation for settling, the insurance companies might know that, and negotiate accordingly.
- Ask for details on the attorney's fee agreement and payment of case costs. You want a medical malpractice lawyer who will work for a contingency fee. Also, will the lawyer advance case costs and expenses on your behalf? If you lose the case, what happens to those amounts? Must you repay the lawyer, or will the lawyer absorb that loss? (Learn more about the financial side of things in our guide to legal services and billing rates.)
- Consider any special needs you have. For example, could you benefit from an attorney who speaks a language other than English?
- Ask about a face-to-face appointment if it's important for you to meet with the attorney in person, but you shouldn't necessarily cross a lawyer off your list just because he or she can't schedule a meeting on short notice. Good medical malpractice lawyers are busy, so they may not be able to spend as much time as they would like with prospective clients.
- Ask about the firm's practice of delegating work to administrative assistants, clerks, paralegals, and other support staff. You'll want to know how much of the firm's work on your case will actually be done by the attorney.
Learn what our reader survey reveals about your chances of winning a medical malpractice case.