There are two categories of charges when a client hires an attorney to pursue a medical malpractice case: (a) an attorney’s fees and (b) costs.
An attorney’s fee in a malpractice case is almost always a contingent fee, which means that they are only payable if a patient/plaintiff recovers. The contingent fee a lawyer is permitted to charge is usually regulated by the state. In New Jersey, after subtracting any unpaid costs, lawyers in medical malpractice cases charge a client approximately 33 ⅓ of the remaining amount recovered. The amount is decreased incrementally for each $750,000 recovered. Additionally, if a client is mentally incapacitated or a child, attorneys may only charge a contingent fee of 25% if the case is resolved without a trial.
Costs in a medical malpractice litigation can be substantial. The biggest cost associated with these files are fees charged by expert witnesses. Additional costs include (but are not limited to) filing fees, court reporting fees, mail and courier charges and costs associated securing medical records. Even simple malpractice cases can involve costs in the neighborhood of $30,000 if a case is litigated through trial. A complex malpractice case involving multiple defendants in different medical specialties can easily exceed $100,000 in costs.
Malpractice lawyers deal with litigation costs in different ways. Some lawyers require an initial retainer fee and then ask clients to forward additional money as costs are paid to keep the account current. Other lawyers require only a single retainer fee at the outset of a case with the understanding that the firm will advance additional costs, to be paid by the client at the end of the litigation out of the proceeds of the lawsuit.
At my firm, we do not require an initial retainer from clients at the outset of a case. Rather, we typically ask clients to cover the costs related to securing the pertinent medical records for our initial review. The cost related to medical records is usually a few hundred dollars. After we review the pertinent records, if we determine a case should be submitted to an expert so that it can go into litigation, we advance all remaining costs, with the understanding that clients will reimburse us for the expenses related to the litigation out of the money we recover in the lawsuit.
We carbon copy our clients on all correspondence, so clients are contemporaneously aware when we are paying costs related to their litigation. Furthermore, at the end of each case we provide clients with a Closing Statement which details attorney’s fees and all costs incurred during the litigation. Finally, all of this is incorporated into our retainer agreement, which we discuss and explain during our initial meeting with our clients.