From time to time, our potential and existing clients ask some excellent questions about attorney’s fees and how they work in Texas medical malpractice cases. Here are some of the Q&A.
Are attorney’s fees hourly or contingency based?
Because of the complexity and cost of medical malpractice cases, almost all of them are handled on a contingency basis. This means that the plaintiffs’ attorney fronts all case expenses, including costly expert witness fees, which are reimbursed only in the event of a recovery. The same is true for attorney’s fees—if there is no recovery, the attorney doesn’t get paid.
The beauty of contingency fee arrangements is that they allow plaintiffs to pursue meritorious cases that they could not otherwise afford. Plus, the client and attorney have a clearly aligned financial interest.
Who pays the attorney’s fees?
In some types of cases, the prevailing party (winner at trial) is able to collect attorney’s fees from the non-prevailing party (loser trial). Under Texas law, this is generally limited to breach of contract claims. This means that in negligence cause of action, including medical malpractice, each side is responsible for paying its own attorney’s fees.
This question sometimes comes up at mediation or during settlement negotiations. When a defendant makes an offer to settle a claim, that’s an all-inclusive number. In other words, the plaintiff will receive the net proceeds of a settlement after attorney’s fees, case expenses, and any amounts necessary to satisfy liens or subrogations are deducted.
Why are the attorney’s fees higher than personal injury cases?
Based on my observation, experienced Texas plaintiffs’ medical malpractice attorneys typically charge a 40% contingency fee. This is a higher than the one-third attorney’s fees that are typical for run-of-the-mill car wreck, slip and fall, and other personal injury cases. (I'll go so far as to say if you contact a Texas attorney about a medical malpractice who promises a one-third fee, it should raise a red flag and you should do considerable research about that person's experience and expertise before making a hiring decision).
The reason for the higher fee is two-fold.
First, medical malpractice cases are complex, hard fought, and time consuming. There are tort reform requirements to meet. Cases frequently require multiple medical and nursing experts. The subject matter is complex. Contrast that with cookie-cutter personal injury cases that are often largely handled by paralegals. This comment is by no means meant to diminish the importance of these cases to people injured by this type of negligence.
Second, medical malpractice cases are expensive both in terms of time and dollar commitments. The cases require considerable careful attention and study by attorneys, nurse legal consultants, and other staff. Plus, the medical and other health care experts that are required to prove a case require an investment of tens of thousands of dollars or more, depending on the complexity of the particular case.
I’ve seen countless situations where clients were penny smart and pound foolish in hiring a personal injury attorney who’s unfamiliar with medical malpractice claims. By focusing on trying to get a reduced fee, they ended up stuck with an inexperienced lawyer who ruins their case. At Painter Law Firm, we’re sometimes able to rescue clients who’ve been dropped by a novice attorney, but most situations it’s too late for us to help.
If you’ve been seriously injured by a Texas physician, hospital or healthcare provider, then look for a lawyer with significant experience and a proven track record in handling medical malpractice cases. And expect a fee that’s commensurate with the complexity and investment of time and resources necessary to win.
