Contingency Fees in Medical Malpractice

Medical malpractice is the third most common cause of death in the United States and results in more than 251,000 people deaths each year. However, unfortunately, only 2% of those medical malpractice victims file a compensation claim. The major challenge for most people is excessively high lawyer fees without a guarantee of winning the case.

But what if you could get a lawyer to help you with your medical malpractice case without having to pay anything? This is where Juspoint and our contingency plan come into the picture. A contingency fee agreement is a much friendlier and pragmatic option whereby the attorney only gets paid for their services if they win the case.

Medical malpractice cases include:

  • Substandard healthcare services
  • Wrongful diagnosis of a disease
  • Wrongful surgery on the wrong organs/parts of the body
  • Medication error
  • Incorrect surgery
  • Early discharge from the hospital and more!

For a lawsuit to count as a medical malpractice case, the plaintiff must provide proof of negligence and demonstrate beyond reasonable doubt that the practitioner’s negligence caused harm.

What is a Contingency Fee Agreement?

As highlighted earlier, a contingency fee agreement refers to an agreement signed between the lawyer and medical malpractice victim, whereby the lawyer agrees to only being paid for their services if they successfully win the settlement in a court of law. The contingency fee is paid out in a percentage of the total settlement, typically 33% (or more depending on the attorney).

If the attorney fails to win a financial award, they are not entitled to any fees whatsoever. 

How do contingency fee agreements work?

We’ve all seen many lawyers spend a lot on ads, telling victims of medical malpractice to bring forth their stories and get fair representation without payment until they win a settlement or an award through trial. What they don’t tell you is that these services are not actually “free.” At some point, you might have to pay for the legal fees, copying costs, expert witness, and court filing fees, although this isn’t always guaranteed by the lawyer.

A contingency fee agreement allows victims of medical malpractice to pursue justice without paying the attorney’s fees upfront. The lawyer takes on your case without an upfront payment, which is good for both sides. The lawyer may decide to cover the overhead fees in the first stages to pursue your financial recovery.

Let’s say that you were a patient in need of emergency surgery, and for some reason, the medical practitioner forgot a lump of cotton wool in some part of your body. Now you’re suffering from the presence of a foreign object in your body.

In this case, reach out to a personal injury attorney well-versed in medical malpractice cases. Whether you have enough money or not, many attorneys will take up such cases on a contingent basis. A contingency fee arrangement will work for personal injury cases but not all cases. Here are some cases where it won’t work depending on state laws:

  • Debt collection cases
  • Divorce cases
  • Criminal cases
  • Drafting wills and contracts

How is the contingency fee calculated?

As mentioned earlier, a contingency fee is based on a percentage of the total financial recovery. The total percentage can vary anywhere from 5% to 50%, depending on the complexity of the case, the attorney, and the state you’re in.

There is no clear formula for how the contingency fee is calculated. Victims usually talk the terms with the legal professional before taking up any agreements.  On average, the fee constitutes about 33% of the total settlement subject to the following factors:


  • The magnitude of the malpractice
  • All the estimated costs
  • The example provided of how the fee will be calculated
  • An indication on the party supposed to pay for other expenses
  • The lawyer’s preferred method of financial recovery
  • Other provisions should the case succeed or fail

Why contingent fees?

There are many law firms spread out across the country. Most, if not all, are adopting contingent agreements for personal injury. But how worthy is it, and is it actually better than the hourly rate?

Contingency fees advantages

Contingency fees tag along with a wide variety of advantages. For instance, the agreement shields the victim from the repercussions of losing the case. Other benefits include:

  • No upfront fees are required.
  • Quality legal representation from top experts who would otherwise be unaffordable.
  • The attorney works hard to stand better chances of success.
  • Cheaper, more flexible rates compared to the fixed hourly attorney rate.

When would a lawyer take a case on contingency?

Lawyers won’t simply take on all medical malpractice lawsuits as they come. Instead, savvy attorneys will calculate the chances of winning and losing and take up the case if they’re convinced that it will have a substantial award. 

It’s nothing personal, but they, too, are in business. They need strong cases that they can win in order to cover the office costs, and of course, get enough payment. Ask how much the lawyer expects to earn from the agreement and how likely you are to win. This should give you a rough guess on whether a lawyer is likely to take up your case or not. 


Question: Can you negotiate a contingency fee?

Answer: Contingency fees are negotiable. Make your move early and inquire if the lawyer can take a lower rate. Who knows? Maybe they will.

Question: Do contingency lawyers always win?

Answer: Contingency lawyers don’t always win. That’s why they are paid on a contingent basis, meaning on the circumstance if they win. A lot of variables are involved at the court, and it is difficult to predict a win or a loss.

Question: Can you fire your attorney under a contingency fee agreement?

Answer: You reserve the right to fire your attorney at any time, including under a contingency agreement. The terms of service will most likely be engraved in the contract, so take some time and read through it to avoid incurring unnecessary fees before the case is over.


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