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The Right Lawyer for Your Medical Malpractice Claim

The Right Lawyer for Your Medical Malpractice Claim - Finding a qualified lawyer is critical to the success of a medical malpractice case, especially compared with more straightfoward personal injury cases (like those arising from a minor car accident). But medical malpractice is a relatively rare specialty.

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Ask a Lawyer You Trust for a Recommendation

Perhaps the best way to find a good medical malpractice lawyer is to ask a lawyer who you already know and trust to recommend one. Most lawyers have long contacts lists, gleaned from years of litigation and lawyer-to-lawyer networking. If you don't know any lawyers, but have a close friend or relative that has used a lawyer, ask the friend or relative to ask the lawyer for a recommendation. Most lawyers will be happy to help.

Call/Email Your State or Local Bar Association

Almost all state and local bar associations have lawyer referral services that connect prospective clients with qualified lawyers. Most bar associations require lawyers who want to be listed in a specialty such as medical malpractice to demonstrate a specified level of experience in that field. In order to be connected with a lawyer, simply call or email the bar association and ask to be referred to a qualified lawyer. Start by doing an online search for "bar association" in your city or state.

Do Your Own Online Research

Many web sites (including this one) have a method for connecting prospective clients with lawyers by specialty. You can utilize a "chat" feature or submit an email request—along with some general information about your case—to have qualified, local lawyers give you a call.

What to Ask a Lawyer

When you're considering a medical malpractice lawyer, the most important issues are the lawyer's experience in medical malpractice cases and whether you and the lawyer are a good fit for on another.

How Experienced is the Lawyer?

When hiring a medical malpractice lawyer, you want to find a lawyer who has significant experience in medical malpractice. That doesn't mean the lawyer needs to have handled medical malpractice cases exclusively, but a significant percentage of the lawyer's caseload should probably be devoted to medical malpractice.

You certainly want to start off by asking the lawyer about his or her experience in medical malpractice cases. What kinds of medical malpractice cases has the lawyer handled? For how many years has the lawyer been handling these cases? How many have settled? How big have the lawyer's medical malpractice settlements been?

How many medical malpractice trials has the lawyer had? How many medical malpractice trials has the lawyer won? Remember that medical malpractice cases are difficult to win, and most trials end up with a defense verdict. So you shouldn't expect that the lawyer will have won most of his or her medical malpractice trials.

How Will the Lawyer Find Medical Experts?

Almost every medical malpractice case will require a medical expert witness to prove that the defendant health care provider's action or inaction rose to the level of medical negligence. If you have a medical malpractice case and cannot find a qualified medical expert witness to give an opinion that the defendant was negligent, your case will almost surely be dismissed.

Experienced medical malpractice lawyers know how to find a medical expert in any specialty. Some work with medical expert witness services, and others are so experienced that they literally have the names and phone numbers of numerous doctors in almost every specialty. You want an answer that shows that the lawyer knows what he or she is doing.

Are You and the Lawyer a Good Fit?

This can be almost as important as the lawyer's competency and experience. If you and the lawyer can't seem to get along, that's a red flag.

In order to figure out whether you and a lawyer are going to be a good fit, you need to assess yourself and the lawyer. Are you the type of person who will just turn the case over to the lawyer? Or do you think you'll want to hear from the lawyer frequently with updates and a chance to give your own input? Knowing who you are and what you expect will help you decide what type of lawyer is the best fit for you.

Lawyers come in all types, just as people do. There are curt, brusque lawyers, and there are warm, friendly, touchy-feely lawyers. They might all be equally effective at getting money for their clients, but they all might have totally different kinds of relationships with their clients. It's up to you to figure out what kind of attorney-client relationship you want.

How Much Will a Medical Malpractice Lawyer Cost?

Medical malpractice cases can be very expensive to litigate. Once you've found some candidates, you'll want to discuss the fee arrangement in detail. See the next page to get an understanding of how these contingency fee structures work.

For a patient considering a medical malpractice lawsuit, a big question is, "How much will a lawyer cost me?" The answer might be encouraging for patients who have suffered harm through the provision of sub-standard health care. That's because medical malpractice attorneys often offer free initial consultations during which they discuss the process of bringing a lawsuit, as well as the potential strengths and weaknesses of the patient's case. Then, if the lawyer takes the case, he or she will probably work under a contingency fee agreement, in which payment for the lawyer's services will only come if the case is resolved successfully (through settlement or a jury award).

Let's look closer at common fee arrangements in medical malpractice cases, key considerations for potential clients, and more.

Common Medical Malpractice Fee Arrangements

Most medical malpractice lawyers will represent a client under a contingency fee arrangement, meaning the lawyer's entire fee is paid as a percentage of the award or settlement in the case. So, if the case goes to trial and the patient loses, or if the client receives nothing in the way of settlement, the lawyer is never paid a fee.

The portion of the award that goes to the lawyer can vary, but the most common contingent fee is 33 percent of the award or settlement. Some arrangements might use different numbers for different circumstances. For example, an arrangement might provide for a 33 percent contingency fee if the case settles before trial, and a 40 percent contingency fee if the case goes to trial.

Another issue is who pays the costs of litigation, which can be substantial. These costs include expert medical witness fees, court filing fees, and the cost of obtaining medical records from hospitals. Many lawyers use agreements that provide that the lawyer will pay for costs of litigation, at least initially.

So, as an example, a patient and a lawyer might agree on a 33 percent contingency fee, with the lawyer shouldering the costs of litigation (at least "up front"), but in the event that the litigation is successful, the costs will come out of the award first. Assume the case settles for $100,000, and the costs of the litigation were $10,000. In such a case, the lawyer would be reimbursed for the costs of the litigation out of the settlement money, leaving $90,000. The lawyer would then take the contingency fee of $30,000. The patient would be left with $60,000.

Important Considerations for Clients

One important thing for every potential medical malpractice client to remember is that attorney's fees may be negotiable. Does this mean you should consult five different lawyers and compare prices and qualifications? Probably not, but there is absolutely no reason why potential clients should not shop around for the right medical malpractice lawyer. Remember, initial consultations are generally free.

Not only might the fee percentage be negotiable, other terms might also be up for discussion. For example, a lawyer might propose an agreement that requires a client to pay for litigation costs as they arise. In that situation, the client might ask that the lawyer/firm cover the costs of litigation "up front," with the understanding that those costs would be reimbursed to the lawyer/firm if the plaintiff receives a judgment or settlement award in his or her favor.

Laws Affecting Medical Malpractice Fee Arrangements

Some medical malpractice reform pundits have argued that large contingency fees help drive up the cost of healthcare. As a result, some states have passed laws restricting contingency fees in medical malpractice cases. Some of these states include California, Florida, Connecticut, Tennessee, and Wisconsin. The details of these laws vary. For example, a California law limits attorneys' fees in medical malpractice cases to 40 percent of the first $50,000 recovered, 33 and one-third percent of the next $50,000, 25 percent of the next $500,000, and 15 percent of any amount over $600,000.

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