How Much Does a Medical Malpractice Lawyer Cost in New York?

The Contingency Fee Model

A contingency fee is a fee arrangement in which the lawyer fee is contingent (dependent) on the successful outcome of the case. If the lawyer recovers compensation for you -- through settlement or verdict -- the lawyer receives a percentage of the recovery. If the lawyer does not recover anything, you owe no attorney fee.

The contingency fee model is the standard in medical malpractice cases in New York (and most personal injury cases). It has several key advantages:

- No upfront cost: You do not need to pay any money upfront to hire the lawyer. - No hourly billing: You are not billed by the hour -- the fee is a percentage of the recovery. - Aligned incentives: The lawyer incentive is aligned with yours -- the more the lawyer recovers for you, the more the lawyer earns. - Access to justice: The contingency fee model allows people who cannot afford hourly legal fees to pursue legitimate malpractice claims.

In New York, contingency fees for medical malpractice cases are regulated by 22 NYCRR 202.15 (the Appellate Division contingency fee schedule for medical malpractice cases).

Typical Contingency Fee Percentages in New York

In New York, the Appellate Division has established a sliding scale for contingency fees in medical malpractice cases (22 NYCRR 202.15). The standard fee schedule is:

• 30% of the first $250,000 recovered
• 25% of the next $250,000 recovered (from $250,001 to $500,000)
• 20% of the next $500,000 recovered (from $500,001 to $1,000,000)
• 10% of any amount recovered above $1,000,000

How the Sliding Scale Works

The sliding scale means that the percentage decreases as the recovery increases. This structure is designed to ensure that the lawyer is fairly compensated for the work, while also ensuring that the client retains the majority of the recovery in high-value cases.

Example: If the recovery is $2,000,000, the fee would be calculated as follows: - 30% of first $250,000 = $75,000 - 25% of next $250,000 = $62,500 - 20% of next $500,000 = $100,000 - 10% of remaining $1,000,000 = $100,000 - Total fee = $337,500 (16.875% of the $2,000,000 recovery)

The client would receive $1,662,500 (before deduction of litigation costs).

This sliding scale applies to medical malpractice cases in New York. Other types of personal injury cases (e.g., motor vehicle accidents, construction accidents) typically use a flat 33.33% (one-third) contingency fee, without the sliding scale.

Litigation Costs: What You May Owe

In addition to the attorney fee, there are litigation costs -- the out-of-pocket expenses incurred in pursuing the case. These costs are separate from the attorney fee and are typically advanced by the lawyer and repaid from the recovery.

Common litigation costs in medical malpractice cases include:

• Expert witness fees: Medical malpractice cases require expert testimony from board-certified physicians, who charge significant fees for their time (often $5,000-$20,000 or more per expert).
• Medical records fees: The cost of obtaining medical records from hospitals and providers (often $0.75-$1.00 per page, plus retrieval fees).
• Court filing fees: The cost of filing the lawsuit (index number fee, RJI fee, motion fees).
• Deposition costs: Court reporter fees, transcript costs, and videographer fees for depositions.
• Exhibit preparation: The cost of preparing medical illustrations, models, and other trial exhibits.
• Travel expenses: If experts or witnesses need to travel for depositions or trial.
• Mediation/arbitration fees: If the case goes to mediation or arbitration.

Who Pays for Experts and Court Fees?

In most medical malpractice cases, the lawyer advances the litigation costs and is repaid from the recovery. This means that you do not need to pay for experts, court fees, or other costs out of pocket during the case.

However, it is important to understand:

- Costs are repaid from the recovery: The litigation costs are deducted from the client share of the recovery (after the attorney fee is calculated). - Costs can be significant: In complex medical malpractice cases, litigation costs can exceed $50,000-$100,000 or more. - If the case is lost: If the case is lost, the client typically owes nothing for the litigation costs (most retainer agreements provide that the lawyer absorbs the costs if the case is lost). However, you should confirm this in the retainer agreement. - Costs vs. fees: The attorney fee (the percentage) is separate from the litigation costs (the out-of-pocket expenses). Both are deducted from the recovery, but they are calculated separately.

It is important to review the retainer agreement carefully and ask questions about how costs are handled.

What Happens If You Lose?

If the case is lost -- whether at trial or because the case is dismissed -- you typically owe nothing for attorney fees. The contingency fee arrangement means that the lawyer only gets paid if they recover compensation for you.

However, there are some considerations:

- Litigation costs: Most retainer agreements provide that the lawyer absorbs the litigation costs if the case is lost. However, some agreements may require the client to repay costs regardless of the outcome. Read the retainer agreement carefully. - Court costs: If the case is lost at trial, the court may award costs (filing fees, deposition transcript costs, etc.) to the prevailing party. These are typically modest compared to attorney fees and litigation costs. - Appeal: If the case is lost at trial and the lawyer recommends an appeal, the contingency fee arrangement typically continues for the appeal. - Adverse consequences: Losing a malpractice case does not typically have adverse consequences for the plaintiff (beyond not recovering compensation). However, if the case was particularly frivolous, the court may sanction the plaintiff or their attorney.

Retainer Agreements: What to Look For

The retainer agreement is the contract between you and the lawyer. Before signing, make sure you understand:

• The contingency fee percentage: Confirm that it follows the 22 NYCRR 202.15 sliding scale for medical malpractice cases.
• How costs are handled: Does the lawyer advance costs and absorb them if the case is lost? Or are you responsible for costs regardless of outcome?
• What costs are included: The agreement should list the types of costs that will be advanced and repaid from the recovery.
• How the fee is calculated: Is the fee calculated on the gross recovery (before costs) or the net recovery (after costs)? Most agreements calculate the fee on the gross recovery.
• Appeal provisions: Does the fee arrangement continue if the case is appealed?
• Termination provisions: What happens if you want to change lawyers during the case? You may owe the original lawyer for the work performed (quantum meruit).
• Settlement authority: Does the lawyer need your consent to settle? (They should.)
• Lien resolution: Does the agreement address how medical liens (Medicaid, Medicare, health insurance) will be resolved?

Questions to Ask Before Hiring

Before hiring a medical malpractice lawyer, ask:

• What is your contingency fee percentage? (It should follow the 22 NYCRR 202.15 sliding scale for medical malpractice.)
• Do you advance litigation costs? (Most do.)
• Do I owe costs if the case is lost? (You should not.)
• How much experience do you have with medical malpractice cases like mine?
• Who will be working on my case? (The senior attorney, an associate, a paralegal?)
• How will I be kept informed about the progress of my case?
• What is the expected timeline? (Medical malpractice cases can take 2-4 years or more.)
• Will my case go to trial, or will it settle? (Most settle, but the lawyer should be prepared for trial.)
• Do you have medical experts lined up for my type of case?
• Have you handled cases against this hospital/provider before?

Frequently Asked Questions

The value of a medical malpractice case in New York depends on several factors, including the severity of the injury, the strength of liability evidence, and the economic and non-economic damages involved. New York is one of the few states with no caps on medical malpractice damages, meaning there is no artificial limit on what you can recover. Below are typical settlement ranges based on injury severity.