Most malpractice cases are handled on a contingency fee basis, which means that you only have to pay the attorney a fee for his services if he obtains a recovery for you, either by settlement or trial. If he does not obtain a recovery, you owe him nothing for his services. Under almost all circumstances you will have a written contract with your lawyer that spells out the details of the attorneys’ fee agreement. The exact percentage charged will vary from state to state and region to region because of differences in state laws, bar regulations, and custom. Probably the average fee is between thirty percent (30%) and forty percent (45%) of the recovery. Keep in mind that there may be restrictions on the maximum a lawyer may charge, but there is no minimum required fee. If your case is good enough and the damages are big enough you may be able to negotiate for a lower fee than normally charged. Beware though, there are considerable differences between the skills and experiences of lawyers. Ask yourself, “if I needed brain surgery would I want the guy giving discounts on brain surgery this week because he doesn’t have enough work, or would I want the best?” Remember, a contingency fee lawyer is completely free to you until there is a recovery and a top notch lawyer has a better chance of getting a top dollar recovery for your injury. If you lose the case it makes no difference if the fee was going to be forty (40%) or going to be ten percent (10%). You will still recover nothing.
In November 2004, the doctors in Florida paid millions of dollars to collect signatures and place on the state election ballot a proposal to amend the state constitution to limit attorneys fees in medical malpractice cases to 30% of the first $250,000 of a recovery, and 10% of all amounts recovered over that. This proposed amendment was called “Amendment 3.” Virtually every major newspaper editorial board in Florida recommended that voters reject Amendment 3, because it was a trick. These doctors were not interested in helping patients make more money when they sued them. Doctors after all want to eliminate malpractice suits not encourage them. What they were really after was to make it nearly impossible for patients to find good lawyers who could afford to take on their case at such reduced attorneys fees. Click here to read what the editorial boards were saying. In spite of what the newspapers warned, the voters approved amendment 3.
We do not know any malpractice lawyers who feel they can handle medical malpractice cases for that 10% contingency fee. Because people could not find lawyers to represent them, the Florida Bar and Florida Supreme Court have approved a written waiver of that limited attorney fee provision. Our firm will still take cases, but normally only if the client will sign the Florida Bar approved waiver of the 10% limitation and agree to a higher contingency fee.