Tips on hiring a Medical Malpractice lawyer:



How you pick your Medical Malpractice attorney can make a big difference in the results you get from your lawsuit.   Since the fee arraingments are very similiar from attorney to attorney, why not take the time to make sure you have a lawyer who you can work with and who has experience settling and trying cases such as yours.

The most common, and usually the best way to find your attorney is through recommendations of people you trust.   You are likely to receive a lot of recommendations, especially if the results of the malpractice are severe or if the malpractice was in the news.   The key is to make sure you trust the person giving you the recommendation.

Things to avoid

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Things to look for

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Questions to ask

Most people don't hire lawyers very often and can feel intimidated in speaking with a lawyer.  You are likely to live with this lawyer for a while and it is very important that you feel comfortable speaking with him/her.  Medical Malpractice lawyers never mind being "interviewed" by potential clients.  They know how important it is that you and your lawyer are a good match.  If the lawyer is not willing to answer questions or to give you enough time to ask questions, you might want to consider speaking with another lawyer.  The following are some helpful questions to ask when interviewing your lawyer:

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Contingency fees:

Medical Malpractice cases are one of the few areas in which an attorney and client are allowed to agree to a "contingency fee."   Without contingency fees, most people who are victimized by medical malpractice could not afford to hire an attorney and pay the expenses of their case.

A contingency fee means that you only pay a lawyer's fee out of any recovery from your lawsuit.   If there is no recovery, there is no fee.   If there is a recovery, the attorney is entitled to a percentage of the recovery.   In New York, the courts regulate the amounts of these percentages.   In normal accident cases the typical percentage is one third of the net recovery.   Currently, in Medical Malpractice cases, the contingency percentages are as follows: Your attorney can ask the Court to set higher amounts at the end of the case and many lawyers will include language to that effect in their Retainer Agreement.   The higher fee can not be charged unless a court has approved it.   Courts will usually only approve the higher fee if the the lawyer spent much more time than usual for a medical malpractice case. Net recovery means the total amount recovered minus the expenses.

The way this works is that the attorney puts out the expenses of your lawsuit out of his/her pocket upfront.   Those expenses are first deducted from the total recovery and returned to the attorney.   The fee percentages are calculated from the amount left after the expenses.   Below is a simple example of how the recovery works:

Total settlement or judgment $1,500,000.00
Total expenses $-50,000.00
Net Recovery $1,450,000.00
30% of 1st $250,000.00 $75,000.00
25% of next $250,000.00 $62,500.00
20% of next $500,000.00 $125,000.00
15% of next $250,000.00 $37,500.00
10% of everything over ($200,000.00) $20,000.00
Attorneys fee: $-320,000.00
Net recovery to you* $1,130,000.00
*liens may be deducted from the net recovery to you.

The earlier on your case settles, the smaller the expenses will be.   Trial expenses, including expert witness fees such as treating and expert doctors, neuropsychologists, life care planners, economists, etc., can increase your expenses tremendously.

All liens, if any, are deducted from your net recovery.   This includes liens for workers compensation payments and appropriate medical liens, Medicaid and Medicare liens.   Most liens will be reduced by the same percentage as your attorney fees to cover your attorney fees on that portion on the amount of of the lien as well as a share of the expenses.   In addition your lawyer may be able to negotiate a further reduction of liens or dispute certain claimed liens such as by doctors or your healthcare insurance.

There are several instances where a court must approve any settlement or distribution of funds, including your attorneys' fees and expenses.   These are where the client is an infant, is incompetent or where the case involves a death.   In those cases the attorney must file for a Compromise Order.   The compromise order will spell out exactly how the settlement proceeds are to be paid, including the attorneys fees and expenses.   Depending on where the compromise order is sought (supreme court, surrogate court or federal court), it can take from 2 months to as much as a year to get the court's approval.

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Retainer Agreement

When you hire an attorney for an medical malpractice case you will be asked to sign a "Retainer."   This is a written contract between you and the attorney regarding the expenses and fees in your case.   The retainer agreement is usually a fairly standard form, but you should take the time to go through the form for things that may not be typical.   Such as: If there is anything that you do not understand in the retainer agreement, make the lawyer explain it to you until you do understand.   If you're still unsure, ask the lawyer to put the explanation in writing so that you can review it with family members or friends who's judgment you trust.

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