In New York, attorney’s fees in medical malpractice cases may be calculated in one of two different ways:

• A “sliding scale” percentage, or,
• A straight percentage (ie 33%) as agreed by the parties.

THE SLIDING SCALE PERCENTAGE

In New York, by a special law pushed through by the very powerful medical lobbyists that applies only to medical malpractice actions, the attorney’s fee may be less than in a standard “negligence” action. This statute provides protections to Dr’s that are NOT provided to any other profession. This statute imposes a lower attorney’s fee percentage on medical malpractice case than is imposed on any other type of professional malpractice case like legal malpractice or accounting malpractice.

In other words, if a lawyer, or an accountant, or an architect, or any other professional screws up and causes damage to a person, an attorney representing that person gets paid a higher fee than if a Dr screwed up.

Why is that? Simple. The medical lobby wanted to discourage lawsuits against Dr’s so they pushed through a special law that protects Dr’s by cutting attorneys fees. The thinking was that if attorneys got paid less, many attorneys would stop handling these cases. And it worked. Many attorneys have abandoned this area of practice. Even worse, many times those attorneys who continue to handle these cases have to decline cases where there is clear negligence but the recovery will just not be sufficient to justify all of the work involved and the very high costs of pursuing the case.

So what are the fees under the “sliding scale”? In a standard negligence action, the attorney’s fee is 1/3 (33%) of the remaining amount after expenses (called “disbursements”) are deducted off the top. However, in a medical malpractice matter, the lawyer’s fee is generally set by law in the form of a sliding scale. It starts out at 30% on the first $250,000, then 25% on the next $250,000, then 20%, and it keeps going down until it is only 10% on any recovery over $1,250,000.

While this “sliding scale” sounds good because it means that the attorney’s fee is less than the attorney fee that would be paid under the straight one-third contingency fee, it is NOT good for the client when it means that an attorney decides that it is not economically feasible for them to handle the case and they end up rejecting the client’s case.
Unfortunately, like any other business, lawyers must make a decision about whether it makes good business sense to take a case or not. A lawyer simply cannot take those cases where the degree of difficulty and the costs are so high unless the compensation is sufficient to compensate the lawyer for the time and risk he is taking. Accordingly, in some circumstances, your lawyer can discuss with you the possibility of your voluntarily agreeing to have the attorney’s fees in your case calculated on a straight one-third (33%) contingency fee as is normally charged in any other kind of professional malpractice case.

STRAIGHT ONE THIRD (33%) CONTINGENCY FEE

If you agree, your attorney can handle your medical malpractice case on a straight one-third (33%) contingency fee basis. This means that after the lawsuit expenses are deducted off the top, you receive 2/3rds (66.7%)of the settlement and your attorney receives 1/3^rd (33.3%).