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Do I need a medical malpractice lawyer?

Whether you should hire a medical malpractice lawyer is a key first question if you think you have a claim.

evident Editorial Team
November 28, 2023
Doctor fitting patient's arm for a brace

You do not technically need to hire a medical malpractice attorney to pursue a claim, but you probably do need one if you want to win your case. 

As we’ll cover below, medical malpractice claims are complicated and can be tough to win. An experienced med mal attorney can provide crucial support to help you navigate the complexities of these cases and give you the best possible chance of success. 

This article will cover what medical malpractice is, how a medical malpractice attorney can help, and how they are likely to charge you for their services.

Key Takeaways

What is medical malpractice?

Medical malpractice happens when a healthcare practitioner’s negligent or reckless conduct causes you harm.

Keep in mind that you don’t necessarily have a medical malpractice claim just because something went wrong or just because your condition did not improve. Some conditions and diseases are untreatable. And even when a condition is treatable, people don’t always respond to treatments as expected. 

The critical element in a medical malpractice case is that the medical practitioner’s conduct did not meet the applicable standard of care. This means the physician must have acted negligently or recklessly. Reckless behavior is less common, but would also make for an easier claim. (For example, consider a doctor performing surgery while intoxicated).  

Here are a few ways that a medical practitioner’s negligent (or reckless) conduct could occur:

  • Making mistakes during a surgery or other procedure
  • Failing to diagnose a harmful condition
  • Failing to properly advise a patient about significant risks associated with a treatment

But, again, it is not medical malpractice just because your condition worsened or did not improve. There must have been a departure from the applicable standard of care which gives rise to medical malpractice liability.

What it takes to win a medical malpractice case

You first have to establish what the applicable standard of care is. Then you have to prove that your healthcare provider did not meet that standard. 

Thus, medical cases can be quite complicated and often require expert medical testimony. 

Unfortunately, this also means they can be tough to win. 

Studies have found that physicians win approximately 70% of medical malpractice cases involving “borderline” evidence of medical negligence and even 50% of cases involving strong evidence of medical negligence. Meanwhile, those studies have also found that physicians win 80% - 90% of med mal cases with weak evidence of medical negligence.

Whether to hire a medical malpractice lawyer

So, medical malpractice cases can be complicated and hard to win. What does this mean in terms of hiring a medical malpractice lawyer?

An experienced medical malpractice attorney can be a crucial resource to help you navigate the legal system and put forth the strongest possible case. They can assist with everything from navigating the court system to negotiating settlements and coordinating expert testimony. 

Additionally, sometimes speaking with a medical malpractice lawyer can be a good way to figure out whether your circumstances give rise to a viable claim.

Medical malpractice contingency fees

Medical malpractice lawyers frequently represent clients on a contingency basis, which means they do not get paid unless you win your case. For more detailed information, check out our article on how much a medical malpractice lawyer costs

But a quick word here on what a medical malpractice award might look like, as well as the pros and cons of contingency fees in med mal cases. 

How a contingency fee works for med mal cases

First, here’s an example of how contingency fees might work in a med mal case:

  • You hire a medical malpractice lawyer on a contingency fee arrangement where the lawyer’s fee is 30% after deducting costs
  • Your claim is successful and you win an award of $100,000 with litigation costs of $10,000
  • The medical malpractice lawyer, having covered the costs upfront, would be reimbursed from the award leaving $90,000
  • Your take-home portion would be $63,000 after deducting the lawyer’s fee of $27,000 (30% of the $90,000 net award)
Pie chart example of a medical malpractice lawyer fee

Pros and cons of contingency fees in med mal cases

On the plus side, contingency fee arrangements allow many people to pursue medical malpractice claims and get the compensation they deserve that would not otherwise have been able to due to financial constraints. 

But, more so than in some other areas of law, the combination of contingency fees and just how complicated medical malpractice cases can make it more difficult to find a lawyer. Due to the lower chances of success, it may be more difficult to get a lawyer to take your case.

The final word on whether to hire a medical malpractice lawyer

Ultimately, while hiring an attorney to pursue a medical malpractice claim is not strictly necessary, having an experienced attorney on your side can be particularly important for med mal cases. 

At the outset, a medical malpractice lawyer can help you evaluate whether you have a viable claim. And if you do have a claim, they can be an essential resource and put you in the best position possible to win your case.

In terms of costs, most medical malpractice lawyers work on a contingency basis which can ease the financial burden on you to pursue your claim. But remember, these factors may make it more challenging to find a lawyer for your case, which is why it’s particularly important to reach out to more than one medical malpractice lawyer.