Every attorney wants to handle a good case.

Every lawyer wants a perfect case where there is clear liability, also known as wrongdoing and a very significant injury.

Did you know that some experienced trial lawyers in New York want nothing to do with medical malpractice cases? It's true.

Many attorneys who have been doing medical malpractice cases for years, are getting out of the business. In fact, they are refusing to take on any new medical malpractice matters. Instead, they are sticking to good old-fashioned accident cases and defective product cases and mass tort cases against pharmaceutical companies.

Want to know why?

The reason is important to understand.

When an attorney represents an injured victim in New York, whether it is for a medical malpractice case or a wrongful death case or even an accident case, if they are successful, they will receive a percentage of whatever they can recover as compensation for you. That's known as a contingency fee.

This way, the injured victim does not have to pay any money out of their own pocket initially in order to hire the best attorney they can find.

A lawyer who takes on a case like this pays all the litigation expenses, known as disbursements, with the expectation and hope that they will be successful in recovering compensation for the injured victim.

If the attorney is successful in obtaining compensation then all the money that he has paid out of his own pocket as litigation expenses then get reimbursed to him. Out of the remaining money, the attorney's fee is then calculated. If there are any medical liens that must be repaid to government agencies such as Medicare or Medicaid, then those must be negotiated and paid.

The injured victim is left with the remaining amount of money.

Let's get back to the key issue why many attorneys are getting out of the medical malpractice business.

It has to do with how the attorney's fee is calculated in each of these cases.

Let me explain.

In any type of accident or negligence case, the attorney's fee in New York is 1/3. That means that in every type of car accident case or defective product case or accident case that results in death, if he is successful, his expenses will be repaid first, and then he will receive 1/3 of the remaining amount.

However, in a medical malpractice lawsuit in New York where an injured victim claims that a doctor or hospital violated the basic standards of medical care, the attorney's fee is significantly less.

The lawyer's fee on medical malpractice cases was changed in 1985 in response to vigorous lobbying on behalf of doctors and hospitals in New York. It used to be the same 1/3 as in accident cases.

However, the NYS legislature determined, after intense lobbying by physicians and hospitals, that the attorneys fee was too much and that an injured victim was getting less than they should. Accordingly, they created something known as a sliding scale.

That means that a trial attorney who handles medical negligence cases still must pay out of his own pocket all the litigation expenses. If he is successful in obtaining compensation for an injured victim harmed as a result of the doctor's carelessness or a hospital's carelessness, those litigation expenses will be repaid to his law firm.

Out of the remaining amount of money the attorney's fee is then calculated.

However, this calculation is heavily skewed in favor of the injured victim. That means that instead of getting a straight 1/3 attorney's fee, the lawyer can only receive 30% of the first $250,000 obtained. He will then only be able to obtain 25% of the next $250,000.

The attorney's fee continues to drop by 5% as the amount recovered increases. Once we reach a ceiling of $1.25 million, than anything recovered above that amount, the attorney can only receive 10%.


Let's use as an example a lawsuit involving an injured victim in a car accident.

Let's assume that an attorney is able to successfully settle the case for $1 million. For this simplistic example, let's assume that there are no lawsuit expenses. In this instance, the attorney's fee would be one third of the $1 million which is $333,333.33. The injured victim would walk away with $666,663.67.

To contrast that, let's assume the same set of facts.

Except this time it involves a $1 million settlement for an injured victim who was injured by a doctor or a hospital here in New York. In that case, the sliding scale only permits an attorney to obtain a total of 23%, meaning that the attorney will only receive $233,333.33. The injured victim would then obtain  $766,666.66. A significant difference for both attorney and client.


Let me ask you this question: assuming that the injuries for both injured victims are the same, their ages are the same and everything else is the same, is it fair that an injured victim should obtain a different amount of money if they were injured in an accident case compared to a medical malpractice case? That question is of course rhetorical. Whether it is fair or isn't, it's a fact that injured victims and the attorneys who represent them must live with.

This past week I attended an American Association of Justice conference held in Baltimore Maryland. While there, I ran into a well-known and famous trial attorney who was a former president of the New York State trial lawyers association. We happened to work for the same law firm many years ago where we both started our legal careers and he mentioned to me that many attorneys who used to handle medical malpractice cases have gotten out of that business.

There are still great attorneys who handle these cases...

There are still excellent trial lawyers here in NY who handle medical malpractice cases. They still fight for the underdog. Yet medical malpractice lawsuits are extremely costly and those that do go to trial often will be won by the doctors and hospitals.

One of the key reasons is that every medical malpractice case must be supported by a medical expert who confirms that not only was there wrongdoing, but that the wrongdoing caused injury and that the injury is significant and/or permanent.

In addition, many medical malpractice cases require multiple medical experts which dramatically increase the cost and investment associated with bringing a valid case.

But why?

Getting back to the reasoning why many attorneys are no longer handle medical malpractice cases is that there is a clear rationale that can be made for attorneys only taking on personal injury and accident cases. That rationale comes down to the amount of money, time and effort expended to prosecute a valid case compared to what type of return on investment they can expect to see.

The common thinking is that it is much more difficult, expensive and time-consuming to bring a medical malpractice case to a successful conclusion and the fees are significantly less compared to a similar accident case where the attorney does not have to invest as many resources, time and effort.

Which attorney is right for you?

That is why when deciding which attorney is right for you, you need to be able to ask why they are willing to continue handling medical malpractice cases knowing at the outset that the attorney's fee, if successful, is significantly less that if they handled an accident case for the same timeframe.

Choosing the right attorney for you often comes down to how the attorney and the law firm makes you feel. The reality is that no attorney can ever guarantee you a particular result. So you might be asking yourself, if no attorney can ever guarantee a result, how can you choose which lawyer is right for you?

It all comes down to how they educate you, communicate with you, express confidence in you and your case and importantly how they make you feel. That will make all the difference in the world.

Gerry Oginski
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NY Medical Malpractice & Personal Injury Trial Lawyer