Medical Malpractice — No Win No Fee

What Constitutes Medical Malpractice?

Direct Answer: Medical malpractice occurs when a healthcare provider deviates from the accepted standard of care, causing patient injury. Most medical malpractice attorneys work on contingency fees of 33⅓%–40%, though many states cap fees. Expert testimony is required in nearly all cases.

To establish a medical malpractice claim, a plaintiff must generally prove four elements: (1) a duty of care existed (a doctor-patient relationship), (2) the healthcare provider breached that duty by deviating from the accepted standard of care, (3) the breach caused the patient's injury (causation), and (4) the patient suffered actual damages as a result.

The "standard of care" is defined as the level and type of care that a reasonably competent healthcare provider, with similar training and in the same medical community, would have provided under the same circumstances. This standard is established through expert testimony.

Common Types of Medical Malpractice

• Surgical errors — wrong-site surgery, retained foreign objects, nerve damage
• Misdiagnosis or delayed diagnosis — failure to diagnose cancer, heart attack, or infection in a timely manner
• Medication errors — wrong drug, wrong dose, dangerous interactions
• Birth injuries — cerebral palsy, Erb's palsy, brachial plexus injuries
• Anaesthesia errors — overdose, failure to monitor, allergic reactions
• Hospital-acquired infections — negligent hygiene or sterilisation practices

Damages Caps by State

Many states impose caps on non-economic damages in medical malpractice cases. These caps limit the amount a plaintiff can recover for pain and suffering, regardless of what a jury awards. Notable examples include:

• California (MICRA) — $350,000 for non-death cases, $500,000 for death cases (increasing annually from 2023)
• Texas — $250,000 per defendant for non-economic damages, $500,000 aggregate for hospitals
• Colorado — historically $300,000 for non-economic damages (adjustable for inflation; recent legislation is phasing in significant increases)
• Florida — caps were struck down as unconstitutional in 2017 (no current cap)

Not all states have caps. States including New York, Pennsylvania, and New Jersey have no caps on non-economic damages in medical malpractice cases.

Contingency Fees in Medical Malpractice

Because medical malpractice cases are expensive to litigate — often requiring multiple expert witnesses, extensive medical record review, and lengthy discovery — attorneys are selective about which cases they accept. However, the contingency fee model remains standard, typically 33⅓% to 40% of the recovery.

Some states regulate contingency fees specifically for medical malpractice. New York's Judiciary Law § 474-a imposes a sliding scale: 30% of the first $250,000, 25% of the next $250,000, 20% of the next $500,000, 15% of the next $250,000, and 10% of amounts over $1,250,000.