Legal Question in Medical Malpractice in California

Malpractice lawsuit process

We recently talked with a lawyer regarding a potential medical malpractice lawsuit - he is asking that we first spend $3K for initial consultant with a medical expert (of his choice) - if the expert advise is favorable, then he is willing to take the case. However when he does take the case, he says as per CA law, he is only advancing the cost towards other legal expenses - if we win, first the legal expenses are paid (excluding his fees), then he gets a percentage of settlement - balance we get paid (this part more or less sounds right). However, if we loose, legally he says we owe him the legal cost (other then his fee), we have to sign to this fact in the initial agreement - though he does mention verbally that normally this is not collected by the law firm if the judgment is unfavorable. Is this normal?

Also, is the request for us to pay the initial medical expert fee normal too?

Its just that we do not have too much free cash flow - and though both (us and lawyer) believes there is merit in the case, we do not want to get into something that has a potential of making our life worse.

Thanks in advance for your advise.


Asked on 2/22/06, 2:36 am

3 Answers from Attorneys
Terry A. Nelson Nelson & Lawless

Re: Malpractice lawsuit process

You just described a normal fee arrangement. Clients need to understand the real risks, and understand that they bear them. Attorneys are not here to pay costs for clients. Attorneys risk their time, clients risk their money for costs in these cases.

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Answered on 2/23/06, 12:23 pm
Mitchell Roth MW Roth, Professional Law Corporation

Re: Malpractice lawsuit process

A lot of med mal lawyers work that way. In very big cases some firms will advance costs.

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Answered on 2/22/06, 9:50 pm
Robert F. Cohen Law Office of Robert F. Cohen

Re: Malpractice lawsuit process

If you front the money for the pre-litigation analysis, make sure to obtain a copy of the report in case the lawyer gets cold feet for any other reason and you want to go elsewhere.

I trust that the attorney advised you of the limits of $250,000 max for compensation for pain and suffering. Additionally, Business & Professions Code section 6146 limits the attorney's fees to: 1) 40 percent of the first $50,000 recovered; 2) 33-1/3 percent of the next $50,000 recovered; 3) 25 percent of the next $500,000 recovered; and 4) 15 percent of any amount that exceeds $600,000 recovered. It defines "recovered" as the net amount after allowable litigation costs are deducted. Hope this helps your analysis.

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Answered on 2/22/06, 11:57 pm


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