We surveyed our readers' experiences with medical malpractice claims to learn about legal fees, odds of success, and more. We've compared their outcomes with similar data from other sources.
If you've been hurt by a careless doctor, nurse, or hospital, chances are you have lots of questions about whether you should file a medical malpractice claim. What are my odds of success? Will a lawyer take my case? How much will a medical malpractice lawyer charge?
To learn more about these and other questions, we surveyed our readers across the United States who've had medical malpractice claims. We've also compared our readers' experiences with data from other studies. Here's what we learned.
How—and How Much—Medical Malpractice Lawyers Charge
Nearly all (92%) of our readers who hired an attorney had what's known as a "contingency fee" arrangement. Their lawyers agreed to represent them in return for a percentage of any out-of-court settlement or verdict they won after a trial. Most of our readers agreed to a 33% contingency fee, meaning they paid their lawyer one-third of any amount they recovered.
This sort of contingency fee is the norm in medical malpractice cases across the country. Most people can't pay a malpractice lawyer by the hour. Contingent fee arrangements are the only way they can afford legal help. Typical fees range from 25% to 40% of amounts recovered, with 33% being the most common. Fees toward the higher end of the range are more likely in malpractice cases because of the risks and difficulties they involve.
The Odds of Winning a Medical Malpractice Payout
Our survey confirmed what most lawyers in this field will tell you: It's very difficult to win a medical malpractice case. Overall, just 12% of our readers were able to get a "payout," meaning a settlement or a verdict for money damages.
Other Data Show Better—But Still Low—Odds
Other data report slightly better odds, but the chances of a payout remain low. For example, a review of malpractice claims from 2015 by the Medical Professional Liability Association (formerly Physician Insurers Association of America) showed that only 25% of claims resulted in a payment.
In a study of 6,779 malpractice claims brought by adult patients between 2001 and 2015 against emergency department and urgent care providers, 22.8% were settled with a payment. Just 38 cases (0.6%) ended in a verdict for the injured claimant, bringing total payouts to 23.4% of all claims. More than three out of four claims ended with no payment. Two-thirds of the 6,779 total claims were dismissed without a settlement or a trial.
Perhaps unsurprisingly, claims brought on behalf of children might yield more frequent payouts. A study of 728 claims involving pediatric emergencies over a 15 year period (2001-2015) showed payouts in 220 cases, or 30% of the total. Fifty-seven of these claims went to trial, resulting in 10 verdicts (18%) for the injured child patient.
Improving Your Chances of Success
When we look more closely at the survey results, it becomes clear that some people were able to improve their chances of success. Nearly two in ten (17%) of readers who hired a lawyer received a settlement or a winning verdict. Three in ten (30%) got a payout after they sent a "demand letter" to the insurance company, filed a lawsuit, or did both.
Compared to readers who didn't take these steps, the results are even more striking. Only 10% of those without a lawyer received a payout, so hiring an attorney almost doubled the chances of getting a verdict or settlement. Sending a demand letter, filing a lawsuit, or doing both more than tripled the odds of success.
All of this makes sense. Medical malpractice claims are very complicated and difficult to prove. For starters, you have to meet particularly strict requirements showing that you were harmed because your health care provider didn't meet the appropriate standard of medical care. Many states impose tight time limits on malpractice lawsuits, and force you to jump through other procedural hoops.
It can be especially hard to overcome all of those hurdles without the help of an experienced medical malpractice attorney. Also, readers who pursued their claims without an attorney's help may not have known to send a demand letter and may not have understood all their state's requirements for filing a medical malpractice lawsuit.
Types of Medical Malpractice Claims With Better Success
Our survey also showed a big difference in outcomes of medical malpractice claims depending on the type of medical error that readers experienced. Of the most common medical mistakes that readers reported, the odds of receiving a payout were highest (27%) for those who experienced bad reactions or other problems related to medication.
Those who said they were harmed because of misdiagnosis or delayed diagnosis and treatment got a payout just 5% of the time. Readers who reported mistakes during medical procedures received payouts in 13% of cases.
Some Medical Specialties Are Riskier Than Others
When it comes to the chances of being sued for medical malpractice, all medical specialties aren't created equal. Data collected by the American Medical Association between 2016 and 2022 show that doctors in some medical specialties face significantly higher odds of being sued for malpractice. Here are some with the lowest chances of being sued:
|
Medical Specialty |
Odds of Being Sued |
|
Allergy and immunology |
7.1% |
|
Hematology and oncology |
8.0% |
|
Endocrinology |
8.6% |
By contrast, here are the specialists with the greatest likelihood of facing at least one malpractice claim:
|
Medical Specialty |
Odds of Being Sued |
|
Obstetrics and gynecology |
62.4% |
|
General surgeons |
59.3% |
|
Other surgeons |
55.5% |
|
Orthopedic surgeons |
47.2% |
In addition to greater odds of facing a claim, practitioners who work in high-risk fields often face the highest payouts. Here's a good example. The Family Medicine Department at the University of Michigan Health System studied 55 malpractice claims brought between 2000 and 2020. Of these 55 claims, 24 settled with a payout. The total payouts for all 24 claims came to $17,810,652. Just nine of the claims involved obstetric care, but those nine payouts totaled $14,593,880—82% of the total. The average obstetric claim payout was $742,111, while the average for all other payouts was $160,839.
How Hard Is It to Find a Medical Malpractice Lawyer?
First, the good news. As mentioned above, medical malpractice lawyers often accept cases on a contingent fee basis. Many of these lawyers also will advance the expenses of pursuing a claim, including big ticket items like expert medical witnesses. It's not unusual for case expenses alone to total in the tens of thousands of dollars for a moderately complicated case.
Now for the bad news. These arrangements—along with the general difficulties in proving medical malpractice claims and state laws that limit medical malpractice payouts—can also make it hard to find a lawyer who's willing to take your case. Attorneys will only accept cases when they believe they can win a settlement or verdict that's high enough to be worth the risks and expenses. Lots of potential malpractice cases simply don't make the cut.
Given all of that, it's not terribly surprising that only 11% of our readers were able to hire an attorney to handle their claims. While that's discouraging, one other survey result may offer a glimmer of hope. Nearly two-thirds (63%) of our readers with lawyers said they talked to at least two attorneys before hiring one, and nearly half (45%) tried three or more lawyers. Persistence does seem to pay off—or at least help.
For more details on our survey results, see this page on compensation and duration in medical malpractice cases.
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