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Is it common to pay an upfront fee to a doctor that a malpractice attorney uses to decide if their is a case or not?

Woodbridge, NJ |

The attorney is telling me they use a doctor to assess a patients situation. To see if their was some form of negligence or not on the operating doctors part. The attorney is also telling me that i have to pay a fee(which i find substantial) to this doctor for him to assess my situation, whether there will be a case or not. Is this common?

Attorney Answers 6

  1. Even where a lawyer takes a case on a contingency basis, the client is required to pay the expert witness fees, win or lose. Medical experts charge hundreds of dollars per hour to evaluate cases. The lawyer doesn't fund that, the client does; although the lawyer may advance fees to the expert, the client has an obligation to repay the lawyer for those fees.

    You've got to figure, if there's a case, it's YOUR case, not the lawyer's case. The contingency-fee arrangement in the U.S. for cases like this is an exception to the usual ethics rule barring lawyers from taking a financial interest in a client's case.

    Medical malpractice cases can be very time consuming to evaluate. The lawyer may spend days reviewing the medical records and not know until well into that process whether there is actually a viable medical malpractice claim, even if he suspects there may be one. Unless a lawyer is independently wealthy, he's just trying to feed his family and pay his bills by charging a fee to evaluate the case. If a lawyer evaluates several of these a month, he is going to go broke if he doesn't charge for the work. You've got to figure, most advice-seekers don't have viable malpractice claims. The extraordinary advances in medical science have led to a situation where everyone expects a perfect result, and if there is anything other than a perfect result, people think it's the doctor's fault. But that's not the case. Most of the time it's just an unfortunate result. A lawyer may evaluate fifty of these kinds of cases for every case he decides is worth the risk of taking on contingency because there appears actually to have been a breach of the applicable standard of care. So, yes, it's common.

    Not legal advice as I don't practice law in New Jersey. It's just my two cents on the facts you describe in light of general principles of law. If you need legal advice, please consult a lawyer who holds New Jersey licensure. That's not me.

  2. Yes, it is common and you should expect to do that.

    Krekor Law 800-630-8284. Any answers posted on this site should not be construed as creating an attorney client relationship. Portions of this website may constitute and Attorney Advertisment. Before making your choice of attorney, you should give this matter careful thought. The selection of an attorney is an important decision.

  3. Medical malpractice cases are very expensive and time consuming. Also most states require the attorney who files suit must obtain an affidavit from another doctor/expert to state the treating physician breached the standard of care. As such it is not unusual for an attorney to ask you to pay to see a doctor in order for the doctor to assess if there was a breach of care. It also gives you the peace of mind to know another doctor's opinion as well.

  4. Not only is it common, but I would dare say that it's practically required.

    Now I can't and won't speak specifically to the law in NJ (since I'm only admitted in CA), but, generally speaking, before you and your attorney can even address the issue of your damages in a malpractice case, you first must establish that the medical professional(s) acted below the standard of care. That can usually only be established through expert testimony (i.e. another doctor willing to say that the first doctor's care fell below the standard of care). Secondly, that medical expert must also establish that the negligence was the cause of harm. In other words, if your current condition is something that you would have had to deal with anyway, or if the condition is something that you and the doctor could have reasonably expected, the defense will say that the negligence did nothing to make the condition you went in for worse, or at least no worse than what could have been expected as a possible outcome. Thus, without an assessment by a competent medical expert, the attorney may have no legal basis to pursue the claim. (Though I would note that most experienced med mal attorneys can sense where there is an issue, they still need medical confirmation of the alleged malpractice.)

    Disclaimer- The information you obtain at our web-site or through postings on such sites as this is not, nor is it intended to be, legal advice. You should consult an attorney for specific advice regarding your individual situation. Any response given here is not intended to create, nor does it create an ongoing duty to respond to questions. The response does not form an attorney-client relationship, nor is it intended to be relied upon as legal advice. The response given is based upon the limited facts provided by the person asking the question. To the extent additional or different facts exist, the response might possibly change.

  5. Yes. The expert doctors who review these cases do not work for free nor do they work on a contingent basis and they expect to be paid for their time and efforts up front or immediately upon rendering their report or opinion.

    Legal Disclaimer:

    If this information has been helpful, please indicate below.

    Mr. Lundeen is licensed to practice law in Florida and Vermont. The response herein is not legal advice and does not create an attorney/client relationship. The response is in the form of legal education and is intended to provide general information about the matter within the question. Oftentimes the question does not include significant and important facts and timelines that, if known, could significantly change the reply and make it unsuitable. Mr. Lundeen strongly advises the questioner to confer with an attorney in your state in order to ensure proper advice is received.

  6. To file a malpractice suit in NJ, a physician must first sign an affidavit of merit indicating there is a good faith basis to conclude the medical care provided to plaintiff was below accepted standards of care and this contributed to the outcome. That review costs thousands of dollars. It is often possible, however, for an experienced malpractice attorney to review the records and get a feel for what the answer to that question will be. That is how my firm operates. If you can secure the pertinent records, we will review them and advise you whether we think you have a viable malpractice case. If we think your case is financially viable, we may even "front" the costs of the expert review.

    Please feel free to contact me to discuss this further.

    Please note that by attempting to answer your question, I am not acting as your attorney. I will do nothing further to protect or preserve your interests in the absence of any additional discussion with you about this matter. John Ratkowitz, Esq. Starr, Gern, Davison & Rubin, P.C. 105 Eisenhower Parkway Roseland, NJ 07068 Office: (973) 830-8441 Cell: (732) 616-6278 Fax: (973) 226-0031 Skype: john_ratkowitz Web:

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