How Medical Malpractice Fees Actually Work

If you have driven past a billboard in Atlanta or watched local TV for ten minutes, you have heard it: “No fee unless we win.” It is presented like a rare deal, something one particular firm is generously offering you. It is not. Nearly every medical malpractice and personal injury firm in Georgia works this way, and Georgia’s professional conduct rules require the arrangement to be spelled out in a written agreement with a specific “no recovery, no fee” disclaimer. That language exists for a reason.

So the arrangement is not the interesting question. The interesting question is the number. In the Atlanta area, medical malpractice contingency fees typically run between 40 and 45 percent of the recovery. Ours is 45 percent.

That is the top of the market, not the middle of it, and I would rather explain it than gloss over it. What follows is how our fee actually works, why it is what it is, and what happens on the day a case ends without a recovery.

Our fee is forty-five percent, and that is the top of the market

Forty-five percent. Not the bottom of the Atlanta range, not the middle. The top. Two things carry that number, and neither of them is complicated.

The first is what this firm does and does not do. Medical malpractice is not one of several practice areas here. It is the only one. We do not take car wrecks; we do not take slip-and-falls at the grocery store; we do not take workers’ compensation claims that happen to walk in the door. Our singular focus is deliberate, and it demands depth in how we build cases, in the expert relationships we have developed since 2007, and in how we prepare for the specific defenses hospitals and their insurers raise. The fee reflects the value of doing exceptional work every day, not average work, occasionally.

The second is what these cases actually take. Most of them do not settle quickly. Most end up in full litigation, with well over a year of discovery before any resolution comes into view. The $10 million infective endocarditis misdiagnosis matter we resolved in Atlanta in 2021 involved years of contested litigation before it resolved favorably for our clients, and it is not an outlier. A fee that reflects the actual scope of that work is part of how we commit to seeing a case through instead of pushing for an early settlement just to close a file. Past results do not guarantee future outcomes, but they tell you what kind of work the fee is paying for.

When shopping on fee makes sense, and when it doesn’t

The honest concession comes first. If you were in a minor car accident with a claim worth a few thousand dollars, shopping for the lowest contingency fee would be entirely rational. The insurance carrier is going to pay roughly what it is going to pay regardless of who represents you, so less to the lawyer means more to you. In that world, five percentage points is a real number and nothing else about the case really moves.

Serious medical malpractice is not that world. What one of these cases is worth at the end depends heavily on the lawyer’s judgment along the way: which experts to hire, which theories to plead, how to plan and take strategic depositions that set the case up for success at trial, and, ultimately, whether to try the case or settle it. Your lawyer’s skill is often the difference between a defense verdict and a recovery.

If you needed highly specialized surgery, you would not go looking for the cheapest bid. You would want the surgeon who does that operation every day and has the results to show for it. The same instinct applies here. The percentage matters. What matters more is whose hands the case is in.

Why we don’t negotiate the fee, and don’t use a sliding scale

The fixed-fee principle

Every client pays 45 percent, on the same terms. No discounts for family, no lower rates for referrals from other lawyers, no case-by-case negotiation for a sympathetic client or a large-value case. That is a deliberate choice, and it comes down to fairness.

If we quietly gave one client a better rate than another, we could not honestly tell every client they are being treated the same way, because they would not be. A single, consistent fee means no client ever has reason to wonder whether someone else got a better deal.

The sliding-scale problem

Some firms use what is called a sliding fee scale, where the percentage is not fixed but rises as the case moves forward: a lower percentage if the case settles before a lawsuit is filed, a higher one after filing, sometimes higher still if the case goes to trial. That structure is not inherently wrong, and plenty of good firms use it. We prefer not to.

Under a sliding scale, the lawyer’s own percentage can change depending on decisions about how the case proceeds. Even when every decision is made for the right reasons, that creates unnecessary doubt. If the lawyer recommends filing a lawsuit rather than continuing settlement discussions, the client should not have to wonder whether the fee increase influenced that recommendation. Lawyers are human. Financial incentives affect judgment subconsciously, even when everyone is trying to make the right call. Removing that variable means the fee is the same whether the case settles before suit, in litigation, or at trial, and the decision about how far to press the case is uncoupled from what the firm earns.

What the fee doesn’t cover: how case expenses actually work

In one case our firm handled, expert fees alone exceeded $430,000 before the matter ever reached trial. That case involved years of litigation and more than 20 expert witnesses, and it is not the norm. Most medical malpractice cases do not cost nearly that much. But the number tells you what serious malpractice work can cost a firm that is committed to seeing a case through.

A case’s real expenses pile up long before any result. There is the retrieval and chronological organization of thousands of pages of medical records. Qualified experts review the file and, when needed, testify. There are court reporters and deposition transcripts, filing fees, and often significant trial-preparation costs. We advance all of it. The client is never billed along the way. If a case involves a surgical error that requires a general surgeon, an anesthesiologist, and a hospitalist to review the record, we retain all three and pay all three, and the client sees none of those invoices.

Two things about the mechanics, said plainly. We do not mark up case expenses. We charge the case what an expert review or a deposition transcript actually costs. And the 45 percent fee is calculated on the recovery, with advanced expenses reimbursed from the client’s portion of the recovery, not deducted before the fee is figured.

How we finance those expenses, and why Georgia’s Supreme Court signed off on it

We finance case expenses by borrowing the money from commercial lenders on the client’s behalf. The lender charges interest on that money. If the case produces a recovery, the borrowed expenses and the interest to finance them are reimbursed from the client’s portion of the recovery.

We do not mark up the interest, and we do not receive any part of it. The firm makes no profit on the financing. This arrangement is expressly permitted under Georgia bar authority approved by the Supreme Court of Georgia, under specified conditions the firm follows.

And to state the loss-side rule so it lands in this section too: if there is no recovery, the client owes nothing. Not the expenses. Not the interest on the financing.

If we recover nothing, you owe nothing

This is worth stating in the plainest way I know how, because it is the question we hear most often. If a case ends without a recovery, whether it is lost at trial, does not survive discovery, or resolves some other way without a settlement or verdict, the client owes the firm nothing. Not the records retrieval. Not the experts. Not the court and deposition costs. Not the interest on the financing. The firm absorbs those amounts as a loss. The only source we are ever repaid from is an actual recovery. If there is not one, there is nothing to pay us back with.

The questions people ask us before signing a fee agreement

What percentage do medical malpractice lawyers charge in Georgia?

Contingency fees for medical malpractice cases in the Atlanta area typically range from 40 to 45 percent of the recovery. Ours is 45 percent, and it is the same for every client, regardless of how the case resolves. Georgia does not cap contingency fee percentages by statute the way several other states do, so the market sets the range.

Do I have to pay anything upfront to hire a medical malpractice lawyer?

No. Like nearly every medical malpractice and personal injury firm in Georgia, we work entirely on contingency. There is no upfront cost, and there is no fee unless we recover. The written fee agreement lays out the specific mechanics, including how advanced expenses work.

What happens to case expenses if I lose my case?

If a case ends without a recovery, for any reason, the client owes us nothing for the expenses or the financing interest we advanced along the way. We absorb those amounts as a loss to the firm. This isn’t universal across every firm, so it is worth reading any firm’s written fee agreement carefully to see exactly how they handle expenses on the loss side.

What is a sliding fee scale, and does your firm use one?

A sliding fee scale is a structure in which the lawyer’s percentage rises as the case progresses: lower before a lawsuit is filed, higher after filing, sometimes higher still if the case goes to trial. We do not use one. Our fee is fixed at 45 percent, no matter when or how a case resolves.

If you’d like us to walk you through the fee agreement before you sign one

If you are trying to make sense of what a contingency fee agreement actually says, what the mechanics of advanced expenses look like in writing, and what the paperwork does on the recovery side and the no-recovery side, we are happy to talk it through with you. That offer holds even if you are already in conversation with another firm and just want a second reading of the contract before you sign. You can reach us here.

About the author

Jesse A. Davis III is an Atlanta medical malpractice attorney and co-founder of Davis Adams. He has practiced medical malpractice exclusively since 2007, representing families across Georgia and beyond whose lives have been fundamentally altered by preventable medical errors. That work has helped his clients recover more than $100 million, including several eight-figure settlements and jury verdicts. Georgia Bar No. 140978.

This article is for general informational purposes only and is not legal advice. Every case depends on its own facts, medical records, and expert review. Reading this page does not create an attorney-client relationship.