No Win No Fee

When a preventable birth injury changes your family’s life forever, the thought of pursuing legal action can feel overwhelming. Many families worry about the cost of hiring an attorney, especially when they’re already facing mounting medical bills and an uncertain future.

In New York, most birth injury medical malpractice cases are handled on a contingency fee basis, often called “no win, no fee.” This arrangement means you don’t pay attorney fees unless your case results in a recovery through settlement or trial verdict. New York law goes even further to protect families by requiring a special sliding scale fee structure that ensures the majority of any recovery goes to you and your child, not to your attorney.

What Does No Win No Fee Really Mean?

A contingency fee is a payment arrangement where your attorney’s compensation depends entirely on winning your case. If there is no recovery, your attorney receives no fee for their legal services.

Under New York Judiciary Law § 474-a, a contingent fee is defined as any attorney’s fee in a medical malpractice claim that depends on successfully prosecuting the case or consists of a percentage of the recovery amount.

This arrangement offers important advantages for families facing birth injury cases:

• No upfront costs. You don’t need to pay attorney fees to get started, which removes a significant financial barrier when you’re already dealing with unexpected medical expenses.
• Access to experienced legal representation. Families without substantial financial resources can still pursue complex medical malpractice claims against well-funded hospitals and insurance companies.
• Aligned interests. Your attorney’s financial incentive is directly tied to maximizing your recovery. They succeed only when you succeed.

Birth injury medical malpractice cases often require extensive investigation, multiple expert witnesses, and years of litigation. The costs can easily reach tens of thousands of dollars. A contingency fee arrangement means your attorney assumes this financial risk, not your family.

New York’s Special Fee Protections for Medical Malpractice Cases

Unlike other personal injury cases where attorneys typically charge a flat one-third of the recovery, New York law requires a different approach for medical malpractice cases, including birth injuries. The state mandates a sliding scale that reduces the attorney’s percentage as the recovery increases.

The Required Fee Schedule Under New York Law

Under Judiciary Law § 474-a, the maximum contingency fee your attorney can charge in a medical malpractice case is based on this schedule:

This structure means that as your recovery grows larger, the percentage going to your attorney decreases. More money stays with your family where it belongs.

How the Sliding Scale Works in Real Cases

To understand how this benefits families, consider a settlement of $2,000,000 in a birth injury case:

• 30% of the first $250,000 = $75,000
• 25% of the next $250,000 = $62,500
• 20% of the next $500,000 = $100,000
• 15% of the next $250,000 = $37,500
• 10% of the remaining $750,000 = $75,000

Total attorney fee: $350,000 (17.5% of the total recovery)
Amount to your family: $1,650,000

If this were a standard personal injury case with a flat one-third fee, the attorney would receive $666,667 and you would receive only $1,333,333. The sliding scale puts an extra $316,667 in your pocket.

Calculating Fees After Expenses

The fee percentages are calculated on the net sum recovered after deducting certain expenses. According to Judiciary Law § 474-a, these deductions include:

• Expert witness fees for consultation, depositions, and testimony
• Investigative services
• Other services properly related to prosecuting your case

However, the following items are not deducted when computing the attorney fee:

• Hospital liens
• Medical care liens
• Health insurance claims or assignments

Court costs and interest on a judgment are considered part of the amount recovered.

Why Does New York Have Different Rules for Medical Malpractice Cases?

Before 1985, medical malpractice attorneys in New York charged the same contingency fee as other personal injury cases, typically one-third of the recovery. Following lobbying efforts by the medical industry, the New York Legislature enacted the sliding scale fee structure in 1985.

The stated purposes behind this restriction include:

• Ensuring a greater portion of recoveries reaches injured patients and their families
• Providing transparency and predictability in fee arrangements
• Reducing incentives to pursue questionable claims

The sliding scale has generated ongoing debate. Bills proposing updates to reflect inflation have been introduced in nearly every legislative session since 1994, but the fee schedule has remained largely unchanged since 1986. Critics argue this makes it increasingly difficult for attorneys to accept complex medical malpractice cases, particularly those involving modest damages but significant litigation costs.

Despite these challenges, the sliding scale remains the law and provides meaningful financial protection for families in substantial birth injury cases.

What Your Attorney Must Provide in Writing

New York law requires strict documentation of contingency fee arrangements to protect clients. Before you proceed with a birth injury case, your attorney must provide specific written information.

The Letter of Engagement

Under 22 NYCRR § 1215.1, your attorney must provide a written letter of engagement before beginning representation or within a reasonable time afterward. This letter must explain:

• The scope of legal services to be provided
• Attorney fees to be charged, expenses, and billing practices
• Your right to arbitrate fee disputes if disagreements arise

The Contingency Fee Agreement

Under New York Rules of Professional Conduct Rule 1.5, promptly after being hired, your lawyer must give you a written agreement stating:

• How the fee will be calculated
• The percentage the lawyer will receive if the case settles, goes to trial, or requires an appeal
• What litigation and other expenses will be deducted from the recovery
• Whether expenses are deducted before or after calculating the contingent fee
• Any expenses you might be responsible for regardless of the outcome

When your case concludes, your attorney must provide a written closing statement showing the outcome, and if there was a recovery, how much you received and how it was calculated.

Court Filing Requirements

New York courts require additional documentation. Within 30 days of accepting your case, your attorney must file a retainer statement with the Office of Court Administration. This confidential statement includes the date of the agreement, terms of compensation, your contact information, and details about the incident.

After receiving any settlement or verdict payment, your attorney must file a closing statement within 15 days showing the gross recovery amount, net amounts to you and to the attorney, and itemized expenses. You also receive a copy of this statement.

These requirements create a paper trail that protects you and ensures accountability.

Can Attorney Fees Ever Be Higher Than the Sliding Scale?

In most cases, no. However, New York law recognizes that some cases involve extraordinary circumstances that justify higher fees.

Applying for Enhanced Fees

Under Judiciary Law § 474-a, if your attorney believes in good faith that the statutory fee schedule won’t provide adequate compensation due to extraordinary circumstances, they may apply to the court for greater compensation.

This application must be:

• Made by affidavit
• Filed with written notice to you and anyone else holding liens on the recovery
• Submitted to the judge handling your case

The judge has discretion to approve higher fees if extraordinary circumstances exist. The enhanced fee cannot exceed what you and your attorney originally agreed upon in your contract. The judge must issue a written order explaining why greater compensation was granted.

What Counts as Extraordinary Circumstances

The statute doesn’t define extraordinary circumstances, but courts have considered factors such as:

• Exceptional complexity of the case
• Unusual time and effort required beyond typical medical malpractice cases
• Novel legal issues without established precedent
• Difficulty of proving the claim
• The risk undertaken by the attorney

Your consent is not required if the court finds extraordinary circumstances justify a higher fee. However, enhanced fee applications are relatively uncommon and require significant justification.

Special Protections When Your Case Involves a Child

Birth injury cases always involve minors, which triggers additional safeguards under New York law.

Court Approval Is Required for All Settlements

Under Judiciary Law § 474, any contingent fee agreement on behalf of a child is subject to court review and approval. This provides an extra layer of oversight to ensure the fee arrangement is fair.

Additionally, under CPLR §§ 1207 and 1208, any settlement on behalf of a minor requires court approval through a proceeding called an infant compromise. The judge must review the proposed settlement and attorney fees before approving the agreement.

What the Court Reviews

The court will examine several documents before approving your child’s settlement:

• The proposed order approving the settlement
• Your attorney’s written explanation of why they recommend the settlement
• Medical proof and records
• Documentation of medical charges and amounts paid or unpaid
• Information about your child’s current condition and long-term prognosis

Under 22 NYCRR § 202.67, the court’s order may provide for deduction of specified expenses from the settlement, but attorney fees cannot exceed one-third of the amount remaining after those deductions unless the court specifically authorizes more. For medical malpractice cases, the sliding scale under Judiciary Law § 474-a applies, which typically results in fees well below one-third.

Structured Settlements Provide Long-Term Security

For substantial birth injury settlements, courts often require or strongly encourage structured settlements that provide periodic payments over time rather than a lump sum.

Structured settlements offer important benefits for children with birth injuries:

• Tax-free income for life
• Long-term financial security for ongoing medical care and therapy needs
• Protection from depletion of funds through mismanagement or overspending
• Customizable payment schedules that match your child’s needs as they grow

A structured settlement might include an initial lump sum to cover immediate expenses, followed by monthly payments for living expenses and medical care, with larger payments scheduled for major life events or when specific needs arise.

How Medical Malpractice Fees Differ From Other Injury Cases

New York treats medical malpractice cases differently from other personal injury claims when it comes to attorney fees:

For general personal injury cases, attorneys may charge either a graduated scale starting at 50% of the first $1,000 and decreasing to 25% of amounts over $25,000, or a flat percentage not exceeding 33⅓% if the agreement so provides.

For medical malpractice, only the sliding scale under Judiciary Law § 474-a applies. There is no option for a flat percentage.

What If You Disagree About Fees?

New York provides a mandatory fee dispute resolution program to protect clients.

Fee Arbitration Under Part 137

Under 22 NYCRR Part 137, New York offers fee arbitration administered by local bar associations. Key features include:

• Arbitration is mandatory for the attorney if you request it
• Arbitration is voluntary for you as the client
• Applies to fee disputes between $1,000 and $50,000 (disputes outside this range may proceed with mutual consent)
• The arbitration award is final and binding unless either party seeks a new trial within 30 days

Before your attorney can sue you for unpaid fees, they must notify you of your right to arbitration and provide written instructions for accessing the local fee dispute resolution program. You then have 30 days to request arbitration.

Protection Against Excessive Fees

Under Rule 1.5 of the New York Rules of Professional Conduct, lawyers cannot charge or collect excessive or illegal fees. Even within the statutory sliding scale, fees must be reasonable.

Factors courts consider when evaluating whether a fee is excessive include:

• Time and labor required
• Novelty and difficulty of the legal questions involved
• Skill required to perform the legal service properly
• Whether accepting the case prevented the attorney from taking other work
• The customary fee in the area for similar services
• The amount involved and results obtained
• Time limitations imposed
• The attorney’s experience, reputation, and ability

What About Cases Involving Multiple Attorneys?

Complex birth injury cases sometimes involve more than one attorney, such as when a local attorney refers the case to a firm that specializes in medical malpractice trials.

Fee Sharing Between Attorneys

Under Rule 1.5 of the New York Rules of Professional Conduct, lawyers may divide fees only if:

• The division is proportional to services performed by each lawyer, or each lawyer assumes joint responsibility for your case in writing
• You agree to the arrangement after full disclosure of how the fee will be split and how much each lawyer will receive, and your agreement is confirmed in writing
• The total fee is not excessive

When multiple attorneys are involved, the total fee they receive cannot exceed what the sliding scale allows. The attorneys must divide that fee among themselves according to their agreement.

If one attorney retains another attorney on a contingent fee basis, they must file a separate retainer statement within 15 days documenting the fee arrangement between the attorneys and the services to be provided.

Understanding Litigation Costs and Expenses

Attorney fees and litigation expenses are two different things. While your attorney doesn’t collect fees unless you win, expenses are handled differently.

What Litigation Expenses Include

Birth injury medical malpractice cases involve substantial expenses beyond attorney time:

• Expert witness fees for consultation, depositions, and trial testimony
• Court filing fees
• Deposition costs including stenographer and transcript fees
• Medical record retrieval and copying
• Investigative services
• Demonstrative evidence such as medical illustrations and animations
• Travel expenses for experts or witnesses

These costs can easily reach $50,000 to $100,000 or more in a complex birth injury case.

Who Pays These Expenses?

Your retainer agreement should clearly specify:

• Whether your attorney advances expenses during litigation
• Whether you must reimburse expenses regardless of the outcome
• Whether expenses are deducted before or after calculating the contingency fee

Under New York Rules of Professional Conduct Rule 1.8, lawyers may advance court costs and expenses of litigation, with repayment contingent on the outcome. In contingent fee cases, attorneys may pay costs and expenses on their own account, and their fee may include reimbursement of such costs.

Most experienced birth injury attorneys advance all litigation expenses and only recoup them if the case is successful. However, this should be explicitly stated in your written agreement.

As noted earlier, under Judiciary Law § 474-a, the contingency fee is calculated on the net recovery after deducting these expenses.

New York Has No Cap on Birth Injury Damages

While New York regulates attorney fees in medical malpractice cases, the state does not cap the damages you can recover.

Full Compensation Is Available

Unlike some states that limit recovery in medical malpractice cases, New York allows:

• Full compensation for economic damages, including past and future medical expenses, therapy costs, special education needs, home modifications, assistive equipment, and lost earning capacity
• Unlimited recovery for non-economic damages, including pain and suffering, emotional distress, loss of enjoyment of life, and permanent disability

Each case is evaluated based on its specific facts and the severity of injury. Judges and juries can award whatever amount they determine is appropriate to fully compensate your family.

This is particularly significant for birth injury cases involving conditions like cerebral palsy, Erb’s palsy, or hypoxic-ischemic encephalopathy, where lifetime care costs can reach millions of dollars.

Proposed Legislation Has Not Passed

Some legislators have periodically introduced bills proposing caps on non-economic damages in medical malpractice cases. As of November 2025, no such cap has been enacted in New York. Any limitation on damages would require new legislation and would likely face significant opposition from patient advocacy groups.

Important Questions to Ask Before Hiring an Attorney

When considering legal representation for a birth injury case, ask potential attorneys these questions:

• Will you provide a written letter of engagement and contingency fee agreement before beginning work?
• What percentage of your practice focuses on birth injury and medical malpractice cases?
• Will you advance all litigation expenses, or will I be responsible for costs regardless of outcome?
• Are expenses deducted before or after calculating your contingency fee?
• Have you handled cases involving this specific type of birth injury?
• Who will actually work on my case, and what is their experience?
• How will you communicate with me throughout the process?
• Have you ever applied for enhanced fees above the statutory sliding scale, and under what circumstances?

A reputable attorney should welcome these questions and provide clear, straightforward answers.

What Families Should Know Before Moving Forward

The no win, no fee structure makes it possible for families to pursue justice after a preventable birth injury without assuming financial risk. New York’s sliding scale fee structure provides additional protection by ensuring the majority of any recovery goes to your family, not to your attorney.

Key Points to Remember

• You pay no attorney fees unless your case results in a settlement or verdict in your favor
• New York law requires a sliding scale that reduces attorney fees as recoveries increase
• All fee arrangements must be documented in writing before your attorney begins work
• Settlements involving children require court approval, providing an extra layer of protection
• You have the right to arbitration if fee disputes arise
• New York does not cap damages in medical malpractice cases, allowing full compensation for severe birth injuries

At NYBirthInjury.com, through the experienced birth injury lawyers at the Porter Law Group, we work on a contingency fee basis. If your child has suffered a birth injury in New York, and you are looking to file a claim, do not delay. Contact us today for a free, no-obligation consultation. Our experienced birth injury attorneys have recovered millions of dollars for victims of medical negligence throughout decades of service all over New York State, and we want to help you and your family recover the compensation you deserve.

The Importance of Experienced Representation

While the contingency fee structure removes financial barriers, choosing the right attorney remains critical. Birth injury medical malpractice cases are among the most complex in civil litigation. They require extensive medical knowledge, access to qualified experts, and significant financial resources to prosecute effectively.

Look for attorneys who:

• Focus specifically on birth injury and medical malpractice cases
• Have a track record of substantial settlements and verdicts
• Can demonstrate access to qualified medical experts
• Are willing to take cases to trial when necessary
• Communicate clearly about the process and realistic expectations

The time after a birth injury is emotionally and financially challenging. The legal process can feel daunting. Understanding your rights and the fee structure that protects you is an important first step.

At nybirthinjury.com, we provide trusted information to help families understand birth injuries, medical care options, and available support resources. While this page explains the legal framework for contingency fees, every case is unique. Families considering legal action should consult with a qualified birth injury attorney who can evaluate their specific circumstances and explain how New York’s fee protections apply to their case.

You deserve answers. You deserve accountability. And you deserve an attorney who is invested in your family’s future, not just their own fee.