What are the Contingent Fees in a New York Medical Malpractice Case?

New York's Judiciary Law Section 474-A provides that in a medical malpractice case the attorney's fee is 30% of the first $250,000 of the "net sum" recovered. For the next $250,000 recovered, the fee is 25%. For the next $500,000 recovered the fee is 20%. For the next $250,000 recovered the fee is 15%. After that for any amount recovered over $1,250,000 the fee is 10%. The "net sum" recovered is the gross amount of the judgment or settlement, minus the amount of money the attorney has laid out for the expenses of the case. The expenses usually include fees for expert witnesses, court filings, transcripts, subpoenas, medical records and other similar expenses. As an example, if there is a gross settlement of $1million and expenses of $50,000, the fee would be calculated as follows: $1 million minus $50,000 equals $950,000 (the net sum recovered). 30% of the first 250,000 = 75,000 25% of the next 250,000 = 62,500 20% of remaining $450,000 = 90,000 Total fee = 227,500 Net to client = $772,500

Is an Expert Required in Order to File a Complain in a New York Medical Malpractice Case?

Yes. Pursuant to New York Civil Practice Law and Rules section 3012-A, a certificate of merit must accompany the complaint which states that the attorney for the plaintiff has consulted with an expert physician and that on the basis of that expert review, there is a reasonable ground for the commencement of a medical malpractice case. If there is insufficient time to obtain this medical review before the statute of limitations expires, then the attorney can state that in the certificate and later file a supplemental certificate when the expert review has been obtained.

What is a Notice of Medical Malpractice in New York?

Pursuant to section 3406 of the NY Civil Practice Law and Rules, the notice of medical malpractice action is a mandatory form that must be filled by the plaintiff with the clerk of the Court within 60 days of the service of answers by all defendants

What is the statute of limitations for a medical malpractice case in New York?

Answer: Pursuant to section 214-a of the NY Civil Practice Law and Rules, the basic medical malpractice statute of limitations is 2 and ½ years from the date of the malpractice or the last date of continuous treatment by the physician or hospital sought to be held responsible for the same injury or condition that gave rise to the malpractice. This statute of limitation applies to private physicians, hospitals, nurses and other health care providers.

What is the statute of limitations for medical malpractice by New York City Health and Hospitals Corporation? (NYCHHC)

Answer: There are special rules applicable to malpractice by public hospitals run by the New York City Health and Hospitals Corporation, such as Bellevue, Jacoby, Elmhurst, Metropolitan, Lincoln and others. Pursuant to Section 7401 of the NY Unconsolidated Laws, a medical malpractice lawsuit against the NYCHHC must be commenced within one year and ninety days. There is also the requirement that a notice of claim be filed with NYCHHC within ninety days in conformity with NY General Municipal Law 50-e.

What is the statute of limitations for a malpractice in failing to diagnose cancer?

Answer: Section 214-a of the NY Civil Practice Law and Rules provides that the statute of limitations for cancer misdiagnosis is 2 and ½ years from the date that the cancer was diagnosed, or that the patient should have known of the diagnosis of cancer. This is a special provision applicable only to cancer that measures the 2 and ½ years from the date of discovery of the cancer, rather than the date of misdiagnosis. This provision was added by the legislature to remedy the situation where a misdiagnosis is made and the patient is unaware of the cancer for a prolonged period of time until it is discovered.

What is the statute of limitations for medical malpractice that causes the wrongful death of the patient?

Answer: When medical malpractice causes the death of the patient, there is a claim for the patient's injuries, pain and suffering up to the time of death, that is governed by Section 214-a of the NY Civil Practice Law and Rules, which provides for a 2 and ½ year statute of limitations measured from the date of the malpractice, the last date of continuous treatment, or in the case of cancer misdiagnosis, from the date of discovery of the cancer. There is also a separate claim for the wrongful death of the patient. Pursuant to Section 5-4.1 of the NY Estates, Powers and Trusts Law, the claim for wrongful death must be brought within 2 years from the date of death by the legal representative of the patient's estate, e.g, an executor or administrator.

What Is a Life Care Plan in a Medical Malpractice or Personal Injury Case?

When a person gets injured in an accident or harmed due to a medical mistake, they may be able to recover damages to compensate them for their injuries. Under New York law, these damages can include for lost wages, medical bills, the loss of earning capacity, and pain and suffering, among other things.

Injury victims are also sometimes eligible to receive money for future medical expenses and custodial care. In many personal injury and medical malpractice cases, the individual’s injuries are catastrophic and life-changing. They may face years of therapy, surgery, and other medical interventions as well as expenses for medical supplies and equipment, nursing and home care attendants, special home alterations to accommodate their disabilities or full time custodial care in a group home, nursing home or assisted living facility. Because these expenses can be so costly, medical malpractice and personal injury lawyers sometimes use a life care plan to get an accurate projection of these future expenses.

Because of the injury or medical malpractice case is the person’s only opportunity to get compensation for their expenses, it’s very important to ensure an accurate and thorough count of all possible costs. This is where a life care plan can be an invaluable tool in a settlement negotiation or trial.

Who Prepares a Life Care Plan?

In most cases, personal injury and medical malpractice lawyers work with a rehabilitation expert who prepares a life care plan. These experts have the skill and experience to analyze a person’s injuries and determine what types of medical interventions and other expenses they will need going forward.

In some cases, the experts who put together a life care plan are medical professionals themselves, such as physicians, registered nurses or physician assistants. Many of them come from rehabilitation or therapy fields, which gives them unique insight into what injury victims are facing as they move through recovery and beyond.

Once the life care plan expert reviews the person’s medical records and the facts of the case, they typically prepare a detailed report that lays out all future projected medical costs and treatments. They may cover areas like potential medical complications and surgeries that could make the cost of care much higher. It’s also common for the life care planner to meet with the injury victim and their lawyer.

The life care plan should be a comprehensive review of all potential future medical costs. This should include surgeries, medications, medical devices like wheelchairs and prosthetic limbs, rehabilitation and therapy, and the cost of assisted living or a home health aide.

What Happens After the Life Care Plan Is Ready?

Once the life care planner has created the life care plan, it is typically disclosed to the defense in an expert witness disclosure. The defense may also offer its own version of a life care plan prepared by its own expert. When the defendant’s expert prepares a life care plan, it will typically project medical costs that are much lower than those contained in the plaintiff’s life care plan. This is because the defense has an incentive to pay as little in damages in possible. In many cases, both sides have an opportunity for their experts to testify during trial and to answer questions about the life care plan and provide a rationale for why they put certain dollar figures on specific types of medical care.

There is a cost associated with the preparation of life care plans. Depending on the complexity of the case, a life care plan can run into the thousands of dollars to prepare. However, when the case involves possibly millions of dollars in future medical bills and other expenses, it’s worth having a qualified expert assess the individual’s injuries and make a comprehensive life care plan A well-crafted life care plan can also be very persuasive during a settlement negotiations, and can mean the difference between getting a lower amount of compensation and a compensation figure that provides the injury victim with real peace of mind about the future.

Discuss Your Case with a New York City Life Care Planning Attorney for Catastrophic Personal Injury and Medical Malpractice Life Care Case

No one deserves to shoulder the burden of medical bills brought about by another person’s negligence. Medical costs for serious injuries can skyrocket into the tens of thousands or even millions of dollars. Families shouldn’t have to face bankruptcy or a reduced standard of living to be able to pay for an injury victim’s necessary medical treatment.

If you’ve been injured in an accident or due to a doctor’s mistake, a life care plan could give you the peace of mind of knowing your future medical bills will be covered. There are strict time limits for filing a personal injury or medical malpractice claim. Discuss your personal injury or medical malpractice case with an experienced New York City life care plan lawyer.

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Sources:

https://www.americanbar.org/groups/health_law/publications/health_lawyer_home/2019-october/life-care/

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