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.

Commonly Misdiagnosed Cancers

Cancer is a leading cause of death in every country in the world. As devastating as a cancer diagnosis can be, experiencing a delay in treatment due to a cancer misdiagnosis makes things worse.

In some cases, the symptoms of certain types of cancers mimic those of other diseases. If doctors aren’t diligent or don’t conduct the proper types of testing, they can mistake cancer for a different health problem.

If your cancer treatment was delayed due to a misdiagnosis, it’s important to discuss your case with a New York City medical malpractice lawyer. You may be entitled to receive compensation.

Important Cancer Statistics

Here are some key cancer statistics according to the National Cancer Institute:

Over 1.7 million people were diagnosed with cancer in 2018.
In 2018, an estimated 609,000 people died from cancer.
The most common cancers in the United States are breast cancer, lung cancer, prostate cancer, colon cancer, melanoma, bladder cancer, non-Hodgkin lymphoma, and kidney cancer.
Deaths from cancer are higher among men compared to women. Cancer mortality is also higher among African-Americans. Cancer mortality is lowest among women of Asian/Pacific Islander descent.
In 2017, the U.S. spent $147.3 billion on medical care related to cancer. Experts expect this to increase as the population ages.

One of the things that makes cancer susceptible to delayed diagnosis and misdiagnosis is the fact that there are so many different types of cancer.

Unlike other diseases, cancer can affect the body differently depending on where it forms. Various types of cancer may also call for different treatments. Some types of cancer can grow for years or even decades before they are easily detected.

Which Cancers Are Misdiagnosed Most Often?

Health experts suspect that some cancers are misdiagnosed more often than others simply because they occur more often. A very rare cancer will probably have comparatively fewer misdiagnoses than cancer that occurs very frequently in the population.

In other cases, certain types of cancers don’t show any symptoms in the initial stages, which can cause patients to dismiss minor complaints. When they see a doctor, their doctor might diagnose them with a less serious issue, leading to a delay in potentially life-saving treatment.

Breast Cancer

Statistically, about 1 in 8 women will be diagnosed with some kind of cancer during their lifetime. Breast cancer is the top cause of cancer in women, and some types of breast cancer are misdiagnosed at higher rates than other kinds of cancer.

Inflammatory breast cancer is a type of cancer that can cause the breast to become red, swollen, and inflamed. Many women don’t associate these symptoms with breast cancer. Likewise, doctors may diagnose these symptoms as other issues in the breast, such as fibrocystic breast disease or mastitis. Misdiagnosis of this type of breast cancer is particularly common among younger women, who have lower breast cancer rates compared to women over 60.

Colorectal Cancer

Colorectal cancer encompasses rectal cancer, colon cancer, and cancers that occur in the lower intestine. It’s common for patients who have colorectal cancer to be misdiagnosed as having irritable bowel syndrome, celiac disease, or ulcerative colitis.

Pancreatic Cancer

When patients with pancreatic cancer have symptoms, they tend to occur in the digestive system. As with colorectal cancer, a person with pancreatic cancer might experience symptoms that make a doctor misdiagnose them as having irritable bowel syndrome. They may also be told they have gallstones or pancreatitis.

Lung Cancer

Together, breast, colorectal, and lung cancer make up 10 percent of all misdiagnosed cancer cases. The symptoms of lung cancer can vary, but many patients experience wheezing and coughing. These symptoms often appear in chest infections, the flu, and the common cold. As a result, patients may not receive a timely diagnosis. Their doctor might tell them they have asthma, pneumonia, or bronchitis. This can lead to a delay in treatment.

When patients don’t receive the treatment they need right away, cancer can spread to other parts of the body, where it is often more difficult to treat. In some cases, the person can’t receive any kind of life-saving treatment because the cancer is too widespread. This is a devastating diagnosis for a patient.

Discuss Your Case with an NYC Medical Malpractice Lawyer

If you have suffered a delay in your treatment due to a misdiagnosis or a delayed diagnosis involving cancer, you should discuss your options with an experienced New York City medical malpractice lawyer as soon as possible. If your loved one died due to a delay in cancer diagnosis or a cancer misdiagnosis, you may be entitled to compensation through a wrongful death claim.

There are strict time limits for filing a medical malpractice claim, so it’s in your best interest to seek help from a knowledgeable medical malpractice lawyer right away.

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Sources:

https://www.cancer.gov/about-cancer/understanding/statistics
https://www.webmd.com/cancer/cancer-misdiagnosis-how-handle#1

Medical misdiagnosis lawyer in New York City Jonathan C. Reiter Law Firm, PLLC

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