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.

Slip, Trip and Fall Accidents in New York City

What Is the Statute of Limitations for Slip, Trip and Fall accidents in New York?

According to data from the National Safety Council, there were more than 34,000 deaths due to falls in 2016. Both at home and in the workplace, slip, trip and fall accidents are among the most common injuries. These accidents involve “slips” due to friction related conditions such as foreign substances on floors and stairways, ice and snow on walkways, steps and streets. Falls can also be caused by “trips” due to defects in premises and streets, such holes, cracks and non-level surfaces of all kinds.

If you have experienced a slip and fall, or a trip and fall accident on another person’s property in New York City, it’s a good idea to discuss your case with a New York slip and fall personal injury lawyer. You may be entitled to receive compensation for any damages you suffered, which may include medical bills, lost wages, and other expenses.

What Is the Statute of Limitations for Slip, Trip and Fall accidents in New York?

Each state has laws that govern how long a person has to file a lawsuit. These laws are called statutes of limitation. A statute of limitation puts a limit on how long someone has to file a claim. If a statute of limitation didn’t exist, anyone could file a lawsuit against another person or a corporation decades or even a lifetime after an accident occurred.

Under New York law, individuals injured in a “slip and fall” or “trip and fall” accident have three years from the date their injury occurred to file a personal injury claim. The three-year time limit is the same for people who suffer property damage but no physical damage in a slip and fall case. For example, someone might slip and fall and crush an expensive watch but not get hurt physically. In that case, they must still file a claim within three years of the date of the accident.

Despite the statute of limitations, there are certain circumstances under which the court might stop the clock from running. This is referred to as “tolling” the statute of limitations. This primarily applies to children for whom the statute of limitations is tolled until they reach 18.

Does Comparative Negligence Apply in Slip, Trip and Fall Cases?

In some slip, trip and fall cases, the owner of the property or their insurance provider may try to argue that you bear some responsibility for the accident that led to your injuries. This is known as comparative negligence.

The property owner or insurance company may use this argument in an attempt to lower or negate any damages you may receive. Defense arguments based on comparative negligence can take a few different forms. In a slip and fall case, you might see the defendant argue any of the following:

You trespassed in an area of the property where you shouldn’t have ventured.
The area where you slipped and fell was marked with a sign or object that indicated it was slippery or unsafe.
The dangerous condition was open and obvious.
You were unreasonably distracted at the time of your slip and fall. For example, if you were looking down at a text on your phone and stumbled over a curb or down a set of subway steps, the defendant might argue that your negligence contributed to your fall.

Even if none of these situations apply in your case, the property owner or their insurance company may still try to argue that they do. Keep in mind that insurers want to pay as little as possible toward a claim, which can lead them to raise as many defenses as possible.

The most problematic aspect of slip and fall cases is proving that the property owner had notice of a dangerous condition prior to the accident. In cases of foreign substances on stairs or walkways, this can be particularly problematic. In trip and fall cases, where there is a defect in the property, expert testimony may be helpful to prove how the defect occurred and how long it was there without being fixed.

Comparative Negligence and Damages in Slip, Trip and Fall Cases

In cases in which the defendant or their insurance company successfully argues that the plaintiff’s negligence played a role in the slip and fall, the judge or jury can reduce the damages in accordance with the percentage of negligence attributed to the plaintiff.

For example, assume your damages come out to $100,000 and the jury decides you are 30 percent responsible for the slip and fall, you would receive $70,000, as the court would subtract 30 percent of the damages from the original award.

The comparative negligence rule can still be an issue in the event you enter into a settlement negotiation with the property owner or their insurance company. They can still argue that you are responsible for a certain portion of the negligence that led to the slip and fall.

This is why it’s important to consider working with an experienced New York City personal injury lawyer before attempting to negotiate with the insurance company.

Contact a NYC Slip and Fall Personal Injury Lawyer

Slip, trip and fall accidents are common, which can sometimes lead people to dismiss them as not being a big deal. However, people who have been seriously injured in a fall know how debilitating the injuries from a slip and fall can be.

New York City is a busy, active place, and there are many hazards inside buildings and on the streets that can lead to a dangerous slip and fall, or a trip and fall. If you have been injured in a slip, trip and fall in New York, it’s in your best interest to consult with an NYC slip and fall accident injury lawyer https://www.jcreiterlaw.com/

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Telephone: 212-736-0979

Sources:

https://www.nsc.org/work-safety/safety-topics/slips-trips-falls
https://www.nysenate.gov/legislation/laws/CVP/214

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Prior results cannot and do not guarantee or predict a similar outcome with respect to any future case. Recoveries always depend upon the facts and circumstances of each case, the injuries suffered, damages incurred, and the responsibility of those involved.

Jonathan C Reiter Law Firm