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.

Hospital Medical Errors Reported By Families Often Not Recorded, Study Finds

New York medical malpractice attorney discusses disturbing findings

Hospitals often fail to accurately document medical errors and adverse reactions to medical treatment of children observed by family members and reported to hospital staff, according to a recent, nationwide study.

“Our results suggest that whether we are talking about safety surveillance research or operational hospital quality improvement and safety tracking efforts, families should be included in safety reporting,” lead study author Dr. Alisa Khan, a researcher at Harvard Medical School and Boston Children’s Hospital, said in an interview with Reuters for an article published Feb. 27 about the study.

“The key finding from this study is that both clinicians and parents accurately recognize medical errors and adverse events, but the use of hospital reporting systems lags behind,” wrote Dr. Irini Kolaitis, a researcher at the Ann and Robert H. Lurie Children’s Hospital of Chicago and Northwestern University Feinberg School of Medicine, who wasn’t involved in the study, in an email to Reuters.

Medical error study

The Journal of the American Medical Association (JAMA) Pediatrics publication published Kahn’s study on Feb. 27. Titled “Families as Partners in Hospital Error and Adverse Event Surveillance,” the study conducted by Kahn, Dr. Maitreya Coffey, Dr. Katherine P. Litterer and others sheds light on a serious problem of unreported medical errors.

The authors examined medical records for 717 patients under 17 years old treated at four pediatric medical centers in the United States between December 2014 and July 2015, according to an article about the study published Feb. 28 by Becker’s Hospital Review. As part of the study, researchers interviewed parents of hospitalized children, doctors and nurses who treated the adolescent patients.

Overall, 185 families (26 percent) reported 225 errors, according to Reuters. Researchers classified the errors as follows:

132 incidents classified as safety concerns
102 incidents classified as non-safety related quality issues
21 incidents classified as “other problems”

The chilling takeaway from the study: 49 percent of family-reported errors and 24 percent of adverse reactions reported by families were not recorded in the hospital’s medical records, according to the Becker’s Hospital Review article. That means dozens of significant errors were not documented – which likely means they may not have been addressed and were more likely to be repeated.

What are common medical errors?

Nationwide, medical mistakes are the third leading cause of death, according to Johns Hopkins surgeon, Dr. Martin Makary, whose findings were the focus of a March 6 article published by The Huffington Post. Makary published his findings in May in The BMJ, formerly known as the British Medical Journal. According to Makary, medical mistakes result in 250,000 deaths each year in the United States.

Medical errors can cover a wide range. Some of the most common medical errors include:

Misdiagnosing a patient
Prescribing the wrong medication
Performing the wrong surgical operation
Leaving medical instruments in a patient during surgery
Providing the wrong medical treatment due to misdiagnosing a patient
Failure to treat a medical condition due to misdiagnosis

Why do medical errors happen?

Medical errors occur for many different reasons. First and foremost, if a doctor misdiagnoses a patient, that patient will likely receive the wrong medical treatment or no treatment at all. And as the study cited above notes, many doctors misdiagnose patients because medical professionals don’t listen to what their patients tell them.

An August 2015 JAMA article about “never events” (medical errors that should never happen) also noted that medical errors often occur due to “inadequate communication” between hospital staff and “illegible handwriting” by surgeons, doctors and other medical staff.

Other reasons why medical errors occur include:

Lack of training or experience
Inaccurate medical records
Sleep-deprived health care workers

Many other causes of medical errors exist. Whatever the reason, you or your family should not have to suffer because of someone else’s mistake. That’s why it’s critical that you talk with an attorney as soon as possible about all the legal options available to you.

Many people choose to file a lawsuit to recover damages (financial compensation) for a medical error and to hold the responsible parties accountable. However, filing a successful medical malpractice lawsuit can be extremely challenging. That’s why it’s important that you have an experienced lawyer handling your case. New York medical malpractice attorney Jonathan C. Reiter has decades of experience handling some of the most complicated cases throughout the area.

There’s no room for error after a medical mistake. Your health – and your financial future – could be on the line. That’s why you need to make sure you carefully consider all your options. Contact our law firm and schedule a free case evaluation to learn more.

Jonathan C. Reiter NYC Injury Lawyer

New York City Personal Injury Lawyer / Aviation Accident Attorney