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.

Medical Misdiagnosis Can Have Serious Consequences for Bronx Patients

Patients throughout the Bronx can be badly harmed by a misdiagnosis made by a medical professional. When a doctor makes an error and fails to diagnose a patient with a serious medical condition, a patient’s treatment can be delayed, making the patient’s health problems worse or even irreversible. A failure to correctly diagnose a serious medical condition can have life-changing or fatal consequences. But the consequences can be just as dangerous or life-threatening if a doctor diagnoses a condition a patient does not have.

When patients are diagnosed with conditions they don’t actually have, such medical misdiagnosis can lead to unnecessary treatments. These treatments can affect patients’ health in terrible ways. Patients who are over-treated or given drugs or therapy they do not need face all of the side effects of such treatments but do not get any of the benefits. Doctors who misdiagnosed conditions can be held responsible for resulting damages in a civil lawsuit.

Medical Misdiagnosis Can Cause Patients Serious Harm

In most cases, misdiagnosis is unintentional or accidental. In some situations, however, doctors intentionally misdiagnose patients because the doctor wants to obtain compensation for such unnecessary treatments. When this occurs, misdiagnosis can not only result in a civil lawsuit allowing victims to recover damages but also in a criminal case against the doctor for healthcare fraud or other crimes. Yahoo News recently reported one egregious case in which a physician was sentenced to 45 years in prison for intentionally misdiagnosing patients with cancer and subjecting patients to unnecessary chemotherapy treatments. The chemotherapy scam affected more than 550 victims and racked up $34.7 million in payments for more than 2,000 unnecessary treatments, Yahoo News reported.

Dr. Farid Fata, a 50-year-old cancer physician, will likely spend the rest of his life in prison for his intentional misdiagnosis of cancer patients. The defense argued the physician should be sentenced to 25-years because of his hypertension and diabetes, which give him a shorter lifespan. Prosecutors argued for a 175-year maximum sentence.

Speaking at his sentencing hearing, U.S. District Judge Paul Borman, who sentencing the Fata to 45 years in prison, said the doctor “shut down whatever compassion he had as a doctor and switched it to making money,” according to an Associated Press article published by The New York Times.

Patients, Family Members Speak Out Against Unnecessary Medical Treatments

The 45-year sentence was for crimes of healthcare fraud and illegal payments for unnecessary medical services. Patients and family members whose lives were turned upside down by the misdiagnosis spoke at the sentencing hearing.

“Farid Fata, I hate you,” said Laura Stedtfeld, who blames Fata for her father’s death, according to another about the case published by The New York Times. “You are repulsive. You disgust me. You are a monster. … Clearly you’re a coward because you can’t even look at me now. You poisoned, tortured and murdered my dad.”

Patients described having no teeth left, having chronic pain and weakness, and experiencing other serious and permanent health problems because the doctor falsely told them they had cancer and they underwent unnecessary chemotherapy, which kills healthy cells.

Unnecessary Medical Treatments Dangerous, Can Cause Harm

Dr. Fata also administered unnecessary treatments to people who actually did have cancer. These patients experienced also serious health problems since they received far more chemotherapy treatments than necessary to treat cancerous cells.

In addition, some patients developed cancer because of the chemotherapy and some patients died. One woman spoke at the sentencing hearing for the doctor and accused him of torturing her father on purpose for no reason after intentionally misdiagnosing him.

Because Dr. Fata lied to patients to collect more than $34 million for more than 2,000 unnecessary chemotherapy treatments, this case was considered a criminal case. While intentional misdiagnosis for profit is unusual, misdiagnosis cases are not uncommon. Misdiagnosis is a leading cause of civil lawsuits for medical malpractice. Not every medical error or misdiagnosis will result in criminal charges against the physician. But every case where patients suffer because of a medical error could result in a lawsuit in which patients might be entitled to be compensated for their losses.

Jonathan C. Reiter NYC Injury Lawyer

New York City Personal Injury Lawyer / Aviation Accident Attorney