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.

New York Senate Majority Leader Faces Pressure to Bring Med Mal Reform Bill to Senate Floor

Medical malpractice cases in the state of New York must be brought within the statute of limitations. In New York, the state law starts the clock for the statute of limitations at the time when the negligence occurs. If the malpractice happened in a private or a non-profit hospital, the case must be filed within 30 months of the negligence. If it occurred in a public hospital, the case must be filed within 15 months.

An effort is underway to change New York’s rule so the clock begins running from the time the affected patient learns about the malpractice, rather than from the time when the doctor makes the mistake. The bill to make the change is called Lavern’s Law, and is named after a 41-year-old woman in Brooklyn who died in 2013 of a form of lung cancer that should have been curable.

Kings County Hospital failed to tell her about a small mass on her right lung when she underwent an x-ray in 2010, and the cancer had spread to her brain and spine by the time the cancer was finally discovered during a subsequent hospitalization in 2012. The stage four lung cancer she was diagnosed with was no longer curable. By that time, the 15-month statute of limitations had passed and she was no longer able to sue. Estimates suggest she may have been awarded around $8 to $10 million in damages if she could have sued, which would have been enough to provide care for her 41-year-old mentally disabled autistic child who requires round-the-clock assistance and who was left an orphan by his mother’s death.

Senators Push Majority Leader to Bring Lavern’s Law to the Floor

The New York Daily News reports Senate Majority Leader John Flanagan has not brought Lavern’s Law to the floor, even though there are more than 32 state senators who have signed on to the bill. There’s enough votes to pass it, and senators and patient advocates are pushing the Majority Leader to hold a vote.

Another state senator, Thomas Libous, is making a personal push for the passage of the law. A different Daily News article indicates Libous is being treated for incurable lung cancer that will ultimately be fatal. He plans to meet face-to-face with the Senate majority leader and believes the passage of the law would be one of the best things he could do at this point in his life.

With slow moving cancers, often a misdiagnosis is not discovered until long after the 15-month statute of limitations has passed. Because of situations like this, 44 other states in the U.S. have “date of discovery” statutes. New York, however, may not get the change it needs because of fierce opposition from the medical and insurance industries.

Hopefully, the pressure from the other senators and patient advocates will force the bill to come to a vote so those who face serious harm can pursue a case and not be disqualified from compensation just because they didn’t realize a doctor had hurt them until it was too late.

Jonathan C. Reiter NYC Injury Lawyer

New York City Personal Injury Lawyer / Aviation Accident Attorney