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 Court Decision Extends Doctors’ Duty of Care

Doctors owe a duty of care to their patients. They must make the patient their first concern and practice medicine safely and effectively. If that duty of care is breached and the patient suffers harm, the doctor may be legally responsible.

Similarly, courts have found that doctors have a duty to warn patients about the risks and complications of the drugs they prescribe. For example, let’s say your doctor prescribes a drug that may cause you to become drowsy, but the doctor fails to mention this possible side effect. If you are injured in an accident while driving after taking the drug, you may have grounds to file a medical malpractice lawsuit against the physician and the hospital.

But does that duty to warn extend to third parties who are injured? If you took a prescription drug and you were not warned by your doctor that it might cause you to become drowsy and you cause an accident, what legal rights does an injured third party have?

Groundbreaking Ruling: Third Parties Can Sue Hospitals

According to a Dec. 16, 2015, New York Court of Appeals decision, a third party injured in such an accident can file a medical malpractice lawsuit against a doctor and the hospital. This significant ruling alters the longstanding law that the duty of care does not extend beyond the patient. The Court of Appeals reinstated a medical malpractice lawsuit against a Long Island hospital and a physician’s assistant in the case of Davis v. South Nassau Communities Hospital.

According to the court documents, Lorraine Walsh was treated at South Nassau Communities Hospital for abdominal pain on March 4, 2009. She was given several medications, including a narcotic medication, to reduce the pain. About 20 minutes after she was discharged from the hospital, she fell unconscious while driving, crossed a double yellow line and allegedly collided with a bus. The bus driver, Edwin Davis, was injured and filed a lawsuit claiming medical providers at the hospital failed to warn Walsh that the drugs she was prescribed could impair her ability to drive. Davis’ lawsuit was dismissed by a lower court. The judge concluded the doctor and physician’s assistant owed no duty of care to the bus driver. The Appellate Division: Second Judicial Department affirmed the ruling in Davis et al. v. South Nassau Communities Hospital et al.

But in a 4-2 decision, the Court of Appeals ruled that medical providers have a duty to warn patients of the possible danger from drugged driving that extends to third parties. Dissenting judges argued that the duty is restricted to the patient. In the ruling, Judge Eugene Fahey wrote that courts have “historically proceeded carefully and with reluctance to expand an existing duty of care.”

However, he noted that the extension to the injured third party was warranted in this case. He cited the 1916 opinion in MacPherson v. Buick Motor Co., a groundbreaking decision that created a new products liability standard. In the 100-year-old decision, Judge Benjamin Cardozo wrote “the principle that the danger must be imminent does not change, but the things subject to the principle do change. They are whatever the needs of life in a developing civilization requires them to be.”

Jonathan C. Reiter NYC Injury Lawyer

New York City Personal Injury Lawyer / Aviation Accident Attorney