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.

Overuse of Testing Increases the Risk of New York Medical Mistakes

Doctors routinely overuse testing for both serious and minor medical conditions. The Annals of Internal Medicine published a study indicating that hospitals reported overuse of testing in the majority of situations. Hospitals were surveyed and presented with practice patterns for two common clinical vignettes: both preoperative evaluation and syncope. The respondents were provided one of four versions of the different vignettes, each with identical clinical information presented in different ways. Respondents were then asked to determine what they think most hospitalists would recommend under each scenario.

The results revealed that the majority of hospitalists would overuse testing. In fact, overuse was reported in between 52 and 65 percent of postoperative evaluations. Overuse of testing was also reported in between 82 and 85 percent of syncope situations. An experienced New York medical malpractice lawyer knows that the more tests and procedures that are performed, the greater the chances of mistakes being made in the testing process or in the diagnosis. This can lead to serious medical problems, unnecessary and painful treatment, and incorrect diagnoses. Whenever a victim is harmed by medical mistakes or errors made by physicians, including the overuse of unnecessary testing, the victim needs to be compensated for losses caused by these medical errors.

Overuse of Testing Can Have Serious Consequences for Patients

The Wall Street Journal warns that when doctors overuse testing, patients may experience medical complications. One example that was given was when a patient undergoes an unnecessary cardiac stress test. The test could lead to a false positive, which in turn could result in a high-risk cardiac catheterization. Something could go wrong at any stage of this treatment process, and the patient could be harmed by a medical error in a procedure that did not need to happen in the first place.

Another example is that when a patient is treated with an antibiotic unnecessarily when the patient really has a viral infection, the unnecessary medication could cause the patient to suffer serious side effects.

The Wall Street Journal looked at some of the reasons why this unnecessary testing happens. One reason is to reassure the patient. Another reason is because doctors and hospitals may have a financial incentive for ordering more tests and treatments. Defensive medicine is cited as another possible reason for testing, although past studies have suggested that fear of medical malpractice lawsuits does not generally result in a significant increase in the number of tests that doctors perform on patients.

One of the possible solutions proposed to reduce this unnecessary testing is to institute better communications procedures and to change the way in which patients are compensated when something goes wrong.

The University of Michigan, for example, implemented a communication and resolution program that the Journal reports has been successful and that is being dubbed the “Michigan model.” The goal of the Michigan Model, which is being tried at other facilities, is to encourage full disclosure when medical errors are made. Patients are told of the mistakes and offered financial compensation, allowing for speedy resolution of problems that doctors cause.

It remains to be seen if this will be an effective way of reducing unnecessary testing, or of compensating patients who suffer harm. It is clear, however, that somethings needs to be done because patients do not deserve to be hurt by doctors who order unnecessary tests.

For more information about how a medical malpractice attorney in New York can help you with your medical malpractice case, contact Jonathan C. Reiter Law Firm, PLLC. Call 212-736-0979 or visit http://www.jcreiterlaw.com and schedule a free consultation today.

Jonathan C. Reiter NYC Injury Lawyer

New York City Personal Injury Lawyer / Aviation Accident Attorney