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.

Some Bronx Doctors More Prone to Surgical Errors

Surgical errors happen every day in the United States and have significant and profound consequences for patients. Surgical errors happen with common procedures, including prostate removal, hip replacement, and knee replacement, even though these procedures are performed hundreds of times per year. Some doctors are significantly more likely than others to make mistakes.

Patients who are harmed by a surgical mistake in New York should come forward to report their complications to the state medical board and should file a lawsuit for malpractice against the physician responsible. A patient can not only recover compensation, but could potentially help save lives in the future. Physicians who make one serious mistake are much more likely to make another, as compared with doctors who are more careful and have lower overall complication rates.

Research Shows Small Percentage of Doctors Making Surgical Errors

ProPublica recently created the first-ever nationwide evaluation of individual surgeon performance. Consumer Reports indicates some of the methods used by ProPublica were controversial and some experts in the medical field objected to the report cards, claiming the ratings were unfair to certain physicians or the data was inaccurate. Despite complaints, Consumer Reports stands behind the information ProPublica provided, indicating its value to consumers and to the public in identifying problem physicians who are harming patients.

The report cards of surgeons nationwide were complied by using data from Centers for Medicaid and Medicare Services (CMS). Researchers looked at records for eight common procedures performed, and looked at the rates of complications occurring among the different surgeons performing the procedures. Complication rates were adjusted based on patient age and patient health. Researchers looked both at the incidences of complications from particular surgeons and the number of procedures the surgeons performed.

The research showed 11 percent of surgeons were causing 25 percent of post-procedure complications. Many of the surgeons with high rates of problems actually performed surgical procedures at some of the best and most respected medical facilities and academic teaching hospitals in the country. One physician at Johns Hopkins, which is nationally recognized for its research on patient safety, had 10 times more complications when performing prostate removals compared with all colleagues combined. This was true even while colleagues performed nine times as many prostate removal surgeries.

Some of the lowest post-surgical complication rates occurred at small town clinics, where physicians personally handled all aspects of post-surgical follow-up care for patients.

While the report card data may be imperfect, patients should still consider conducting a search of their surgeon if they are considering undergoing surgery or if they are experiencing post-surgical complications. If you find your surgeon has a high rate of complications and problems, this could be an indicator complications are happening as a result of his medical negligence or repeated errors.

You should get your medical records reviewed by an independent professional who can help you determine if your surgeon’s mistakes caused you harm. If so, you can make a malpractice claim to recover damages for yourself and perhaps to prevent your physician from being one of the top causers of harm for other patients.

Jonathan C. Reiter NYC Injury Lawyer

New York City Personal Injury Lawyer / Aviation Accident Attorney