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.

8 Medical Mistakes You May Not Know About

Medical mistakes are unfortunately common. In fact, medical mistakes are now the third leading cause of death in the United States. Each year, over 250,000 people die due to an error by a hospital, doctor, or other medical professional.

When many people think of a medical mistake, they imagine something like a doctor leaving a sponge or instrument behind in a patient’s body during surgery, or a surgeon operating on the wrong limb or part of the body. These medical mistakes are horrifying and serious, and they definitely happen. However, these are not the only types of medical mistakes that occur.

Medical mistakes can take many forms, and it’s important for patients to be aware of the various types of medical errors. You have a right to expect high-quality, competent care from your doctor, hospital, and healthcare professionals, says Medical Medical Errors Lawyer.

Losing a Wandering Patient

According to the Alzheimer’s Association, over 60 percent of Alzheimer’s patients are prone to wandering. “… if a person [with Alzheimer’s] is not found within 24 hours, up to half of the individuals who wander will suffer serious injury or death.”

Unfortunately, there have been cases in which a nursing home or hospital lost track of a patient with Alzheimer’s or dementia. When this type of error leads to an injury or death, it is a serious and legally actionable matter.

Negligent Discharge from the Hospital

Many hospitals are understaffed and underfunded. Sometimes, in an effort to make room for new patients, hospitals discharge patients far too soon—or without making sure the person has a responsible person to see them home safely.

The Washington Post reported that a Baltimore hospital discharged a woman in subzero temperatures in January 2018 wearing nothing but a hospital gown. A passerby caught the incident on video and alerted emergency workers because the woman seemed woozy and disoriented.

Toxic Organ Transplants

An organ transplant can be a life-saving procedure. However, there have been cases in which a patient received an organ that was infected with a disease prior to transplant. In one shocking case, a man died from rabies after receiving a kidney infected with the disease. Following his death, the Centers for Disease Control and Prevention (CDC) announced that three other patients had also received organs from the same donor and had to be given anti-rabies medication.

Blood Transfusion Mistakes

Blood transfusions are another life-saving procedure that can help people recover from major blood loss. However, it is critical for health professionals to ensure that the blood type is a correct match. Blood transfusion mismatches can lead to a cascade of health problems, including death. According to one report, “Two large studies from New York State estimated the risk of erroneous administration of blood product at 1 per 12,000 to 19,000 units (U) transfused.”

Radiation Overexposure

An NBC News report states: “Americans get the most medical radiation in the world, even more than folks in other rich countries. The U.S. accounts for half of the most advanced procedures that use radiation, and the average American’s dose has grown sixfold over the last couple of decades.”

This is problematic, as radiation increases a person’s risk of developing cancer. One doctor who spoke in the report said he was “horrified” to learn that a teenager he treated had already received 14 powerful x-rays to check for kidney stones.

Surgical Fires

When you go to the hospital for a surgery, you probably don’t worry about a fire breaking out in the operating room. However, the Food and Drug Administration (FDA) states that about 550 to 650 surgical fires occur in U.S. operating rooms every year. The use of surgical lasers has caused the number of these fires to increase. Patients can suffer serious burns and other injuries.

Medical Tubing Mistakes

When a patient is admitted to the hospital, it’s quite common for them to be hooked up to a number of monitors and machines. Keeping all of this tubing straight is an important task. Unfortunately, mix-ups can happen. One report states that a pregnant woman had her feeding tube mistakenly connected to her bloodstream, which caused her death. A study revealed that at least 21 patients had died and 100 others had been injured due to mistakes involving medical tubing.

Long ER Wait Times

Unfortunately, stories about patients dying in the emergency room waiting area have become all too common. In many cases, these deaths are caught on hospital surveillance camera, which is devastating for surviving family members to see. Hospital emergency rooms can be busy places, but this is never an excuse to keep a critically ill patient waiting to receive what can be life-saving care and treatment.

By: New York City Medical Malpractice Lawyer Jonathan C Reiter Law Office

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Prior results cannot and do not guarantee or predict a similar outcome with respect to any future case. Recoveries always depend upon the facts and circumstances of each case, the injuries suffered, damages incurred, and the responsibility of those involved.

Sources:

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