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.

5 Most Commonly Misdiagnosed Health Problems

New York City, NY – Top attorney, handles medical malpractice, wrongful death, doctor errors, bus accidents, MTA, airline injuries & death, and construction cases. Attorney Jonathan C. Reiter consistently delivers results.

Studies show that misdiagnoses are a leading cause of medical malpractice. Shockingly, a recent report states that as many as 12 million Americans may be the victim of a misdiagnosis at some point in their lives.

When a doctor misses an important symptom or diagnoses someone with the wrong condition, a patient can experience serious consequences. For example, the wrong medication can lead to escalating health problems. In other cases, a patient misses the opportunity to treat a disease in its early stages, forcing the patient to undergo more invasive or dangerous procedures down the road, or depriving them of an opportunity for a cure.

It’s possible for doctors to miss just about any health condition, but some are more likely to be misdiagnosed than others. Here are five of the most commonly misdiagnosed health problems that are leading causes of medical malpractice claims.

1. Heart Attacks

Because heart attacks can produce symptoms that appear in other health conditions, doctors can sometimes misdiagnose a heart attack as a less serious problem. The danger is that heart attacks can result in death very quickly if not treated promptly.

Experts say there is also a real danger of doctors dismissing heart attack symptoms in younger people, as they often assume that a young person’s chest pain is something minor like indigestion or anxiety. According to Everyday Health, doctors can also miss heart attacks in women, as women are less likely to experience typical heart attack symptoms, such as chest pain. Physicians have an obligation to make sure that a patient with chest pain is not suffering from a heart attack or other life threatening condition before diagnosing a less serious condition.

2. Cancer

The Journal of Clinical Oncology reports that doctors misdiagnose cancer about 28 percent of the time. For certain types of cancer, doctors fail to properly diagnose up to 44 percent of the time. Some cancers including lymphoma, breast cancer, sarcomas, and melanomas are more prone to misdiagnosis than others.

In some cases, doctors misdiagnose a patient by failing to gather enough information. In other cases, doctors are too busy and don’t give patients enough time to explain their symptoms and concerns. Doctors can also misdiagnose cancer because they don’t take the time necessary to put together a complete medical history for a patient.

3. Depression

While people don’t always think of depression as a “health condition,” it is, in fact, a potentially serious health problem as well as a top area of misdiagnosis. Experts say that diagnosing depression requires both a physical exam and a mental health evaluation and that doctors often miss one or the other when evaluating a patient. When doctors fail to diagnose depression or don’t take its symptoms seriously, they can put a patient at a higher risk of suicide.

4. Stroke

The American Heart Association says that young people are especially at risk of being misdiagnosed when they seek help for stroke symptoms. In many cases, doctors misdiagnose stroke patients with less serious health conditions, such as migraines, vertigo, or even too much alcohol. There is a narrow window of time for the emergency treatment of most types of stroke with “clotbuster” medication, so the failure to make the diagnosis in a timely fashion can lead to permanent paralysis, brain damage or death.

5. Celiac Disease

According to one expert, an astonishing 83 percent of people with celiac disease remain undiagnosed. Part of the reason why doctors misdiagnose celiac disease so often is the wide variety of symptoms it can produce. When doctors confuse these symptoms with other health problems, celiac disease patients can suffer for years without any relief.

Protecting Yourself Against Misdiagnosis

People see doctors because they want an expert’s opinion on their health. As a patient, there are several things you can do to protect yourself against misdiagnosis.

Ask questions – Don’t be afraid to question your doctor. Many people revere doctors and feel nervous about speaking up when they feel anxious or if something doesn’t seem quite right. When your health and perhaps even your life is on the line, it’s always acceptable to ask questions.
Get a second opinion – If you feel like your doctor isn’t providing adequate care, don’t hesitate to seek a second opinion, or maybe even a third opinion. Choosing a doctor you trust is especially important if you’re undergoing surgery, or if you suspect that you are suffering from a serious health condition.
Take your time – It’s an unfortunate reality that doctors typically have more patients than they can handle. However, a doctor shouldn’t rush you through your appointment. If your doctor seems too busy to give you the time of day, you can try simply asking him or her to slow down. Many doctors are busy and may not even realize how brisk they come across to patients. Sometimes, all it takes is a patient speaking up and requesting a little more time from their health care provider.

If you believe you have been misdiagnosed by a doctor in New York, you should contact an experienced NYC medical malpractice lawyer today. A delay could affect your ability to be fairly compensated in New York State. That’s why it’s critical you contact New York misdiagnosis attorney Jonathan C. Reiter as soon as possible.

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