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 Reasons Your Electronic Medical Records May Result in a Medical Malpractice Lawsuit

Doctors are not perfect, but when they are negligent and make medical mistakes, it can lead to misdiagnosis, serious injury or death. Electronic health records (EHRs) are now used by 90% of all doctors, hospitals and medical professionals. These EHRs are contributing to medical malpractice lawsuits. The number of lawsuits involving EHRs has tripled in the last 8 years. If you have suffered injuries due to a health provider’s negligence involving EHRs, you may have the right to receive compensation. The following are the 8 most common reasons your EHRs may cause medical malpractice by a doctor, nurse, or other health professional.

Design Flaws

Technology is not perfect, and EHRs often have technological or design flaws. However, sometimes the vendors of these EHRs will include clauses that release them from any liability; they attempt to put the full liability for any medical malpractice on physicians and medical professionals.

Incorrect Information

These are simply electronic devices and software. They are only as good as the information that they have stored inside of them. Oftentimes, there can be inaccurate or outdated patient information stored. If a doctor relies on incorrect or outdated information, then they may give the wrong medication or a wrong diagnosis.

Also, some of the voice-recognition software does not record and transcribe information perfectly. With incorrect or inaccurate data, a doctor can easily make a medical error.

Copy and Paste

Copy and paste errors are some of the most common errors leading to medical negligence. Doctors or nurses may erroneously copy and paste information from the last patient visit into the patient’s EHR. However, some information could have changed since the last appointment. These technology errors can cause medical malpractice by doctors.

Auto-populate

Similar to the copy and paste error, the medical fields of a patient may already be filled out. Medical history and physical or procedure notes could be auto-populated from older notes or even a template. In these cases, the auto-population could be incorrect, and not taken from the most recent medical information. Doctors need recent and accurate medical information to determine a medical condition. Without accurate medical history, there is a greater chance of medical malpractice.

Typos

It is hard to imagine that a simple typo could cause injury or death. When a nurse or doctor types a condition, medication, or test in an EHR incorrectly, however, it could lead to catastrophic injuries or death. Many medications and tests have very similar names. Any type of data-entry error could cause a patient record to be wrong. These mistakes rise to the level of medical negligence, even if the typo was seemingly insignificant.

Distraction

When a doctor or nurse has their eyes on their computer, their eyes are not on you. These electronic devices take away attention from the patient, which can result in misreading the patient’s symptoms. Also, patient interaction is very important. If a patient feels as if they are being ignored, they may not tell their entire medical issue. Distraction by such technology can cause the doctor-patient to be broken for this reason. Without giving full attention to a patient, a doctor may be negligent in prescribing the correct medicine or ordering appropriate tests.

Technology Burnout

Doctors are responsible for the information they provide to patients. The doctor-patient relationship is sacred. It is important that no matter what, the communication between a doctor and a patient remains open and understandable. Technology consumes much of a doctor’s time due to EHRs. With technology burnout, doctors are exhausted. Doctors are not paying attention in examination rooms, because they are looking at computer screens. The exhaustion caused by technology burnout leads to negligent errors.

The Type of Medical Practice

Some types of medical practices have more instances of medical malpractice due to EMRs. The top spot goes to family medical doctors. This may be because family medical doctors see many more patients, with a wide range of medical issues, which could lead to increased errors. The percentage of medical malpractice cases due to EMRs in different kinds of medical practices is listed below:

Family medicine: 8 percent
Internal medicine: 8 percent
Cardiology: 6 percent
Radiology: 6 percent
Obstetrics: 5 percent
Orthopedics: 5 percent
Nursing: 5 percent
Hospital medicine: 4 percent
Gynecology: 4 percent
Emergency medicine: 3 percent
Anesthesiology: 3 percent
Plastic surgery: 3 percent
Urology surgery: 3 percent
General surgery: 3 percent

Contact an Experienced Attorney Today

When there are errors in electronic medical records, patients can be seriously injured. In fact, statistics show that for medical errors due to EMRs, 25% of the injuries result in death. Other injuries include adverse reactions to medicines, a need for surgery, emotional trauma, an undiagnosed malignancy, organ damage, infections and more. If you were injured by your doctor or hospital, you may have a strong medical malpractice claim.

About the law firm:

Jonathan C. Reiter is a New York City Trial Lawyer with an impressive resume in the areas of medical malpractice lawsuits. A talented team of attorneys at Jonathan C. Reiter Law Firm, PLLC, has recovered more than $250 million for clients in the United States and around the world.

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New York Medical Malpractice Attorney

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