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.

Can I File a Medical Malpractice Claim If a Doctor or Hospital Discharged Me Too Early?

What Kinds of Risks Is a Doctor Required to Disclose

In some cases, a doctor or hospital may send a patient home before the patient is truly well enough to be without professional medical supervision.

Depending on the circumstances, a decision to send a patient home before they’re stable may rise to the level of medical malpractice.

If a doctor or hospital sent you home before you were well enough to be discharged, and you think you suffered an injury due to their decision to release you, you may be entitled to compensation for any injuries that resulted.

The Standard of Care in Medical Malpractice

In cases in which a patient believes their doctor or hospital sent them home before they were ready, one of the main questions in the case is likely to center on whether the doctor or hospital’s decision was in line with the accepted standard of care.

This means the jury will be asked to decide whether another doctor working in the same practice area would have made the same decision given similar circumstances. If a doctor under the same circumstances would not have sent a patient home, this means the treating doctor deviated from the standard of care, which can give rise to a claim for medical malpractice.

Or in the case of a hospital, would a similarly situated hospital have also sent a patient home if given the same circumstances? In some cases, a patient may believe they have a medical malpractice case because their doctor or hospital was forced to readmit them after previously sending them home.

While this can be an indicator of medical malpractice, this isn’t always the case. In a medical malpractice case, it must be proven that a patient’s early discharge led to injury or harm.

What Causes Doctors to Send Patients Home Too Early?

If you were discharged before you felt ready, you may be wondering why any hospital or doctor would send a patient home before they were well enough.

Unfortunately, there are a number of reasons why this can occur. In many cases, hospitals and emergency rooms are overcrowded. In an effort to free up beds, a hospital may decide to release a patient too soon. In other cases, hospitals may not have the staff they need to function efficiently. If a hospital is understaffed, it may choose to send patients home to free up the staff’s availability. Sometimes health insurance companies establish criteria for keeping or sending patients home from the hospital that the medical providers must adhere to if they want to get paid by the insurance company.

If a hospital or doctor sent you home before you were medically stable, you may have sustained various types of injury or harm. Additionally, your claim might involve a number of different factors, including:

A doctor’s failure to follow up with you
A doctor or hospital neglected to perform certain tests
A missed diagnosis or misdiagnosis
A doctor or hospital neglected to make sure you were medically stable

Proving Your Medical Malpractice Claim

Medical malpractice cases are different than other types of injury cases. In New York, the plaintiff must ordinarily elicit expert testimony from a medical expert who can testify that the doctor or hospital deviated from the accepted standard of care while providing treatment to the plaintiff.

Damages in Medical Malpractice Cases

A top-rated medical malpractice law firm will have the experience needed to let a patient know if he or she is entitled to compensation for being discharged early by a doctor or hospital. Damages may include compensation for medical expenses, any lost wages experienced as a result of medical malpractice, a loss in the ability to earn future income, and pain and suffering.

It’s possible for patients to be entitled to additional damages depending on the unique facts in the case. An experienced New York medical malpractice lawyer can evaluate your case and discuss your options.

How to Prevent Doctors from Sending Patients Home Too Early

When you are ill or recovering from a surgical procedure, it often leaves you in a vulnerable position. If a doctor or hospital decides to send you home before you feel ready, you may be unsure of your rights or what steps you can take to protect yourself.

If you encounter a situation where you feel like you’re not prepared to be discharged from medical care, it’s important to voice your concerns. Make sure you speak to your doctor in person and have another person present if possible. You should also ask the hospital to provide you with a copy of its policy regarding patient discharge rights.

If you believe you were sent home from the hospital too soon and suffered an injury as a result, you shouldn’t hesitate to contact a New York medical malpractice lawyer. A delay in filing your case could limit your right to receive compensation for your injuries.

Medical malpractice cases are complex, and there are time limits for filing a claim. Don’t wait to discuss your claim with a medical malpractice lawyer. Contact Attorney Jonathan C. Reiter at the top New York medical malpractice law firm today at (212) 736-0979 or schedule a free consultation.

New York Medical Malpractice Attorney Jonathan C. Reiter

(T): 212-736-0979

www.jcreiterlaw.com

Google Directions

Sources:

https://journals.lww.com/clinorthop/FullText/2009/02000/The_Expert_Witness_in_Medical_Malpractice.10.aspx

Jonathan C. Reiter NYC Injury Lawyer

New York City Personal Injury Lawyer / Aviation Accident Attorney