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.

The Grave Impact of Communication Failures in Hospitals

Communication failures in hospitals can have disastrous consequences. In fact, a new report states that poor communication among medical professionals may have resulted in 1,744 deaths.

According to a CRICO Strategies malpractice study, researchers examined 23,658 cases of malpractice between 2009 and 2013. That accounts for about one-third of all medical malpractice claims, according to CRICO Strategies, which conducts research and analysis for the company that insures Harvard-affiliated hospitals.

Communication failures played a role in 30 percent of the medical malpractice cases studied, according to an article in STAT news about the findings. These types of mistakes may have resulted in $1.7 billion in medical malpractice costs, according to the findings.

Here are examples of negligence resulting from poor communication, according to STAT news:

A nurse has information that a patient who just had an operation has signs of internal bleeding – severe abdominal pain and a drop in the level of red blood cells – but does not tell the surgeon. The patient later dies of a hemorrhage.
A diabetic patient makes numerous calls to a medical office, but the staff does not inform the primary care provider. The patient, who never gets a callback, later dies from diabetic ketoacidosis (a lack of insulin).
A woman giving birth through a cesarean section asks hospital staff she wants to have her tubes tied but the obstetrician on duty never gets this request. The woman later gets pregnant and files a malpractice claim.

Lives Can Be Lost When Doctors, Nurses and Other Professionals Fail to Communicate

The report’s co-author stated that the findings reflect problems in hospitals nationwide. Communication failures were reported among a variety of medical staff and between patients and medical staff.

In recent years, hospitals have shifted toward electronic medical records in part to improve the communication process, according to the report. However, this use of electronic records in some cases have led to communication failures.

Here are two examples cited in the STAT news report:

A woman’s lab test revealed she had cancer. The result went into an electronic health record, but was not flagged by her primary care provider. She was diagnosed a year after the lab result went into the system – a shockingly long delay.
A health care provider failed to mention to a lung doctor that lab results showed the patient may have had early congestive heart failure. The health care provider incorrectly assumed the lung doctor would see this in the electronic record. The patient died about nine days after his lungs filled with fluid.

According to the report, communication errors may be a result from any number of challenges in addition to electronic medical records. Other problems that factor into communication failures include overworked medical staff, hierarchical workplace cultures and numerous interruptions.

In the wake of this report, it’s critical for hospitals to take steps to address these problems and improve communication. Our experienced medical malpractice attorneys in New York City have represented many patients and families who have been devastated by hospital mistakes that never should have happened.

Our job as attorneys is to help victims and their families obtain the compensation they need. But we also know a successful case result can lead to positive changes at hospitals and doctor offices – improvements that benefit everyone.

If you or a loved one was harmed as a result of a communication failure or some other type of health care provider negligence, contact Jonathan C. Reiter Law Firm, PLLC. Call 212-736-0979.

Jonathan C. Reiter NYC Injury Lawyer

New York City Personal Injury Lawyer / Aviation Accident Attorney