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.

Doctors Misdiagnose These 5 Diseases the Most

When doctors fail to properly identify a disease or health problem, patients can experience life-threatening symptoms later on. In some cases, a disease progresses unchecked, spreading when it might have otherwise been contained if treated promptly. In the worst scenario, a patient may lose his/her life due to a doctor’s misdiagnosis or delayed diagnosis.

According to a report from the Institute of Medicine, 1 in 20 adults in the United States each year seeks out urgent or outpatient care for a medical issue that is misdiagnosed. Over the course of their lifetime, the majority of Americans will receive some kind of incorrect or delayed diagnosis. This is a contributing factor in approximately 10 percent of all patient deaths.

When a patient is misdiagnosed or a doctor fails to diagnose a health condition or disease, a patient may go without potentially life-saving treatment. When doctors mistake one health condition for another, the patient may also receive treatment that is not actually needed. This can cause a patient to receive unnecessary and potentially harmful medications and/or procedures.

Top 5 Most Commonly Misdiagnosed Diseases in the United States

Tragically, some diseases and health conditions are misdiagnosed or simply missed on a regular basis. Here are the top five misdiagnosed health conditions in the United States.

1. Heart Attacks

Most people are familiar with the common symptoms of a heart attack. These symptoms can include chest pain that may shoot down the left arm as well as shortness of breath and dizziness.

However, other health conditions can also mimic these symptoms, leading doctors to miss the signs of a heart attack. For example, a doctor might misdiagnose a heart attack as a gastrointestinal condition such as gastrointestinal reflux disease, commonly referred to as heartburn. This mistake is especially common in patients who are younger. Because heart attacks tend to occur in older adults, some doctors may dismiss a younger patient’s symptoms because they don’t believe someone that young could suffer a heart attack.

According to a study published by Diagnosis, patients who are young as well as patients who are African American have the highest rate of missed heart attack diagnosis.

2. Cancer

Certain types of cancer make up 10 percent of all doctor-reported missed diagnoses in the Journal of the American Medical Association. Because doctor-reported numbers are likely to carry bias, it’s possible that the actual number of missed cancer diagnoses is somewhat higher.

Among all cancers, lung, breast, and colorectal cancers are the ones doctors miss most often. In the majority of cases, doctors missed these cancers because they delayed sending the patient for a biopsy after a screening returned an abnormal result.

3. Pulmonary Embolism

A pulmonary embolism happens when a patient forms a blood clot – typically in one or both legs that then travels to the lungs. In a study published by the Journal of the American Medical Association, 4.5 percent of all diagnostic mistakes involved pulmonary embolism. Pulmonary embolism is a particular worry after surgery or any prolonged period of immobility. Pulmonary embolism is a potentially fatal event and needs to be treated on an urgent basis.

4. Drug Overdose

In a study from the Journal of the American Medical Association, diagnostic errors involving drug overdoses accounted for 4.5 percent of missed diagnoses. In most cases, the drugs involved included prescription painkillers such as Vicodin and Percocet.

The report stated that many of these patients tended to be older and have a number of ongoing, long-term health conditions, which could cause doctors to overlook drug overdose as a potential cause of their condition. However, drug overdose is a growing problem, with opioid overdoses quadrupling since 1999.

5. Stroke

According to the BMJ Journal, about 9 percent of patients with stroke are misdiagnosed. The signs of a stroke vary and can often look like a different health problem. Patients may report feeling confused, dizzy, or experiencing a sudden lack of coordination. They may also suffer problems with their ability to speak clearly.

Talk to a NYC Medical Malpractice Lawyer About Your Misdiagnosis Case

If you have experienced a delayed diagnosis, failure to diagnose, or misdiagnosis due to a doctor’s medical mistake, it’s important to speak to a New York City medical malpractice lawyer right away. You may be able to obtain compensation for your losses, including medical expenses, pain and suffering, future medical costs, lost wages and lost earning potential.

Sources:

https://www.foxnews.com/health/the-3-cancers-doctors-miss-most-plus-4-other-commonly-misdiagnosed-conditions

Jonathan C Reiter Law Firm