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.

Healthcare’s Patient Misidentification Crisis

Patient misidentification is far too prevalent in our healthcare system, a silent crisis that can maim or kill. It’s preventable, another treatable condition that can be tended to with the right amount of attention from doctors and nursing staff.

According to a 2016 National Patient Misidentification Report of nurses, physicians and practitioners within IT, the frequency of such troubling events was surveyed in an effort to determine some of the root causes of a devastating problem within the medical field. Misidentification at registration, such as “incorrect armband placement” was determined to be the top leading cause of identification errors, ranking to account for 63% of them within the survey. Pressure to work under time-sensitive conditions when treating patients, especially in a busy facility, fell closely behind that statistic to account for 60% of the misidentifications reported.

What happens to the patients caught in this identity crisis? The impact of these errors can’t be measured in percentages when emotional stress, financial hardship, and possible trauma are involved. No one should leave a medical facility in more pain than they were in to begin with. As it stands, 7-10% of patients are misidentified during record searches alone, leaving them in the hands of unpredictable care. To make things more worrisome, the same survey reported that 86% of respondents had known of a medical error due to wrong-patient events.

Why do doctors misidentify patients?

“Wrong patient events” are preventable cases of mistaken patient identity. While not done on purpose, this error can lead to catastrophic consequences for those who have to suffer it. At the start of every visit, a patient’s identity should be verified-their name, birthdate, and last four digits of their phone number are commonly used identifiers. Even with these, a patient’s identity cannot be assumed to be 100% verified. That’s why it’s so critical that medical providers take all appropriate steps to verify the patient’s identity.

Patients can be anxious, or suffering from shock, delirium, or a mental illness that impairs their cognitive ability to successfully identify themselves. Such a case happened to a 28 year old patient awaiting ambulatory surgery; the nurse verbally confirmed her name, and even the type of surgery she was scheduled to have – according to the nurse’s chart, which turned out to be erroneous. In fact, the error wasn’t caught until she was on the operating room table where an anesthetist checked her wristband and immediately brought attention to the mistake. Despite answering positively to all questions directed towards her, anxiety had rendered this patient unable to be fully mentally present. This near-catastrophic error could have been prevented if the nurse had simply checked the patient’s wristband.

Nurses aren’t the only ones at risk to succumbing to a dangerous lack of attention to detail.
The ECRI (Emergency Care Research Institute) Institute has released reports on patient misidentification, including chilling statistics and the conclusion that “…anyone on the patient’s healthcare team can make an identification error, including physicians, nurses, lab technicians, pharmacists, and transporters.” The Patient Safety Organization partnered in this study in the attempts to pinpoint where exactly these errors began.

3% of wrong patient events took place during actual patient encounters
6% took place during the intake process
Over half of wrong-patient events involved diagnostic procedures or treatment associated with them
Two patient deaths involved were associated with documentation failures, including one that gave clearance for surgery on the wrong patient.

“The risk for patient errors is ever-present,” says the ECRI’s executive director. It’s so present that the numbers seem almost too low. Under-reporting patient errors and not disclosing them to patients is still an issue for the world of healthcare, which means that we may not have a clear idea of how many more cases there really are. Biometric solutions have been proposed to be a solution to consider, such as Imprivata’s PatientSecure system that utilizes palm vein recognition to identify patients, but their implementation has no guaranteed launch date.

What happens to the patient?

When the right procedure is performed on the wrong patient, the malady that ensues has effects on more than one party. Depending on the procedure performed, consequences can range from mislabeled blood samples to injecting IV contrast into a patient with an allergy.

In one of the more severe cases, a surgeon removed a kidney from the wrong patient due to an instance in which two patients had the same name. A CT scan had showed a tumor on the left kidney, which was removed and discovered to be tumor-free upon examination by a pathologist.

In another case, a non-English speaking patient was confused with another who bore the same name and similar birth date. Results from his CT scan that indicated cancer were sent to the second patient’s doctor, who only caught the mistake as he was about to go through a second biopsy.

35 percent of denied hospital claims involve inaccurate patient identification, which puts the patient at risk of having to pay for some of the treatment that they shouldn’t have undergone in the first place. Depending on the event, a physical recovery period may be needed, which would result in lost wages. In too many cases, an entirely preventable medical error leaves patients with permanent scars and other irreversible damage.

Our law firm holds negligent medical providers accountable.

Medical malpractice needs to be handled by someone with experience and compassion. The Jonathan C. Reiter Law Firm, PLLC is dedicated to an individualized approach to cases where clients are victims of negligence and preventable events. They may feel silenced, but patients have a voice they may not realize still exists. If you or a loved one has been misidentified and subsequently injured, contact our firm immediately for a free case evaluation.

Jonathan C. Reiter NYC Injury Lawyer

New York City Personal Injury Lawyer / Aviation Accident Attorney