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.

ICU Medical Mistakes – Is Your Family Reluctant to Speak Up?

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Study Reports Families Don’t Speak Up About ICU Medical Mistakes by New York Medical Errors Lawyer

According to a study, described as the first of its kind, family members are reluctant to speak up when they witness medical mistakes and unsafe practices in hospital intensive care units.

The study, which was conducted by Beth Israel Deaconess Medical Center in Boston, surveyed a group of over 100 family members of ICU patients as well as more than 1,000 families online. Researchers asked study participants to share if they felt comfortable speaking up when they witnessed medical mistakes or unsafe practices, such as medication errors or health care personnel not washing their hands before treating a patient.

According to the survey results, family members overwhelming chose not to speak up when they saw errors or unsafe practices occur.

What Families Said About Medical Mistakes and Unsafe Conditions

According to news reports, families reported a variety of responses when asked if they raised concerns when they observed medical errors or unsafe conditions or practices in the ICU, where the most vulnerable and susceptible patients receive treatment in hospitals.

Over 50 Percent Expressed Hesitancy – Over half of the study’s respondents stated some reluctance to speak up. According to the study’s lead author, “One of the key take-home messages was that among patients and families currently experiencing an ICU stay, over half expressed some hesitancy to speak up about common ICU concerns, including a mistake in care.”

According to the study, families were hesitant to speak up about possible mistakes, mismatched care goals, conflicting or confusing information, and poor hand hygiene. Generally, older and female respondents were more likely to speak up when they saw something that concerned them. Also, people who had worked in the medical field or had a family member who had worked in medicine were also more likely to raise concerns than those with no personal or family medical background or connection.

One-third Said They Didn’t Want to Cause Trouble – Additionally, one-third of those surveyed said they didn’t speak up because they didn’t want to be labeled as a troublemaker by medical staff. People who fell into this group reported wanting to maintain a good relationship with the care providers treating their family member.
One-third Said the Medical Staff Was Too Busy – Another one-third of survey respondents said they didn’t feel comfortable speaking up because medical personnel seemed too busy.
One-third Said They Didn’t Know Whom to Tell – Additionally, one-third of the people researchers spoke to said they didn’t know how to raise their concerns or which medical team member to talk to about their worries.

Additionally, one-fifth of respondents said they didn’t want to seem like they didn’t understand medical concepts, and another one-fifth were afraid of harming their relationship with doctors or other members of the medical team treating their loved one.

Failure to Speak Up Can Lead to Bad Outcomes

Medical and legal experts say that failing to raise concerns about potential medical mistakes and unsafe practices can lead to bad outcomes, such as a patient injury or death. Because medical mistakes are the third-leading cause of death in the United States, it’s important for people to raise their concerns when they believe they have seen something inappropriate or possibly dangerous for a patient.

The report goes on to note that studies reveal that patients and family members are “often better than doctors and nurses at detecting errors, and they’re usually right about the errors that they report.”

Health experts say there are a couple of different reasons for this. For one, family members know the patient a lot better than the doctor or nurse providing care. They know what’s normal when it comes to the patient’s health, mood and state of mind. This familiarity gives them a unique insight when it comes to detecting an abnormal reaction to a medication or type of medical intervention.

Also, patients know their own bodies better than any doctor ever could. Many people are afraid to question a doctor, or they worry they will seem rude or uneducated if they do, but patient safety advocates say it’s important to raise concerns when something seems off or wrong. Doctors and nurses make mistakes just like anyone else, and heavy patient loads in hospitals and doctors’ offices can mean they miss things like the names of medications or the proper dosages for certain prescription drugs.

Health experts said one way for ICU staff to encourage patients and family members to speak up is by putting up posters that contain information about how and where to report concerns.

Hospitals can also train their staff to be responsive and receptive when patients and family members speak out about potential areas of concern. “Educational strategies should include both encouraging and supporting patients and families to voice concerns with clear steps and a genuine invitation, and preparing clinicians to respond meaningfully when patients speak up.”²

If you believe you or a loved one has been the victim of an ICU medical mistake, it’s in your best interest to talk to an experienced New York City medical malpractice lawyer.

Media Contact:

New York Medical Malpractice Law Office of Jonathan C. Reiter

350 5th Ave #6400

New York, NY 10118

T: 212-736-0979

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