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.

What Is Informed Consent for Medical Treatment?

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If you think you have been injured due to a doctor’s negligence, you might have jumped on the internet and started seeing the phrase “informed consent.” Some people may not be familiar with what this phrase means or the impact it could have on their case.

In a medical setting, informed consent means that doctors have a duty to tell their patients about any risks involved in a course of treatment or medical procedure. When a doctor fails to inform the patient about risks, and the patient suffers harm, the doctor may be liable for medical malpractice.

What Does Informed Consent Mean?

Few, if any, medical treatments or surgical procedures are entirely risk-free. Even something as routine as receiving a flu shot carries small but real risks, such as a bad reaction or an infection at the injection site. If you’ve had a procedure performed or you’ve received any kind of medical treatment, you may have received paperwork that explains the potential risks involved.

Whether a risk is large or negligible, doctors have an obligation to tell their patients the risks before undertaking any kind of treatment or procedure. Patients have a right to know the risks of any procedure to help them make educated decisions about their health care.

In many cases, doctors and hospitals may even require patients to sign paperwork stating they have been informed of the risks and have been given an opportunity to ask questions. Just because a patient signs a form, however, doesn’t necessarily mean they have given their consent. Doctors must actually talk to their patients about the risks, in addition to taking time to answer any questions a patient has about their procedure.

What Risks Are Doctors Required to Disclose?

Doctors are required by law to discuss certain types of risks with patients. The law has specific standards when it comes to determining what’s required for disclosure. When courts look at these types of cases, they consider two things: would other doctors in the same field have deemed the risks worthy of disclosure, and would the average, reasonable patient have opted for another type of procedure or treatment if they knew the risks?

First, courts consider what another doctor in the same specialty would have done under similar circumstances. If another doctor would have disclosed the risks, the courts will find that disclosure was necessary. This is an important consideration, as it’s impossible for doctors to discuss every unique thing that could possibly go wrong during a surgery or treatment

For example, a city in which a hospital is located could potentially lose power, cutting off electricity and preventing pieces of lifesaving medical equipment from working. However, there is a very small risk of this happening, and it’s not an event that usually merits disclosure. On the other hand, addressing a patient’s risk of a blood clot or anesthesia reaction is much more likely, and would be the type of risk the majority of doctors would disclose.

Additionally, courts look at whether a patient would have opted for a different procedure or treatment if they were fully informed of all the risks.

When Informed Consent Is Not Required

In certain emergency situations, a doctor may not have time to first obtain a patient’s consent before conducting a medical procedure or providing treatment. For example, if an ambulance brings an unconscious car accident victim to an emergency room, and the medical staff can’t get in touch with the patient’s family right away, the doctors working there won’t have an opportunity to obtain the patient’s consent before providing life-saving care.

According to the American Medical Association, doctors have an obligation to obtain informed consent as soon as they can following life-saving emergency treatment and before they continue their care. “In such situations, the physician should inform the patient or surrogate at the earliest opportunity and obtain consent for ongoing treatment in keeping with these guidelines.”

Other Issues with Informed Consent

In some cases, a patient may be able to file a medical malpractice claim for a breach of informed consent in the event a doctor operates on the wrong part of the body.

For example, if the patient gives informed consent for the doctor to operate on the patient’s right arm, but the doctor mistakenly operates on the left arm. The informed consent would have only applied to the patient’s right arm, which as a result could result in a medical malpractice claim for a lack of informed consent, among other legal theories. A patient may not have a claim for informed consent, however, in cases where the surgery or treatment was necessary and didn’t result in any harm.

If you were injured as the result of a medical procedure or treatment and were not made aware of the possible risks, you should speak to a medical malpractice lawyer at Jonathan C. Reiter Law Firm as soon as possible. You may be entitled to compensation for damages. Trust your case in the hands of the best medical malpractice attorney in New York City. Call NYC Attorney Jonathan C. Reiter at (212) 736-0979 today.

New York Medical Malpractice Attorney Jonathan C. Reiter

(T): 212-736-0979

Sources:

https://www.ama-assn.org/delivering-care/ethics/informed-consent

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