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.

Insurers May Act in Bad Faith When Medical Mistakes and Surgical Errors Occur

Surgeons have medical malpractice insurance coverage in order to provide compensation to victims in cases where surgical errors occur. Malpractice insurance providers have multiple legal obligations, both to doctors who are their policyholders and to victims of surgical mistakes who seek compensation for losses. These insurers often end up negotiating with patients or their family members after serious injuries or deaths occur, and insurers must negotiate in good faith. This means following policy provisions, aiming to minimize personal financial loss to doctors, and treating those making claims fairly.

Unfortunately, insurance companies often fail to provide the compensation victims of surgical errors actually deserve. This can lead to patients and family members filing a civil lawsuit after an insurer either improperly denies responsibility for losses or refuses to settle a case for a reasonable amount of money based on the extent of loss. If the plaintiff goes to court and wins a judgment, the insurer is usually only obliged to pay for the damages up to policy limits. However, exceptions can occur in certain cases. One example is when an insurance company acts in bad faith.

Surgical Errors and Bad Faith Claims Against Malpractice Insurers

In one recent case reported by the Tribune, plaintiffs whose child was killed by medical negligence ended up suing physicians who had provided care. While the hospital and the ER doctors were represented by insurers who settled, one insurance company representing two involved caregivers was unable to negotiate a settlement offer the plaintiffs would accept.

Not only was the insurer unable to come to a settlement agreement, but evidence indicates the insurer deliberately misled the parents of the deceased child about the amount of money available to cover losses and failed to provide information to policyholders about a settlement offer which would have protected the physicians from personal financial loss. When a surgeon or other physician is clearly responsible for causing harm to patients and an opportunity arises to settle within policy limits, insurers generally should accept that offer, rather than putting the physicians at risk of a verdict which exceeds policy limits.

In this case, the parents of the deceased child did take their case to court when the insurer proved unwilling to settle the case. The parents were awarded compensation exceeding policy limits and the insurer paid only up to the amount of coverage available. The parents at this point had two options: seek to recover from the physicians personally, or pursue a bad faith claim against the insurer. They chose the later of the two options.

The jury reviewed the actions of the insurer and determined the insurance company had acted in bad faith. The parents were awarded $14.3 million in damages, including $1.3 million they were still owed from the original malpractice claim and $13 million in punitive damages as a result of the insurer’s bad faith.

The insurance company had been accused of bad faith 25 times over a decade. The case illustrates the egregious nature of insurers’ behavior when refusing to settle claims after care providers clearly make mistakes, as well as the potential compensation victims of medical error can be entitled to when they develop an effective legal strategy for pursuing a damage claim.

Jonathan C. Reiter NYC Injury Lawyer

New York City Personal Injury Lawyer / Aviation Accident Attorney