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.

Medical Malpractice – Can You Sue for Surgery Performed on the Wrong Body Part

手術部位出錯我可以提出訴訟嗎？(Can I sue for suffering from wrong-site surgery?)

When most people prepare to undergo surgery, they worry about things like taking time off work, having enough groceries in the house while they recover, and making sure someone is available to drive them home after their procedure. Typically, they don’t worry about waking up to discover their doctor performed surgery on the wrong body part.

However, reports state that doctors in the U.S. operate on the wrong body part an astounding 40 times per week. Sometimes called “wrong site” surgery, these types of medical errors are obviously life-changing for patients. In some cases, patients must immediately undergo another surgery on the correct body part. But what about cases in which a doctor actually removes an organ? What if a doctor amputates the wrong limb?

Tragically, these types of cases occur more often than many people realize, and they are devastating for the patients involved. According to one report, a hospital in Rhode Island operated on the wrong side of a patient’s head in three separate surgeries. One study found that wrong-site surgeries occur between 1,300 and 2,700 times every year in the United States.

Protecting Yourself Against Surgery Performed on the Wrong Body Part

Wrong-site surgery is something no one should ever have to think about, but health safety experts say it’s important to take steps to protect yourself from being a victim of this kind of medical mistake.

Talk to your doctor Health safety experts recommend speaking to your surgeon just before surgery and discussing the specifics of the procedure. You can even speak to the anesthesiologist immediately prior to surgery to make sure everyone is on the same page when it comes to the procedure being performed.

Confirm your procedure with nurses and medical staff A typical surgery involves a team of health professionals, from nurses and residents to surgical techs and an anesthesia team. If you get an opportunity to interact with the team taking care of you, confirm with them that they understand what type of surgery you’re having.

Ask about wrong-site surgeries in your hospital Patients have a right to know what kind of safety record a hospital or surgery center has. Don’t be afraid to ask for this information. Your health is too important to leave to chance. You should also ask about the hospital or surgery center’s credential and accreditation.

Your Legal Rights After a Wrong-Site Surgery

If you believe you have been the victim of a surgery performed on the wrong body part, you may be able to file a medical malpractice lawsuit. Medical mistake lawsuits are complex, and they can involve several possible defendants. In addition to the doctor, patients may be able to sue the nurses and other healthcare professionals who provided care. A patient may also have a case against the hospital or surgery center.

To establish a case for medical malpractice, a patient must be able to prove the basic elements of a claim.

There was a doctor-patient relationship The patient must be able to show that there was a doctor-patient relationship between the patient and the doctor or healthcare professional who acted negligently. For example, if your neighbor is an orthopedic surgeon and you ask him for some quick advice about your sprained wrist while you’re both getting your mail, you will probably have a difficult time showing that your neighbor was acting as your doctor.

The doctor was negligent The patient must also be able to prove that the doctor acted negligently while treating the patient. Doctors are held to a higher standard of care than the average person. A patient must be able to show that the doctor deviated from the accepted standard of care for a doctor in the same specialty area.

The negligence caused the injury The patient must also prove that the doctor’s negligence is the reason the patient was injured. If the patient didn’t suffer any kind of injury due to the doctor’s negligence, the patient’s medical malpractice claim won’t succeed.

The injury caused the patient to suffer damages The patient must show that the injury resulted in damages, which can include medical bills, lost wages, emotional distress, pain and suffering, and other types of damages.

It’s also important for individuals who have been injured by a doctor to act quickly to protect their legal rights. Most jurisdictions have strict rules for filing a medical malpractice claim, including a short statute of limitations.

A patient may also be required to obtain an affidavit of merit or similar document in which an expert — typically a doctor who practices in the same specialty — states that he or she believes the patient’s doctor deviated from the standard of care. Because medical mistake cases are so complicated, most patients choose to work with an experienced lawyer.

Sources:

Contributed by:

Jonathan C Reiter – New York City Medical Malpractice Lawyer specializing in medical negligence. To learn more about medical negligence and doctor errors Jonathan C Reiter has prepared a great NYC Medical Malpractice Infographic which you can download to learn more about this topic.

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Prior results cannot and do not guarantee or predict a similar outcome with respect to any future case. Recoveries always depend upon the facts and circumstances of each case, the injuries suffered, damages incurred, and the responsibility of those involved.

Jonathan C. Reiter NYC Injury Lawyer

New York City Personal Injury Lawyer / Aviation Accident Attorney