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 Errors: The Third Leading Cause Of Death

Imagine visiting a doctor or checking into a hospital and then dying because of a mistake. It’s a terrible and unsettling thought, but it’s also a very real risk for many Americans.

According to a study from BMJ, released May 3, 2016, medical error ranks as the third-leading cause of death, after heart disease and cancer. While pinpointing the exact number of medical error deaths is difficult, estimates range from 210,000 to 400,000 a year, according to the BMJ study.

Researchers from Johns Hopkins University School of Medicine in Baltimore said U.S. death certificates currently are not set up to acknowledge medical error as a cause of death. The Centers for Disease Control and Prevention does not list “medical errors” as an official cause of death because the agency bases its findings on death certificates.

As a result, researchers suggested that accurate data on deaths linked to medical errors is lacking.

In a report about the study, The New York Times used an example in which a patient received a poorly performed diagnostic test that caused a liver injury. The patient then went into cardiac arrest. The cause of death was ultimately listed as cardiovascular, and not medical malpractice.

The study’s authors, Martin Makary and Michael Daniel, call for better reporting to help understand the scale of the crisis and determine how to address it. In their analysis, Makary and Daniel were able to break down data in different studies going back to 1999 to calculate a mean rate of death from medical error per year. They concluded that 251,454 die each year because of medical mistakes.

Makary and Daniel say that number may be low. The studies they examined only considered mistakes that could be documented in health records. The studies also only listed deaths that occurred in hospitals.

But even if it’s a low-ball estimate, the figure is higher than the number of people who died in accidents. It’s higher than the number of people who died from stroke, chronic respiratory disease and a long list of other potentially fatal conditions.

What Is A ‘Medical Error?’

Defined by the researchers as “any health care intervention that causes a preventable death,” medical error includes a range of mistakes, from surgeons removing the wrong body parts or leaving medical equipment inside the patient’s body to nurses giving a patient the wrong drug.

In an interview with the Washington Post, lead researcher Martin Makary, a professor of surgery at Johns Hopkins University School of Medicine, said miscommunication or a lack of communication also is to blame. For example, a department receiving a patient from another department might also receive wrong information about the patient or inadequate information, which can have grave consequences.

In other cases, a doctor, nurse or other professional assisting a patient might not be to blame. Mistakes sometimes are linked to faulty computer programs, according to an article in the Los Angeles Times.

If you suspect a loved one died because of a medical error, you need an experienced attorney who can help you thoroughly investigate and discover exactly what happened. An attorney can obtain medical and hospital records for you, and have them reviewed by a qualified expert to determine whether there was malpractice that contributed to the patient’s death. New York medical malpractice attorney Jonathan C. Reiter can guide you and hold the negligent healthcare provider accountable.

He has a track record of success, having secured millions of dollars in settlements and verdicts on behalf of clients.

Jonathan C. Reiter NYC Injury Lawyer

New York City Personal Injury Lawyer / Aviation Accident Attorney