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 as a Result of Anesthesia Provider

Anesthesia is so commonplace today, it’s hard to believe that what we now know as “modern anesthesia” has only been around since 1846, when a Boston dentist first used nitrous oxide gas to help alleviate a patient’s pain during a dental procedure. Prior to that, doctors were limited to primitive means of limiting pain, and most surgeons relied on speed instead of skill during surgery due to the lack of anesthetic. Anesthesia has come a long way since then, and doctors use it routinely during a wide range of surgical procedures.

However, anesthesia is still a potentially dangerous part of any medical procedure, and it requires a skilled, experienced, and competent doctor to administer it. Unfortunately, anesthesia mistakes can cause a patient to suffer catastrophic harm. In the most devastating cases, a patient dies due to an anesthesia provider’s negligence.

What Is Anesthesia?

An individual doesn’t need to be completely unconscious to experience medical malpractice as a result of an anesthesia provider. There are various forms of anesthesia, and a doctor’s mistake can occur with any one of them.

General Anesthesia – This is the type of anesthesia with which most people are familiar. When you undergo general anesthesia, you are completely unconscious. In most cases, the doctor must insert a breathing tube to help you keep breathing.

Regional Anesthesia – Regional anesthesia is used to numb a large area of the body, such as a spinal block or epidural anesthesia used during childbirth. When regional anesthesia is used, the patient retains consciousness.

Local Anesthesia – Local anesthesia anesthetizes a small section of the body, such as a limb where a patient is receiving sutures.

One survey of over 2,200 members of the Canadian Society of Anesthesiologists found that 30 percent of those doctors admitted to making at least one anesthesia error over the course of their practice. The journal Anesthesiology reports that “each year in the United States, anesthesia/anesthetics are reported as the underlying cause in approximately 34 deaths and contributing factors in another 281 deaths, with excess mortality risk in the elderly and men.”

How Do Anesthesia Mistakes Occur?

Anesthesia errors can happen in a number of ways. Research reveals that the most common type of anesthesia-related medical malpractice is the wrong drug dosage. However, there are numerous other mistakes that are known to occur when an anesthesiologist or nurse anesthetist makes a mistake.

Dosage Mistakes – Anesthesia drugs are extremely powerful. When a doctor gives a patient too much of an anesthesia drug, it can stop a patient’s heart or cause other emergency situations. Anesthesia dosage mistakes can occur when a doctor gives a patient the wrong amount of drug, or when a doctor mistakes one anesthesia drug for another. These types of errors can also happen when a doctor fails to check for drug allergies or drug interactions.

Intubation Injuries – The failure to intubate can cause a patient to suffocate or stop breathing. An improperly placed intubation tube can also cause major injuries or death.

Failure to Monitor – When a patient is under the influence of anesthesia drugs, it’s imperative for the anesthesiologist or other qualified health professional to monitor the patient’s heart rate and other vital signs. A failure to monitor can lead to a cascade of complications that result in serious injury or death.

Lack of Oxygen – It’s extremely important for a patient to receive adequate oxygen during sedation. A lack of oxygen can cause irreversible brain damage and even death.

Birth Injuries – Anesthesia plays a role in the majority of births, from epidurals placed during vaginal births, to spinal blocks used in cesarean section deliveries. Not only can mothers sustain serious injuries, such as nerve damage and paralysis, due to anesthesia mistakes, but anesthesia errors can also harm unborn babies. For example, a baby deprived of oxygen during the birthing process due to an anesthesia mistake can suffer a permanent brain injury.

Anesthesia Awareness – Anesthesia awareness is a condition in which a patient regains some level of consciousness during surgery. In many cases, a patient can’t speak or alert medical staff, but the patient can feel pain. This is a horrifying experience for patients that can leave them with lifelong emotional and physical pain and trauma. Some patients who experience anesthesia awareness also develop post-traumatic stress disorder that makes it difficult or impossible for them to seek medical help when they need it.

Post-Operative Complications – Anesthesia can also cause patients to suffer post-operative complications, such as pneumonia, bleeding, and post-operative pain. When these conditions are improperly or poorly managed, patients can sustain serious injuries. In some cases, patients pass away due to complications from anesthesia, such as pneumonia caused from lungs that never recover from intubation. Other patients experience life-threatening blood clots in their lungs or extremities due to mismanagement of their circulatory system while being anesthetized.

Anesthesiologist’s Liability for Medical Malpractice

Because many anesthesiologists and nurse anesthetists are independent contractors rather than employees of the hospitals and surgery centers in which they work, patients don’t always know how to pursue a medical malpractice lawsuit against them. Most jurisdictions also have narrow time limits in which patients are permitted to file a medical malpractice claim.

This is why it’s important for patients who suspect they’ve been a victim of medical malpractice as a result of an anesthesia provider to work with an experienced medical malpractice lawyer.

Sources:

Jonathan C. Reiter Law Firm, PLLC

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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

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