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.

Proving Medical Malpractice in New York

Medical Malpractice-What You Need to Prove Your Claim - Jonathan C. Reiter

Table of Contents

How are medical malpractice cases proven?

Medical malpractice isn’t something that just happens in movies, and in fact, according to a recent study, there were 19.3 malpractice claims per 100,000 people in New York in 2015 with a total payout of more than $711 million. (1)

Although the state of New York ranked 30th in the number of malpractice suits per 100,000 people in 2015, it ranked first in the amount of money paid out due to these claims.

Clearly, malpractice suits are an undeniable aspect of the health care system, but they are also misunderstood.

It’s important for patients and their families to have a clear understanding of how medical malpractice is legally defined, and the type of evidence necessary to meet the burden of proof in these types of claims.

Defining Medical Malpractice

Defining medical malpractice is important because without knowing the legal standards that apply to these cases, it’s impossible to know if a doctor can be held legally responsible.

Medical malpractice occurs when a doctor, nurse or another type of healthcare professional, harms or injures a patient due to negligence, either by doing something that should not have been done, or by failing to do something necessary for the patient.

In New York, a legal complaint for medical malpractice must ordinarily be accompanied by a certificate of merit signed by the medical malpractice attorney certifying that an independent physician has reviewed the medical records and found that there is reasonable cause to believe that the professional accused of malpractice deviated from the standards of care applicable to that type of case.

Those standards include showing that the physician or health care professional had a duty of care to the patient, violated that duty of care through some act or omission, and that the physician’s conduct fell below what a reasonable and prudent physician would have done under the circumstances.

Types of Medical Malpractice

Some of the most common types of medical malpractice in NYC include:

Misdiagnosis – This refers to a number of different things, including failing to order a test, failing to screen for a specific disease or ailment, failing to have patients consult with specialists, or failing to ask patients about their symptoms.
Surgical Negligence – This refers to any type of error during a surgical procedure that causes harm or injury to the patient. One of the most common types of surgical errors occurs when a surgeon operates on the wrong side of a patient’s body.
Medication Error – This refers to a doctor or medical professional that prescribes the wrong medication to a patient, tells a patient to take a higher dosage than is recommended, or fails to recognize the possibility of a dangerous interaction with another drug.
Childbirth Injuries – This refers to injuries that a doctor causes during the delivery of a newborn, including brain injuries and fractured bones.

What is Medical Malpractice Evidence in New York

In order to prove negligence, claimants must provide medical malpractice evidence that would meet the legal standard, including:

Establish that there was a relationship between doctor and patient.

Provide evidence that shows the doctor did not act with reasonable care. The plaintiff must ordinarily elicit expert testimony from a physician in that same area of practice that the defendant departed from accepted standards of care.
Provide evidence that shows that the doctor’s negligence caused some injury to the patient, or caused the patient’s death. In cases of delayed diagnosis or misdiagnosis, there must be proof that the delay in rendering the proper diagnosis and treatment caused the patient to be deprived of a better chance of cure. This issue comes up frequently in cancer cases, where it may be contested by the defendant as to whether the misdiagnosis permitted the cancer to spread, get worse and result in the patient having to undergo more extensive treatment or the patient suffering a worse prognosis, or causing the patient’s death.

It’s worth noting that some medical malpractice laws have gotten tighter over the past few years. While many states have established “caps” on the amount of money juries can award a claimant, New York is not one of those states and therefore has no cap on damage awards.

It is important to remember that in New York claimants must ordinarily file a suit within two years and six months of the time the act occurred or the last date of continuous treatment by the physician. In cases of cancer misdiagnosis, New York recently enacted a “discovery” rule that permits the filing of the lawsuit within 2 and ½ years from the discovery of the misdiagnosis.

The Role of a Medical Malpractice Lawyer in the New York

Being the victim of Medical Malpractice is not something anyone is prepared to handle alone. Victims have the right to seek compensation for injuries, and hiring an experienced NYC medical malpractice attorney is the first step toward justice.

Media Contact:

New York City Medical Malpractice Lawyer Jonathan C. Reiter. T: 212-736-0979

www.jcreiterlaw.com

Sources:

https://www.beckershospitalreview.com/hospital-physician-relationships/a-state-by-state-breakdown-of-medical-malpractice-suits.html

***ATTORNEY ADVERTISING***

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