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.

Misdiagnosis Is a Common Form of Medical Malpractice

Misdiagnosis is a common form of medical malpractice. In fact, almost 20 percent of patients say they have received a misdiagnosis at some point in their lives. Misdiagnoses can take a variety of forms, including misinterpreted lab results, a doctor’s failure to prescribe the correct treatment, a doctor treating a patient for the wrong illness, and more.

If you believe you have been a victim of misdiagnosis, it’s important to speak to a New York City medical malpractice lawyer as soon as possible. There are time limits for filing a claim, so you shouldn’t delay speaking to an experienced lawyer.

Doctors Have a Duty to Diagnose

Any time a patient visits a doctor, the doctor has a legal duty to adhere to generally accepted medical standards and procedures. This means doctors should follow the generally accepted procedures and protocols with respect to identifying an illness, verifying the illness, and diagnosing it.

To do this, doctors will usually go through a multi-step process that includes talking with the patient about their family history, their own medical history, and their symptoms. Doctors will also conduct a physical example and order any diagnostic tests that can help identify the illness.

Missing any of these steps can result in a misdiagnosis. For example, if a doctor fails to ask about a patient’s family history, they might miss something important in the patient’s genetics, causing the doctor to overlook a potential disease. Similarly, if a doctor fails to order certain tests, they might misdiagnose the illness as something different.

In some cases, doctors misdiagnose a patient because they make assumptions about the types of conditions a patient might have based on the person’s gender or age. For example, the patient might be presenting with symptoms that indicate a type of cancer that usually only appears in older patients, but the doctor might dismiss those symptoms if the patient is a younger person. These types of assumptions can lead to a misdiagnosis that causes harm to the patient.

Common Reasons Why Doctors Misdiagnose Patients

There are numerous reasons why a doctor might misdiagnose a patient. Some of the more common reasons include the following:

Not spending enough time with the patient – Many doctors see a lot of patients throughout the day. Unfortunately, it’s common for patients to feel like the doctor rushes into the exam room, spends a couple minutes, and then leaves, making the patient feel as though their concerns were dismissed or ignored. When doctors hurry through an appointment, they can miss important information, which causes them to misdiagnose a patient.
Failure to obtain a full patient history – In some cases, doctors fail to thoroughly review and capture the patient’s complete medical history. Patients might not know what kinds of information are important, which is why it’s up to the doctor to ask the right questions. Failure to do so can lead to a misdiagnosis.
Misinterpreting lab results or misreading test results – Doctors can misdiagnose when they misinterpret or misread a lab or test result. In some cases, a doctor should send a test or lab result to a specialist, such as a radiologist. When doctors fail to follow up with a specialist, this can lead to a patient’s misdiagnosis.

Failure to follow up – When doctors fail to follow up with a patient who sought treatment for certain symptoms, this can lead to a misdiagnosis. In many cases, a doctor will prescribe a certain treatment, which can cause a condition to resolve. However, in some cases the treatment doesn’t work, and the condition persists or gets worse. If the doctor fails to follow up with the patient, they can miss serious health problems.

Failure to refer to a specialist – There are many different kinds of medical specialties. For example, you wouldn’t see an orthopedic surgeon for a cardiovascular problem, as one doctor treats issues with the bones and the other specializes in heart conditions. When a doctor tries to treat a patient outside his or her area of practice, this can lead to misdiagnosis.

This is not an exhaustive list of ways a doctor can misdiagnose a patient. Just as every individual’s health is unique, cases of misdiagnosis and medical malpractice vary from person to person. This is why it’s important to discuss your unique case with a medical malpractice lawyer.

Do You Have a Case for Misdiagnosis?

To have a claim for medical malpractice, which includes misdiagnosis, your case must meet four elements.

There was a doctor and patient relationship – To have a claim for misdiagnosis, the doctor must have been your doctor and you must have been their patient. For example, if you asked a doctor friend about your sore ankle at a neighborhood barbeque and the friend wasn’t your actual doctor, you don’t have a claim for medical malpractice against that friend because they weren’t treating you.
The doctor deviated from the standard of care – While treating you, the doctor failed to follow generally accepted medical procedures in their practice area and region of practice.
The breach of the duty of care led to a misdiagnosis – Because the doctor breached their duty of care, this caused you to be misdiagnosed.
The patient suffered damages because of the doctor’s negligence – To have a claim for medical malpractice, you must suffer damages. If you didn’t actually sustain any damages due to the misdiagnosis, you can’t bring a claim for medical malpractice.

It’s not just doctors who can be held liable for medical malpractice. If you have been the victim of medical malpractice in the form of a misdiagnosis, you may have a claim against a doctor, nurse, hospital, chiropractor, physician’s assistant, or other health care professional or facility.

For example, if you visited an urgent care because you were experiencing chest pain and a nurse practitioner misdiagnosed you as having pneumonia, you may have a claim for medical malpractice and, specifically, misdiagnosis.

What Are Some Commonly Misdiagnosed Diseases?

While any health condition can be misdiagnosed, some conditions are misdiagnosed more than others. In many cases, this is because the condition shares symptoms with a different condition. Some of the most frequently missed and misdiagnosed illnesses include:

Cancer
Heart attack
Stroke
Pulmonary embolism
Lyme disease
Surgical injuries
Post-surgical infections
Glaucoma, retinal detachment and other eye diseases

Most of these illnesses and diseases show symptoms that are also associated with less serious illnesses. For example, the chest pain people often exhibit with a heart attack might also occur with gastro-intestinal reflux disease (GERD) or “heartburn” from spicy food, so it is important that doctors make sure you do not have a serious life-threatening condition before they diagnose a less serious, although more common condition.

Unfortunately, some patients may get turned away from medical treatment or even told they are imagining things or making up symptoms. When this happens, it can put a patient’s health and even life in danger. It can also result in the patient experiencing unnecessary pain and a diminished quality of life.

What If a Doctor Treats You for a Condition You Never Had?

One form of misdiagnosis involves a doctor treating a patient for a disease or illness they never actually had. For example, a doctor may diagnose a patient with cancer, which results in the patient going through chemotherapy, radiation, and other aggressive treatments. The patient may even have life-changing surgery, such as a patient who had prostate surgery that left him impotent only to later discovery that he never had prostate cancer.

In these cases, a patient may be entitled to damages for the damages they suffered, which often includes pain and suffering, mental anguish, loss of enjoyment of life, medical bills, and future earning potential.

How Much Is My Misdiagnosis Claim Worth?

No medical malpractice lawyer can predict in advance how much your medical malpractice claim is worth. However, an experienced medical malpractice lawyer can review your claim and your damages and give you an estimate of what you might expect to receive if you prevail on your claim.

One factor to consider is that medical malpractice claims frequently require expert testimony in the form of medical professionals who must review your treatment records and how the doctor treated your condition. This is because part of establishing a medical malpractice claim involves proving that your doctor deviated from the standard of care. Expert testimony is an additional cost, which is why litigating medical malpractice claims can get quite expensive.

The damages a patient can expect to receive varies from person to person, but here are some common damages you will see in medical malpractice cases:

Pain, suffering and mental anguish
Physicians’ bills
Medical equipment bills
Patient’s lost wages
Emergency room bills
Hospital bills
Home nursing services
Household services, including cleaning
Loss of companionship of a spouse
Loss of enjoyment of life
Lost wages
Loss of future earnings

The point of damages in a medical malpractice case is to restore, as much as possible, the patient to their state before the misdiagnosis occurred. Obviously, courts know it’s impossible to erase what happened or to ever fully put someone back the way they were before. However, monetary compensation can help ease the burden of medical bills, lost wages, and other expenses a patient shouldn’t have to pay.

Discuss Your Case with a NYC Medical Malpractice Misdiagnosis Lawyer

If you or a loved one has been misdiagnosed by a doctor, hospital, or health professional, you may have a claim for medical malpractice. Because there are strict time limits for filing a claim, you should discuss your case with a New York City medical malpractice and medical misdiagnosis lawyer as soon as possible. An experienced lawyer can review your claim and help you determine the next steps in your case.

Sources:

https://www.healthline.com/health-news/many-people-experience-getting-misdiagnosed#:~:text=In%20the%20United%20States%2C%2012,more%20likely%20to%20be%20misdiagnosed.

Jonathan C Reiter Law Firm