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 of Critical Conditions

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Delay or lack of care can be fatal

The human body presents itself and its ailments in a variety of ways, and many symptoms are consistent with more than one disease, leading to a misdiagnosed condition. Misdiagnosis can significantly affect the life and well-being of a patient. When a condition is wrongfully identified, it can result in the wrong treatment, and even a wrongful death.

A simple chest pain could mean congestion, or it could be a symptom of a heart attack. Fatigue and a high heart rate could be related to anxiety or signal a disorder of the autonomic nervous system.

At Jonathan C. Reiter Law Firm PLLC, we know misdiagnosis can result in rounds of expensive treatment, emotional distress, and possibly the development of another medical issue that wasn’t there in the first place. That’s why we’ve dedicated ourselves to representing victims of misdiagnosis and malpractice, helping them and their loved ones move forward from the catastrophic consequences of a misdiagnosed condition.

What are some common misdiagnoses?

When common symptoms present themselves, it’s possible to interpret them in a multitude of ways. In addition, many people express symptoms of certain conditions in different ways-this is especially true for women, as their symptoms of can be different from a man’s. Acute cardiovascular disease is one of the most commonly misdiagnosed medical issues, along with certain forms of cancer and other potentially fatal conditions, including the examples listed below.

No medical professional can be expected to diagnose with perfect accuracy, but doctors do have an obligation to follow standards of care when diagnosing patients. Doctors have an obligation to form a “differential diagnosis”, which is a list of possible conditions that could be causing the patient’s symptoms, and then rule in or rule out each suspect with further tests. Doctors need to rule out, or exclude the most potentially serious or deadly conditions first, even if those conditions are not the most probable suspects on the list. If a doctor mistakenly assumes that a patient’s symptoms are due to a common, non-emergency condition instead of a potentially fatal but less common condition, the patient may die in a short period of time. A physician who misinterprets results, fails to order medically indicated tests, or fails to appropriately refer a patient to a specialist for further evaluation may be held responsible for malpractice.

Pulmonary Embolism (PE)

A clot in the lungs can be deadly if misdiagnosed and left untreated. The clot often forms deep in the veins of the legs known as Deep Vein Thrombosis (DVT) and then travels to the lungs. Patients who are confined to bed after surgical procedures or passengers on long airplane flights are at particular risk for this condition. Lightheadedness, tachycardia, chest pain and shortness of breath often bring people into the emergency department, and their symptoms are sometimes misattributed to another cause.

In fact, a study showed that 1 in 3 patients with PE were misdiagnosed at first and sent home. An array of tests needs to be performed in order to properly diagnose a pulmonary embolism, and they must be done quickly. These potentially include x-rays, lung scans, CT scans, ultrasounds and pulmonary angiogram in order to find the clot and detect others. PE is often misdiagnosed as pneumonia, pleuritic pain, or a myocardial infarction instead of what it truly is: a deadly blood clot in the lungs that needs immediate treatment.

Aortic Dissection

This serious condition takes place within the inner layer of the aorta, which is a large blood vessel stemming out from the heart. When the inner layer tears, blood fills the space and forces the innermost and middle layers of aortic tissue apart. Fatalities often occur when the dissection cuts off blood to the coronary arteries, or the outermost layer breaks under extreme pressure.

This is not a common condition, usually affecting older men. Its symptoms can be mistaken for other conditions, which could cause a misdiagnosis, or fatal delay in diagnosis. Symptoms include shortness of breath, syncope (fainting), severe chest and back pain that feels like a ripping sensation, pulse abnormalities and one-side body paralysis. Those at high risk include patients with a history of high blood pressure, which puts strain on the aortic walls. If not diagnosed and treated properly, death could occur in a matter of minutes or hours.

Stroke

The leading cause of adult disability, a stroke can result in paralysis, loss of speech and loss of the ability to function independently. It also is a leading cause of death in the United States, which means that failure to diagnose a stroke properly could end a patient’s life. Symptoms commonly include:

Intense headache
Confusion
Loss of vision
Weakness in the limbs
Heaviness or paralysis on one side of the body
Difficulty processing and forming speech

If not diagnosed properly because the symptoms are confused with another condition, the patient could severely suffer. Brain damage, loss of motor skills and memory, inability to speak, and partial paralysis could all follow. Before a stroke takes place, an event called a Transient Ischemic Attack may occur; this is usually a warning sign, and one providers shouldn’t dismiss simply because they go away. Failure to assess the risk of a stroke puts the patient at serious risk of brain cell death and eventual permanent brain injury. Prompt treatment of a stroke with the clot busting drug tPA or interventional procedures to open clogged arteries in the brain can reverse or greatly ameliorate the effects of a stroke.

Contact us

If you or someone you know has been misdiagnosed or suffered a delay in their care, you need an experienced malpractice lawyer on your side every step of the way. Misdiagnosis, and delayed diagnosis can kill. Damage and death can be prevented through the proper medical care and attention that we expect. When doctors fail to provide that care, they need to be held accountable. Contact us for a free consultation about your potential case today.

Jonathan C. Reiter NYC Injury Lawyer

New York City Personal Injury Lawyer / Aviation Accident Attorney