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.

Queens New York Medical Malpractice Lawyer – Malpractice in the Emergency Room

Queens New York Medical Malpractice Lawyer Explains Medical Malpractice in the Emergency Room Involving Stroke

According to the Centers for Disease Control and Prevention (CDC), there are 145.6 million emergency room visits in the United States each year. In most cases, emergency room personnel perform life-saving measures and invaluable care for those who need it.

Unfortunately, not every ER visit unfolds as expected. In certain situations, a patient may be injured due to a doctor’s negligence or a nurse’s mistake. In other cases, a hospital’s error may lead to a patient injury.

When a patient sustains injuries or harm due to a mistake in the emergency room, a person may feel overwhelmed and intimidated by the hospital staff or administrators. It’s normal for a patient to feel confused and anxious after receiving an incorrect diagnosis or below standard care in the ER.

Stroke Diagnosis in the Emergency Room

There are two basic types of “stroke. ” An “ischemic stroke” occurs when a blood clot or plaque blocks one of the arteries that feeds the brain. The clot can arise from a distant source, such as the heart or other blood vessel, in which case it is called an embolic stroke; or it can arise in an an artery in the brain itself. A hemorrhagic stroke occurs when a blood vessel in the brain bursts. Both types of strokes can cause serious disability and death.

When a patient is brought to an Emergency Room with the signs and symptoms of a possible stroke, time is of the essence in making the proper diagnosis and initiating treatment. It is important for the Emergency Room triage nurse to recognize the urgency of the situation and make sure that the patient is seen promptly by a physician. The physician must obtain a history from the patient (or family member etc.) as to when the symptoms first occurred. The next step is to obtain a CT scan of the brain to see whether there are signs of a hemorrhagic stroke, because hemorrhage typically shows up on a CT scan soon after it occurs. By contrast, in the event of an ischemic stroke, the CT scan may initially look normal, because the signs of ischemia have not yet become apparent. In that case, the physician must make the diagnosis of ischemic stroke based upon the patient’s signs, symptoms and physical examination.

Many major hospitals have a stroke team, composed of specially trained neurologists, interventional neuroradiologists, neurosurgeons and other personnel. Smaller hospitals may not have a stroke teams, but are still obliged to have a neurologist on call to the emergency room.

Treatment of Ischemic Stroke in the Emergency Room and Beyond

The most important treatment available for ischemic stroke is the drug tPA, also known as “clot buster”. This drug can be administered intravenously to a stroke victim within 4 hours from the onset of the stroke. This drug has revolutionized stoke treatment, because it can dissolve clots in the brain and restore blood flow, thus providing needed oxygen and nutrients to the affected area of the brain. Another treatment option is a procedure called thrombectomy, in which a specially trained neuroradiologist mechanically removes clot with special instruments. This procedure should be performed within 6 hours after onset of symptoms in the case of stroke in the front (anterior) part of the brain, and 12 hours in the case of stroke involving the back (posterior) part of the brain to obtain maximum benefit. This procedure can be combined with catheter delivered tPA, which puts the clot busting drug directly into the clotted artery. These specialized procedures need to be performed in the neuroradiology suite of the hospital. If they are not available in a smaller hospital, the patient needs to be promptly transferred to a major stroke center hospital. These procedures have the ability to reverse or reduce the adverse effects of ischemic stroke, prevent long term disability, and in many cases, to save the life of the patient. They are not indicated for treatment of a hemorrhagic stroke because they can make the hemorrhage worse.

If the hospital fails to properly diagnose the stroke, or fails to timely treat the patient with tPA, or fails to transfer the patient to a stroke center hospital for more advanced treatment, the hospital may be liable for medical malpractice in causing the patient’s death or serious disability. Time is critical in treating stroke, because the window for successful treatment is short. If the hospital is negligent and that window expires without the initiation of proper treatment, the hospital may be liable for malpractice.

Can a Hospital Emergency Room Turn a Patient Away?

Generally, hospital emergency rooms can’t refuse to treat a patient regardless of whether they have insurance or can afford to pay for their care. Under federal law, any hospital that is a recipient of Medicare money can’t refuse care.

If a hospital receives Medicare funds, it must care for a patient until the patient is stable enough to transfer to a different facility.

Queens Medical Malpractice Attorney Jonathan C. Reiter

(T): 212-736-0979

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Sources:

https://www.cdc.gov/nchs/fastats/emergency-department.htm

Jonathan C Reiter Law Firm