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.

Surgical Mistakes Often Kept Secret By Hospitals and Care Providers

The public deserves to know when medical care providers and hospitals make mistakes resulting in patient harm. Unfortunately, many malpractice settlements come with confidentiality agreements preventing injured patients from speaking out about their stories. Patients do not learn how frequently surgical errors occur as a result of these confidential settlements, which means patients cannot make informed choices about where to get a procedure done. Patients are also kept in the dark about all of the risks they face when a particular surgeon performs an operation at a specific hospital.

Confidentiality Clauses Mean Patients Can’t Learn About Surgical Errors

9 Investigates reports on the “secret settlements” healthcare facilities frequently enter into to compensate patients for surgical errors while keeping patterns of negligence from the public.

One patient interviewed for the story had sustained serious health problems when a surgical sponge was left inside of her body. She knew something was wrong after the procedure, and six months later the sponge was spotted on an x-ray. She was diagnosed with an abdominal mass and sent back to her original surgeon for emergency surgery. When the sponge was removed, the surgeon never told her it was a sponge. The hospital ultimately settled the case with her, but a condition of the settlement was signing a confidentiality agreement.

The confidentiality agreement prevented her from discussing what had happened and for the last 20 years she has suffered in silence as she underwent multiple additional surgeries and endured years of pain. While she still cannot discuss the settlement, she is speaking out about what she went through as part of an effort to get rules changed about the permissibility of confidentiality agreements.

Several states– including California, Florida, and South Carolina– have laws prohibiting confidentiality agreements in some or all malpractice claims, so there is more transparency when a hospital makes a surgical mistake. These laws make it impossible for healthcare facilities to buy patient silence as a condition of compensating them for surgical errors they have endured.

Because so many cases are kept confidential, most patients are unaware that a surgical instrument or other foreign object is left inside patients in as many as one out of every 5,500 surgeries.

Information is not only hard to come by due to confidentiality agreements but also because there is limited data available from government sources. The federal government stopped reporting on these types of preventable errors made by hospitals last August, although the government subsequently reversed the decision and decided to keep making reports. NY laws also keep complaints against physicians secret unless the complaints result in a statement of charges or a final disciplinary action. When complaints are not adjudicated or when complaints are settled without formal disciplinary action, the public may never know a surgeon has made an error.

Patients deserve to know when doctors and hospitals have a history of serious mistakes in surgery. More states should consider putting laws in place prohibiting healthcare facilities from forcing affected patients to stay silent.

Jonathan C. Reiter NYC Injury Lawyer

New York City Personal Injury Lawyer / Aviation Accident Attorney