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.

The Impact of a Missed Prostate Cancer Diagnosis

New York City leading medial malpractice trial lawyer

New York medical malpractice trial attorney, Jonathan C. Reiter, explains the potentially disastrous consequences of a delay in diagnosis and offers his advice on the best course of action to take.

As the second most common type of cancer among men according to the American Cancer Society, around 1 in 9 men will receive a diagnosis of prostate cancer during their lifetime. (To put that number into context: 1 in 8 women are diagnosed with breast cancer.) Each year, there are approximately 174,000 new prostate cancer diagnoses in the United States, and it results in nearly 31,000 annual deaths. Fortunately, prostate cancer is highly treatable, and most men diagnosed with it survive.

But what can happen when a doctor fails to diagnose prostate cancer? Or when a delay in diagnosis requires a patient to undergo much more involved and life-changing treatment?

Because prostate cancer is rare in men under age 40, some doctors may dismiss the possibility entirely. When they fail to test for it, a patient’s long-term health and well-being can suffer irreversible impact. In extreme cases, a missed diagnosis can even lead to death.

The Importance of Early Diagnosis of Prostate Cancer

Prostate cancer is generally highly treatable, which makes a missed diagnosis even more devastating. The American Cancer Society states that 3.1 million men in the U.S. today have survived prostate cancer. Without a proper medical diagnosis, it’s likely many of them would not have survived.

Oncologists use a figure called the five-year survival rate to assist in the prognosis of different forms of cancer. The five-year survival rate indicates the percentage of patients diagnosed with a particular condition that are still alive five years after their diagnosis. In the case of prostate cancer, those with local or regional cases (that is, the tumors have remained confined to the prostate and surrounding organs), the five-year survival rate is close to 100%. But when the cancer spreads to other parts of the body, this number plummets to 30%. The later the diagnosis, the more likely the cancer has spread to remote parts of the body.

Screening for Prostate Cancer

Health experts and cancer prevention guidelines recommend that men receive a prostate cancer screening from a primary care doctor or urologist every two to four years starting at the age of 50. Men with a family history of prostate cancer and men of African-American descent are at higher risk for prostate cancer, and should discuss receiving an earlier screening with their doctor.

Recent advances have made the detection of prostate cancer more reliable. There are currently two tests used by doctors to screen patients for prostate cancer. The most common form of screening is a rectal exam, during which doctors check the prostate for irregularities that could indicate a tumor or the beginnings of one.

Additionally, doctors may administer a prostate-specific antigen blood test (PSA), which measures a protein produced by the prostate that may be elevated if there is cancer present. Because PSA is always present in the male body and elevated levels can be indicative of conditions other than cancer, physicians cannot rely solely on this test to make a diagnosis. However, abnormally elevated PSA warrants further testing such as a prostate biopsy.

What Are the Symptoms of Prostate Cancer?

It’s important to note that not every man with prostate cancer will exhibit symptoms. This is what makes it critical to be screened for the disease at regular intervals.

In cases where symptoms are produced, they may include:

Frequent urge to urinate which may worsen at night.
Difficulty beginning to urinate, or a weak or interrupted stream of urine.
Pain, discomfort, or a burning sensation during urination.
Pain in the lower back, upper thigh, or hip.
Presence of blood in semen or urine.
Difficulty achieving or maintaining an erection (erectile dysfunction).
Pain during ejaculation.

Not everyone knows how important it is to be regularly screened for prostate cancer, and many men don’t realize that the risk for developing prostate cancer increases with age. When doctors fail to inform their patients of their screening options, diagnosis may be missed or delayed.

Damages Caused by a Doctor’s Prostate Cancer Misdiagnosis or Delayed Diagnosis

Like many cancers, prostate cancer has a much higher survival rate when it’s caught early. Patients who are diagnosed early may be able to avoid overly invasive treatment altogether. This can improve their quality of life, reduce their stress levels, and allow them to remain active and keep working while undergoing treatment. An early diagnosis can also keep a patient’s medical expenses low.

When a doctor misdiagnoses or delays a prostate cancer diagnosis, patients may suffer unnecessary physical pain and emotional anguish, including permanent loss of sexual function due to aggressive treatment, scarring, removal of organs, and even death. Patients who undergo invasive cancer treatment may never fully recover their physical health, which puts them at risk for having to leave the workforce, therefore impacting their entire family.

Failure to Diagnose Prostate Cancer

Men who have suffered a missed or delayed diagnosis of their prostate cancer may be entitled to receive compensation for their injuries and other damages suffered. This is why it’s important to contact a medical malpractice lawyer who has an established history of handling cases in the area of medical misdiagnosis and medical malpractice.

About the author: Attorney Jonathan C. Reiter medical malpractice attorney

Jonathan C. Reiter is a medical malpractice attorney esteemed for his successful track record in medical malpractice verdicts and settlements. No financial compensation can replace a man’s unnecessary death, or the pain endured by his family members. Because premature death may create a huge financial burden on the family left behind, having a compassionate lawyer on your side is essential. When your story is a medical tragedy, Attorney Jonathan C. Reiter, a renowned medical malpractice attorney with offices in Manhattan, Bronx & Queens, is available for a no-fee consultation.

Sources:

https://www.cancer.org/cancer/prostate-cancer/about/key-statistics.html
https://www.cancer.net/cancer-types/prostate-cancer/statistics
https://www.cancer.gov/types/prostate/psa-fact-sheet
https://www.breastcancer.org/symptoms/understand_bc/statistics#targetText=About%201%20in%208%20U.S.,(in%20situ)%20breast%20cancer.

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