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.

Understanding Medical Malpractice and Its Impact by NYC Medical Negligence Trial Lawyer Jonathan C. Reiter

What is the video about?

In this episode, attorney Jonathan C. Reiter discusses the intricacies of medical malpractice law in New York, focusing on surgical errors and misdiagnosis causing delayed treatment, especially in cancer cases. He explains the legal requirements for proving malpractice, the statute of limitations, and recent legislative changes like Laverne’s Law. Mr. Reiter highlights challenges such as ‘junk science’ in defense and the emotional toll on victims. He advocates for better compensation for emotional injuries and addresses the impact of the Grieving Families Act, which aims to provide compensation to family members for grief and emotional harm in wrongful death cases, but which has been repeatedly vetoed by the Governor.

Medical malpractice occurs when healthcare professionals act negligently, adversely affecting victims and their families. Key elements and types of malpractice cases are discussed, along with the statute of limitations for claims. Lawsuits face challenges, including finding qualified expert witnesses and persisting through the potentially long delays in prosecuting lawsuits in New York courts. Victims may experience deep emotional consequences as well as economic losses from the malpractice that may impact their ability to support themselves and their families.

What constitutes negligence in medical care?

Medical malpractice, as shown in the video, constitutes negligence by medical professionals including doctors, physician’s assistants, nurse practitioners, hospitals and other health care providers. This negligence must involve a departure from the accepted standard of care causing injury or death to the patient. Proving negligence is not enough. A causal link between the negligence and the resulting harm must also be proven.

What constitutes a departure from standard care?

A departure from the standard of care in medical malpractice means the medical professional’s actions did not follow accepted practices within the profession. It results from doing an act that a reasonable and prudent physician would not do, or failing to do an act that a reasonable and prudent physician would do. This deviation from the standard of care must have resulted in injury or death to the patient. Negligence and causation are both necessary to prove in a successful lawsuit.

How is causation established in malpractice?

In New York medical malpractice cases, establishing causation means showing that the physician’s negligence was a substantial factor in causing the patient’s harm. This involves proving the doctor’s actions, or lack thereof, resulted in the injury or death. It is not necessary to prove that the physician’s negligence was the only factor, so long as the jury finds that it was a substantial factor in causing the harm. Demonstrating a loss of chance for a better outcome is particularly important in misdiagnosis or delayed treatment scenarios.

How does misdiagnosis affect cancer treatment outcomes?

Delayed cancer diagnosis resulting from medical errors can drastically lower the chances of a successful outcome. For instance, a delay might allow a tumor to progress and metastasize to other organs and thereby decrease the cure rate from 85% to a mere 20% or less. This reduction in the probability of a positive outcome is termed “deprivation of chance.” This highlights the critical need for timely diagnosis and treatment to avoid fatal outcomes.

What is New York’s statute of limitations for malpractice?

New York’s medical malpractice statute of limitations is generally two and a half years from the date if the malpractice. However, exceptions exist, such as the continuous treatment doctrine, which delays the running of the statute until treatment by the negligent doctor concludes. In cancer misdiagnosis cases, the statute begins to run when the cancer is discovered, not necessarily when the negligent misdiagnosis occurred. There is also a discovery rule applicable to cases in which objects such as sponges or surgical instruments are negligently left in the patient’s body during surgery. Nevertheless, if the patient has a reasonable suspicion that malpractice has occurred, it is wise to obtain legal counsel as soon as possible.

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