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.

What Is a Retained Surgical Item?

New York City, NY – Top attorney, handles medical malpractice, doctors errors, wrongful death, airline injuries & death, MTA, bus accidents, and construction cases. Attorney Jonathan C. Reiter consistently delivers results.

Americans undergo around 28 million surgeries every year. When a person undergoes surgery, doctors and nurses often need to use a variety of surgical instruments, sponges, clamps, pads, tubes, and other items. When a health care professional accidentally leaves one of these items inside the patient and closes the surgical incision, the object is known as a “retained surgical item.” According to one report, there are roughly 1,500 retained surgical item cases every year in the United States. The report goes on to state that the forgotten items are fabric nearly 70 percent of the time and metal in the 30 percent of remaining cases. In some cases, metallic surgical instruments break during the procedure, and a fragment of metal gets left behind in the patient that is not noticed by the surgical team.

Retained surgical items can put a patient at serious risk. Patients can develop a range of health problems, and some people have died after a doctor left behind a surgical item during surgery.

The Association of Perioperative Nurses states, “Foreign bodies that are unintentionally left in patients after surgery can cause harm to surgical patients. Proactive risk strategies are required to prevent and reduce the occurrence of unintended retained surgical items (RSI) events for every patient undergoing an operative or other invasive procedure.”

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Why Do Surgical Items Get Left Behind?

When a patient discovers that he or she has been the victim of a retained surgical item, one of their first thoughts is often to wonder how a doctor or hospital could have made such a monumental surgical mistake.

If you watch medical or hospital shows, you may have noticed the surgical team counting items as they use them. This method is standard practice in operating rooms, and the idea is that by counting items as they are used and then recounting at the end of the surgery, the surgical team can account for all the tools, sponges and other items used during the procedure.

However, a report points out that 88 percent of retained surgical item cases involve a correct count. In other words, even though a correct count is documented in the records, a foreign object was unintentionally left in the patient.

Symptoms of a Retained Surgical Item

The signs of a retained surgical item can vary widely, so it’s important for patients to see a doctor right away if they feel unusual or odd after a surgery. Some of the most common symptoms of a retained surgical item include:

Excessive or prolonged pain
Signs of infection of the surgical wound site, such as redness, swelling or drainage
Fever, rapid heart rate, respiratory distress or other signs of systemic infection
Headaches and mental status changes
Constipation or trouble urinating
Abdominal bulging or distention
A wound that won’t heal
Rapid weight loss
Enlarged lymph nodes

Because a retained surgical item can cause infection, it’s very important for patients to be watchful for signs and symptoms of local or generalized infection, which can include pain and a high fever.

In other cases, a patient may experience unexplained, unusual or prolonged pain following surgery. A patient may feel that something isn’t right but can’t get satisfactory answers from the doctor. When these instances occur, it’s important to listen to your gut and follow your instincts. Doctors and nurses are human, and they make mistakes. While not every pain following a surgery turns out to be a retained surgical item, it’s best to rule it out before moving on to other possible explanations.

Your Rights If You’re a Victim of a Retained Surgical Item

One of the most frustrating and frightening realities about retained surgical item cases is that patients typically go for long periods of time before a doctor ever realizes a mistake has occurred. Because most surgeries require a recovery period, doctors may be quick to brush off a patient’s complaints as normal everyday symptoms of recovery.

In other cases, an x-ray or MRI may reveal an item that has been left behind. Some types of pads used in surgery have tapes that are intentionally radiopaque, meaning they are meant to show up clearly on x-rays. However, there have been cases in which a retained surgical item doesn’t reveal itself on initial x-rays or scans. In these cases, the retained item is made from a material that won’t show up when scanned, or an organ or another body part obscures the item from being seen.

If you believe you have been the victim of a doctor’s mistake or have been diagnosed as having a retained surgical item, you may be able to file a medical malpractice claim. Victims of retained surgical items often have substantial damages, including pain, suffering and additional surgery to retrieve the retained item as well as to deal with any additional medical complications that have occurred. Typically, patients incur additional medical bills, lost wages, and other economic damages due to treatment and surgery for retained surgical objects. Depending on the facts of your case, you may be entitled to compensation for these damages and losses.

Once the patient discovers that they have been the victim of medical malpractice involving a retained surgical object, there is a limited time to file a lawsuit. That is why it’s important to act quickly if you discover that your doctor or hospital left an item behind in your body during your surgery. It’s best to speak to a medical malpractice lawyer about your options.

Media Contact:

NYC Medical Malpractice Lawyer Jonathan C. Reiter. T: 212-736-0979

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