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 LAW APPLIES TO DAMAGES IN AIRPLANE CRASHES?

New York City leading medial malpractice trial lawyer

Conflicts of law can help or hurt grieving families: here is what you should know about the jigsaw puzzle of damages laws in aviation accidents.

In the aftermath of an airline crash, all attention is focused on how the crash happened and who is at fault for causing it. But once the lawyers get involved there will be a battle over how much each grieving family can recover in monetary damages and this depends upon what law the court will apply to the subject of damages. Passengers and crew in an aviation accident may come from different countries and different states. The laws applicable to wrongful death damages in those countries or states may be radically different from each other, with some places allowing very limited recoveries and others allowing substantial damages. Despite early expressions of sympathy for the victims’ families by the airlines and governmental entities, once lawsuits are filed, the lawyers for these defendants will be arguing for the application of law of the country or state that will cost their clients the least in damages. Conversely, the families of the victims will seek to apply the laws of the jurisdictions that allow the maximum recovery.

This subject falls under the legal term “conflict of laws”, meaning that where two or more potential jurisdictions are involved whose laws differ on a particular subject, the court needs to decide what law will apply. The answer to this question also depends upon what court is making the decision. The court where the lawsuit is brought is called the “forum” and the conflicts of laws rules of potential forum states may also vary. This is a jigsaw puzzle that lawyers for the victims will have to navigate.

As an example, in the Colgan Air Flight 3407 crash in upstate New York in 2009 – the last crash of a commuter plane in the United States prior to the recent disaster near Reagan National Airport – our law firm represented the family of a young woman who was a citizen of the People’s Republic of China. She was working at a major accounting firm in New York City for a two-year assignment. She was earning a multiple six figure salary and had great prospects for future advancement. Her husband was living with her in New York City and they planned to ultimately become U.S. citizens. The wrongful death law of the State of New York permits full recovery to the victim’s family for “pecuniary loss”, meaning the amount of money the victim’s survivors will lose in support over the projected lifespan of the victim, along with damages for loss of a parent’s “nurture, care and guidance” where there is a child involved. Applying the law of New York-the place where the crash occurred-the damages would likely be in the many millions of dollars. Fearing an enormous damages award, lawyers for Colgan Air argued that the Court should apply the damages law of the People’s Republic of China which they argued was the victim’s “domicile”. The law of the People’s Republic of China only allowed damages in the amount of a fixed multiple of the average wage of persons in the town or city where the victim had permanent residence, without regard to the actual income or earning power of the victim. This would have resulted in a very small fraction of what the case was worth under New York law. This was a true “conflict of laws” that had to be resolved by the Federal Court in New York, which was the “forum state” because the lawsuit was brought in New York.

In airline crashes, the Courts are typically asked to apply either the law of the place of occurrence or the law of the victim’s domicile. A person’s “domicile” is a person’s permanent residence-the place to which the person intends to return even if they are living elsewhere temporarily. The law of the place of occurrence, is traditionally referred to by lawyers with the latin phrase “lex locus delicti” – literally the law of the place of the wrong. Sometimes the law of the domicile benefits the victim’s family, and sometimes the law of the place of occurrence benefits the family. There may also be disagreement as to what the victim’s domicile is at the time of the crash. In the case of our Chinese client in the Colgan crash, defendant argued that her domicile was still China, even though she was living in the United States intending to ultimately become a US citizen. Regarding the location of the crash this may also be a disputed subject. In the Colgan crash, we successfully argued that New York law should apply under the principle of “lex locus delicti”, based upon the prevailing conflict of laws rules in New York. This resulted in a recovery for the family exponentially higher than what would have been available under Chinese law.

Application of the law of a foreign country to an airline crash in the United States can thus have serious financial consequences for a victim’s family. The People’s Republic of China is one example, but other countries such as Russia and various countries in Latin America, Asia and the Middle East may have much more restrictive damages laws. Families of such victims would seek to have United States law applied i.e. “lex locus delicti” and not the law of their home country. Conversely, a United States citizen might be killed in an airplane crash in a foreign country and the family would seek to have the damages law of the victim’s “domicile” applied. For example, we represented the family of a victim in the Lockerbie crash in Scotland where the damages law was markedly less favorable than the victim’s domicile in the United States and successfully argued that under the facts of that case, the location of the crash itself was fortuitous i.e. essentially random, and the victim’s domicile was a more persuasive factor-again resulting in a recovery miles above what would have been available in the foreign jurisdiction.

Conflicts also arise between the laws of different states. For example, while virtually every state in the union allows damages for the grief and emotional suffering of family members, so called “non-economic” damages, New York, at least at the present time, does not allow this category of damages, limiting recovery to “pecuniary loss”. Efforts to remedy this deplorable situation have been stymied by New York’s present governor who has vetoed the so-called “Grieving Families Act” passed by the legislature multiple times. Some states that do allow non-economic damages in wrongful death cases may impose “caps” on those damages which vary from state to state, although most states do not impose such caps. Some states, such as New York allow damages for the pain and suffering of the victim prior to death, including pre-mortal terror and awareness of impending death, a category of damages pioneered by our firm, whereas some states do not allow such damages. Conflicts may also arise when Federal laws are involved, such as the Death on the High Seas Act, where the plane crashes is over the ocean, or Federal common law.

As philosophical questions, one might ask shouldn’t all victims’ families in the same plane crash be governed by the same law of damages? Indeed, sometimes the court comes to that conclusion, but not necessarily for that reason. For example, in the case of the crash of American Airlines Flight 587 into Jamaica Bay in 2001, we represented numerous victims’ families from the Dominican Republic, but ultimately all those cases were decided under Federal law. Often however, for better or worse, courts apply different damages laws to different victims, resulting in disparate treatment that may be deeply troubling to some families, while benefitting others.

Jonathan C Reiter Law Firm