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.

When doctors lie to protect other doctors

8 Medical Mistakes You May Not Know About

Jonathan C. Reiter Law Firm, PLLC

When Doctors Hide the Truth

While it’s great that doctors have a support system of fellow physicians, there are cases in which being supportive crosses the line into covering up evidence of another physician’s mistakes

No matter what industry they work in, most people feel a sense of camaraderie with their co-workers. It’s normal to connect with others with similar educational backgrounds and career paths. This is often true with physicians, who spend many years training in medical school and residency programs. Many doctors also work long hours. Additionally, medicine is one of the most high-stress occupations in the country. It’s natural that they often identify most closely with their fellow colleagues.

This sense of community is common in other industries that feature stressful working conditions. Whether you work in a hospital, factory, or police force, the people most likely to understand the ups and downs of your job are the folks around you. Call it a “brotherhood,” “sisterhood,” or “village,” finding like-minded friends and co-workers can make a tough job more bearable.

While it’s great that doctors have a support system of fellow physicians, there are cases in which being supportive crosses the line into covering up evidence of another physician’s mistakes. When doctors fail to speak up when they observe another doctor engaging in medical malpractice, or they actively help a colleague cover up errors, they can cause a patient to experience additional injuries.

Doctors Covering Up Evidence of Medical Malpractice

In a disturbing case reported by NPR, a doctor who is now retired admitted that he lied under oath in a medical practice case in which a doctor from his own practice was accused of making a medical error. The physician who lied had been called to vouch for the skill and expertise of his partner, whose patient had experienced a stroke during surgery and was left with a permanent disability because of it. The doctor’s colleague was cleared of any wrongdoing.

The doctor who lied published an essay in a patient safety Facebook group, stating, “From that very moment I knew I had lied — lied under oath — and violated all my pledges of professionalism that came with the Doctor of Medicine degree and membership in the [American Medical Association].”

As NPR states, research from ProPublica reveals that “many physicians do not have a favorable view of informing patients about mistakes” and that health care workers are afraid to speak up when things don’t seem right. Moreover, “many doctors and nurses have told ProPublica that they fear retaliation if they speak out about patient safety problems.”

Doctors Aren’t Surprised That Fellow Doctors Lie

In a separate survey conducted by Medscape, doctors were asked if they were surprised to hear that a physician had lied to protect another physician. Out of 4,100 respondents, a staggering 81 percent said they were not surprised. As one psychiatrist put it, “This is not at all surprising. It’s just another example of tribalism, whether it’s lying to protect your family or your profession, or merely self-preservation.”

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Prior results cannot and do not guarantee or predict a similar outcome with respect to any future case. Recoveries always depend upon the facts and circumstances of each case, the injuries suffered, damages incurred, and the responsibility of those involved.

Media Contact:

Manthanaan medical malpractice lawyer Jonathan C. Reiter. T: 212-736-0979.

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