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.

Your Rights After a Lung Cancer Misdiagnosis

If you have experienced a lung cancer misdiagnosis

According to the American Cancer Society, lung cancer causes more deaths in the United States than colon, breast, and prostate cancers combined, making up 13 percent of all new cancer cases. Lung cancer is also the second most common form of cancer among both men and women. Each year, there are about 228,000 new cases of lung cancer. Annually, over 142,000 people die from lung cancer.

Contact a NYC Medical Malpractice Lawyer

If you have experienced a lung cancer misdiagnosis, or your doctor diagnosed you with lung cancer by mistake, you may be entitled to compensation for your damages. It’s important to discuss your case with a New York City medical malpractice lawyer. There are time limits for filing a medical malpractice claim, so don’t wait to speak to a cancer misdiagnosis lawyer about your options.

As with all cancers, early detection and prompt treatment are important for improving long-term survival rates. While people who smoke are at the highest risk of developing lung cancer, the disease can also occur in people who have never smoked. Additionally, the majority of people diagnosed with lung cancer are age 65 and older. However, lung cancer can affect people of all ages.

Because lung cancer tends to develop in people who are older, as well as people who smoke or have smoked in the past, doctors can sometimes dismiss lung cancer as a possible cause of symptoms in people who don’t fit these demographics.

Also, lung cancer symptoms can often mimic symptoms of other health conditions. When doctors fail to diagnose lung cancer or misdiagnosis it as another illness, patients can suffer lasting harm.

What Are the Symptoms of Lung Cancer?

Although other common types of cancer are routinely screened for in patients at risk, this is rarely the case for lung cancer. The majority of doctors don’t perform any type of testing unless a patient presents with certain symptoms. Symptoms include a cough that won’t go away, chest pain, wheezing, coughing up blood, bone pain, and persistent headaches.

As with many other health conditions, lung cancer symptoms can vary from patient to patient, which makes it important for doctors to conduct certain types of testing to rule out lung cancer or confirm a lung cancer diagnosis before recommending or beginning any kind of treatment.

Tests varying among practitioners, as well as according to the needs of the patient. Some of the most common tests and screenings used to detect lung cancer include MRIs, PET scans, x-rays, and biopsies. Doctors may also perform a sputum analysis or a bronchoscopy if they suspect a patient may have lung cancer.

A sputum analysis is a test that analyzes secretions produced by a patient’s cough. With this type of test, doctors and pathologists review the cells within the secretions to look for cancer cells. However, cells contained in sputum don’t always necessarily exhibit signs of cancer despite the presence of cancer within a patient’s lungs.

A bronchoscopy may be performed on a patient with suspected lung cancer. This type of test is performed with the insertion of a tube into the patient’s airways, usually through the mouth or the nose. This allows doctors to view any tumors that might be present in the lungs. If a doctor sees a tumor, they will typically conduct further testing to determine if lung cancer is present.

A biopsy involves the removal of a piece of tissue from the affected part of the body. In the case of lung cancer, doctors typically biopsy a patient’s lungs by using a very fine needle. Biopsies aren’t foolproof, and misdiagnoses can still occur, so it’s important for doctors to perform other testing if necessary.

Lung Cancer Can Be Misdiagnosed as Other Diseases

Unfortunately, it’s possible for doctors to misdiagnose lung cancer for something else. In some patients, they may miss lung cancer because they confuse it with another lung condition, such as tuberculosis, pneumonia, or lung nodules.

When doctors miss lung cancer, they delay a patient’s treatment. This can allow the cancer to spread to other areas of the body. It also subjects the patient to more aggressive and more invasive treatment in the future. In the most devastating cases, a patient dies because their doctor misdiagnosed their lung cancer.

In other cases, a doctor diagnoses a patient with lung cancer by mistake. This can lead to invasive treatments that cause a patient unnecessary pain, stress, and even harm.

Sources:

https://www.cancer.org/content/cancer/en/cancer/lung-cancer/about/key-statistics.html
https://www.cancer.gov/types/lung

http://www.rightdiagnosis.com/l/lung_cancer/misdiag.htm

Jonathan C Reiter Law Firm