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.

Diagnosis Errors: A Common Cause for Medical Malpractice Claims

Mistakes made when diagnosing a patient at a hospital are among the leading reasons why patients or their families decide to take legal action (including filing a lawsuit) against hospitals, according to a recent study conducted by an insurance company that represents physicians nationwide.

The Doctors Company recently released its findings. The insurance company represents more than 78,000 physicians. The report is based on claims filed against “hospitalists” (physicians who work exclusively in hospitals) that were resolved between 2007 and 2014. During that time period, there were 464 closed claims.

By far, the two most common reasons people cited for deciding to take legal action against a hospitalist were diagnosis-related issues (36 percent of cases) and improper management of treatment (31 percent). Other common reasons cited by patients or their families for taking legal action against hospitalists were medication errors (11 percent) and delay of treatment (5 percent).

What types of mistakes are made when diagnosing patients?

In terms of diagnostic mistakes, patients or their families often cited two major reasons why they decided to take legal action against a hospital or a specific physician – incorrect diagnosis and delay in diagnosis.

Incorrect diagnosis of a serious medical condition occurs for many different reasons. Sometimes, a physician fails to take into account a patient’s complete medical history. Other times, a health care provider might misread medical tests X-rays MRI’s or CT scans. Lack of communication between physicians and other medical staff or patients themselves also often contributes to a misdiagnosis of a medical condition.

The Doctors Company report states that such problems often occur at hospitals because physicians working there “have limited access to patients’ past medical histories” and must make “quick diagnosis” of “patients with serious conditions.” Specifically, mistakes made during the initial assessment of a patient occurred in 35 percent of cases.

Delay of diagnosis at hospitals also often occurs. In one of the case examples cited in The Doctors Company report, the document describes a 50-year-old woman who came to an emergency room with fever, chills and pain in her neck. One doctor considered giving the woman an MRI but decided not to do so. Three days after being hospitalized, another doctor ordered an MRI and discovered that the woman had a cervical epidural abscess, which involves compression of the spinal cord. Surgery was immediately performed, but the woman became a quadriplegic.

What can patients do if doctors fail to diagnose an illness or diagnose an illness too late?

Attorney Jonathan C. Reiter of New York has prosecuted many malpractice cases involving incorrect or delayed diagnosis. The most important question is whether the incorrect or delayed diagnosis has irreparably harmed the patient. Sometimes a physician makes a mistake in diagnosis, but the patient gets better or the treatment of would be the same. This is frequently an issue in cancer cases, where the delay in diagnosis might not be long enough to change the patient’s outcome or treatment.

In other cases however, the delay in diagnosis allows the patient’s cancer, infection or other illness to progress to the point that the patient’s chances of survival have been seriously diminished or destroyed entirely. Sometimes a patient may have an injury or illness that could be cured with prompt treatment or surgery, but the delay in diagnosis and treatment results in a catastrophic outcome that could have been avoided. Those unfortunate scenarios are the basis for medical malpractice cases and may result in substantial damage awards to the patient or the patient’s family in the case of wrongful death.

If you have a question about a misdiagnosis or delayed diagnosis, contact the Law Firm of Jonathan C. Reiter, PLLC, and we will explain all the legal options available to you. Call (866) 324-9211 and schedule your free case evaluation. Our offices are located in the Empire State Building in Manhattan as well as in the Bronx.

Jonathan C. Reiter NYC Injury Lawyer

New York City Personal Injury Lawyer / Aviation Accident Attorney