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.

Delay and Defend: The Fatal Risks of Partial Medical Error Disclosure

We trust physicians to deliver prompt, effective care. Accurate diagnosis leads to accurate treatment. Clear communication leads to a stronger doctor-patient bond. There are expectations for the Hippocratic Oath to be upheld. Swift and direct care from a physician can prolong life, as is often the case with skilled medical professionals. However, sometimes our care quality falls short of our standards. Withholding information on and not admitting to medical errors can cut life short.

A survey by Georgia State University was given to more than 300 primary care physicians from a variety of healthcare systems, located in three different states. The hypothetical scenarios they were given took place in an oncology setting, involving two instances of delayed care. The first involved a delay in the diagnosis of breast cancer, while the second error was due to a slow response to patient symptoms attributed to a lack of communication in coordinating the patients’ care.

When asked if they would offer the patient full disclosure to answer why their care had been delayed, the results were troubling. Seventy-seven percent of PCPs in the first scenario, along with fifty-eight percent from the second stated that they would withhold information regarding the error, choosing to vaguely address the cause of the problem instead.

According to the study, “The majority of respondents (71 percent) had been in practice for more than 10 years, over half (55.6 percent) indicated they often questioned whether the demand of their practice was worth the toll, and a third (36.7 percent) often thought about leaving practice.” Patients deserve better. They deserve an upholding of the Hippocratic Oath physicians take-“do no harm” is a commandment, not an option.

Why withhold information?

When something goes wrong, you want to hear answers, not “it wasn’t my error.” Unfortunately, this mindset is all too prevalent among providers. When those words are spoken, patients hear nothing but denial. This statement is attached to the “deny and defend” policy that many hospitals still use. This method denies the patient full disclosure regarding medical practice (including errors) and keeps them in the dark.

Too often, medical errors lead to adverse events. These are serious, unanticipated outcomes which are usually non-fatal, but can still be devastating. The silence surrounding the disclosure of adverse events only serves to deepen the emotional (and, if further complications arise, financial) wounds that leave lives in disarray and break the much needed bond of trust between patient and provider.

Why is a patient left out? Some common reasons include:

Fear of embarrassing oneself or a coworker
Lack of a “just culture” in which reporting events is encouraged without worry
Physician stress
Lack of trust and communication in a weak or non-existent patient-doctor bond

An article from the New England Journal of Medicine states: “Multiple barriers, including embarrassment, lack of confidence in one’s disclosure skills, and mixed messages from institution and malpractice insurers make talking with patients about errors challenging.” Medicinal culture lacks a reward system for reporting errors. It also fails to facilitate proper coordination of care between providers and discussion about care errors. The same article also notes that “fear of how a colleague will react, along with strong cultural norms around loyalty, solidarity, and ‘tattling’ may deter such conversations.”

But failure to disclose medical details and errors has claimed more than one life, and will continue to take more if action isn’t taken.

The Boston Globe covered one such case from 2013. A young woman delivered premature twins via C-section. Everything seemed to be OK. But a week later, one of the children was treated for a deadly intestinal condition known as necrotizing enterocolitis. Her blood had turned acidic, and surgeons removed her colon in a last-ditch effort to save her life. The baby died, just 8 days old. Sadly, this fatality could have been avoided had clinicians paid attention to early symptoms of the condition.

In another case, a teacher’s breast cancer diagnosis was completely missed and the lump in her breast was deemed “fine.” But the only “fine” in her case involved legal fees and, thankfully, financial compensation. Stress from her case was also alleviated via a face-to-face meeting with her doctors, proving that steps can be taken towards repairing and re-instituting a doctor-patient bond with full disclosure instead of darting around the issue.

What can be done to change the situation?

We count on our healthcare system to help us, not work against us by withholding information. Where there are unreported errors, there were preventable measures not taken. Only ten states make it mandatory for errors to be disclosed to patients, and none of that even guarantees an apology.

Steps can be taken to reduce the number of occurrences, by both providers and medical institutions. They can work to re-implement a culture that promotes the reporting of errors both to higher authorities and patients. Patient-centered care includes the necessity for apology and explanation, as well as working towards preventing another error.

Adept in handling medical malpractice cases and providing an individualized approach to every case, the Jonathan C. Reiter Law Firm, PLLC can help victims of undisclosed errors find their voices again.

Medical non-disclosure can often result in debilitating, sometimes fatal, outcomes. For the sufferers of provider failures, contacting Attorney Jonathan C. Reiter is the first step towards recovery and well-deserved compensation. A free case evaluation is the opportunity that innocent victims need to speak up, take initiative, and commence seeking compensation.

Jonathan C. Reiter NYC Injury Lawyer

New York City Personal Injury Lawyer / Aviation Accident Attorney