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.

Lawmakers Take No Action on Bill to Help Medical Malpractice Victims

A proposed law that would benefit victims of medical malpractice has died in the New York State Senate as the legislative session came to a close with no action taken on it.

Known as “Lavern’s Law,” the bill would change the statute of limitations for filing a medical malpractice lawsuit. Under current law, victims of medical malpractice have 15 months to file suit against a public hospital and 30 months to file suit against a private doctor or hospital. This statute of limitations begins when the mistake was made. The proposed law would begin the statute of limitations when the mistake is discovered.

It’s an important change. In many cases, such as those involving misdiagnosis, years pass between the time a mistake is made and when it is discovered – which means that the statute of limitations runs out before the patient even knows that he or she has been hurt.

That is what happened to Lavern Wilkinson, the Brooklyn woman who is the bill’s namesake: A small but suspicious mass in her lung, which ultimately turned out to be early-stage cancer, was spotted by a radiologist in 2010. But the patient was never notified, and by 2012, when she finally learned she had been misdiagnosed, the cancer had progressed to a terminal stage – and the statute of limitations had run out.

Unfortunately, this is one of many such cases that have affected patients throughout New York and in other states with similar laws. When a medical professional fails to diagnose a condition or fails to notify a patient of a potential issue, the clock immediately starts ticking on the patient’s right to file a lawsuit – even though, by definition, the patient is unaware of the error! In effect, the current law robs many patients of their right to be fairly compensated when they are seriously hurt by medical malpractice.

There had been attempts to modify the law for years, but the publicity surrounding Wilkinson’s case gave a boost to those efforts. The New York State Assembly passed the bill in June 2015 and sent it to the Senate, but it never came to the floor for a vote.

Lavern’s Law has widespread public support, and 33 organizations sent a letter to legislative leaders asking them to advance it. But the measure faced fierce opposition from doctors and hospitals, who fear a rise in lawsuits and increased medical malpractice insurance rates if the proposal becomes law. Unfortunately, for those care providers, concerns about cost trump a patient’s right to be fairly compensated after a medical error.

The future of the proposed law is unclear. But during the next legislative session, lawmakers will hopefully do the right thing and give victims of medical malpractice a fair chance to seek justice.

If you have any reason to believe you have been the victim of medical malpractice, it is critically important to get legal advice as soon as possible. Building a case takes time, and the clock is always ticking on the statute of limitations.

Jonathan C. Reiter NYC Injury Lawyer

New York City Personal Injury Lawyer / Aviation Accident Attorney