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.

Can I Sue If My Doctor Didn’t Tell Me About a Specific Risk?

Anyone who has undergone a surgery or a medical procedure knows that there is usually a detailed list of potential complications that could occur. Depending on the nature of the procedure, the risks might be relatively minor or quite serious.

The law requires doctors to inform their patients about the risks involved in any surgery or invasive medical procedure they propose. In both law and medicine, this information is referred to as “informed consent.” The idea is that doctors have a duty to let patients know all the risks before performing a surgery, procedure or any kind of treatment plan.

If you believe your doctor withheld a risk from you, and you were injured as a result of a doctor’s negligence, you may be able to file a medical malpractice claim. It’s important to talk to a New York City medical malpractice lawyer about your case, as there are strict time limits for filing a claim.

Informed Consent Explained

The vast majority of medical treatments and surgical procedures come with some level of risk, even if some of the risks are unlikely to occur. Regardless of how minimal the risk, however, doctors are required to tell patients about the possible complications involved in any kind of treatment.

In fact, most doctors and hospitals require patients to sign a form that deals with risks and complications. Some forms list a variety of possible risks, while others merely state in general language that the patient has been advised that there are risks to the procedure. However, it’s important to point out that just because a patient signs a consent form doesn’t necessarily mean that they understood the risks and gave their informed consent to the procedure. If a patient believes their doctor failed to inform them of the risks of a procedure, and the patient sustained an injury as a result, the patient may be able to pursue a medical malpractice claim.

What Kinds of Risks Is a Doctor Required to Disclose?

Doctors are required to inform their patients of important risks. In a medical malpractice case, the question of whether the doctor had a duty to disclose typically revolves around two questions: whether other doctors in a similar situation would have considered the risk important enough to disclose, and whether the patient would have gone forward with the procedure if they knew about the risk.

In most if not all cases, the plaintiff’s attorney will need to obtain an expert witness to provide testimony stating that most doctors under similar circumstances would have deemed a risk important enough to disclose, and that the failure to do so was a departure from accepted standards of practice.

When Are Doctors Not Required to Disclose a Risk?

There are some exceptions to the general rule that informed consent is required in all medical procedures.

Perhaps the most common exception to the rule is an emergency situation. When a doctor is working quickly to save someone’s life in an emergency, the physician may not be able to obtain the patient’s informed consent, or that of a family member.

In other cases, a doctor may forego informed consent if informing a patient with serious anxiety of a risk could cause the patient to refuse life-saving treatment. However, in this extraordinary type of case, the doctor must be able to explain why disclosing a risk could have caused more harm to the patient than withholding it.

Lack of Informed Consent for Additional Procedures

In some cases, a doctor may recognize an additional problem during a surgery or medical procedure that was not on the consent form. For example, if a doctor is operating on a patient to repair a fractured bone and sees serious nerve damage, the doctor may make the decision to repair the nerve damage, if possible, during the bone surgery.

In this situation, the doctor might have a good reason for going ahead with the nerve damage repair despite not having the patient’s informed consent for the specific additional procedure. Many doctors might explain that requiring the patient to undergo an additional surgery poses a greater risk than simply fixing both problems at the same time. Typically, consent forms deal with this situation by indicating that the patient consents to such additional procedures as the surgeon deems necessary during the operation.

However, assuming the patient suffers even greater damage due to the doctor’s unexpected procedure, this could be a case that rises to the level of a medical malpractice claim. This is particularly true if the patient can legitimately claim that they would have sought alternative treatment if they had been fully informed of the risks.

Given this example, it’s easy to see how medical malpractice cases can be quite challenging and complex. This is why it’s important for patients who have suffered an injury due to a doctor’s mistake to speak to a medical malpractice lawyer as soon as possible.

delivers results.

NYC Medical Malpractice Attorney Jonathan C. Reiter

Jonathan C. Reiter is a leading NYC attorney who handles medical malpractice, doctor errors, wrongful death, aviation accidents, airline injuries & death, truck accidents, MTA, taxi accidents, bus accidents, and construction cases.

(T): 212-736-0979

Home

Sources:

https://www.ama-assn.org/delivering-care/ethics/informed-consent

***ATTORNEY ADVERTISING***

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.

Jonathan C Reiter Law Firm