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.

Medical Error Deaths Might be Undercounted, Study Reports

Medical errors are the third leading cause of death in the United States, after heart disease and cancer, accounting for more than 250,000 deaths every year, according to a recent, nationwide study. However, the study’s authors note that such figures could be even higher since death certificates in the United States do not include medical errors as a cause of death.

“We believe this (data) understates the true incidence of death due to medical error because the studies cited rely on errors extractable in documented health records and include only inpatient deaths,” the study’s authors wrote in the article published by The BMJ, a peer-reviewed, medical journal previously known as The British Medical Journal.

Johns Hopkins University School of Medicine Associate Professor, Dr. Martin A. Makary, and Johns Hopkins research fellow Michael Daniel conducted the study and wrote the BMJ article analyzing medical errors. Makary and Daniel based their findings on four, large studies analyzing cause of death statistics compiled by the Centers for Disease Control and Prevention (CDC) since 1999, according to The Washington Post. Using such data, the authors then created nationwide estimates for medical errors based on the total number of hospital admissions in 2013, according to CNBC.

Doctors, medical examiners, funeral directors and corners have a long list of choices for “cause of death” when filling out a death certificate. However, there is no official disease code for “medical errors” on the causes of death list on death certificates. As a result, the CDC and other government agencies do not track how many patients die as a result of medical errors, according to CNBC.

“Humans will always make mistakes, and we shouldn’t expect them not to,” Makary said in an interview with The New York Times. “But we can engineer safe medical care to create the safety nets and protocols to address the human factor. Measuring the magnitude of the problem is the first step.”

As part of their study, Makary and Daniel cited the case of a woman who died as a result of mistakes made during tests conducted by health care professionals. Specifically, the autopsy found that the woman died due to internal bleeding caused by a needle accidentally inserted into the women’s liver. However, the cause of death was listed as cardiovascular related, not due to a medical error.

Analysis of medical malpractice lawsuits reveals possible patterns

As part of their research, Makary and Daniel also analyzed data complied by The Doctors Company, a physician-owned medical malpractice insurance company. The Doctors Company reviewed more than 10,000 medical malpractice lawsuits in an effort to find possible patterns in such cases and determine if there are ways to prevent similar injuries in the future.

By reviewing past medical malpractice cases, the researchers with The Doctors Company were able to notice trends that would have otherwise been missed. Some hospitals and other medical professionals changed their practices based on such findings in an effort to improve the level of care. This includes Bassett Healthcare Network in Cooperstown, New York, which used data from closed, medical malpractice claims to create a registry of such cases, according to The Wall Street Journal. By doing so, Bassett Healthcare Network has been able to better educate patients about the risks associated with certain medications. In the past, some patients were not properly educated about the risks of taking such medications, according to Bassett’s analysis of previous medical malpractice lawsuits.

“This has really transformed my practice,” Sandeep Mangalmurti, a noninvasive cardiologist affiliated with Bassett Healthcare Network, said to The Wall Street Journal.

But more needs to be done in hospitals nationwide to prevent such preventable causes of death, according to The Doctors Company and Makary and Daniel. And even when medical professionals clearly make mistakes resulting in the death of a patient, many surgeons, doctors and other health care providers are reluctant to admit wrongdoing. That’s why many families choose to hire a medical malpractice lawyer to represent their family in such legal proceedings. Otherwise, the family might not receive the financial compensation they deserve for medical bills, lost income, lost future earnings and other expenses often associated with the death of a loved one due to medical errors.

Such cases are about more than just money, though. By filing a wrongful death lawsuit against a hospital or individual medical professional, such legal action could change the hospital’s negligent practices and prevent similar injuries or illnesses in the future.

Jonathan C. Reiter NYC Injury Lawyer

New York City Personal Injury Lawyer / Aviation Accident Attorney