Bill Text: NY S02368 | 2023-2024 | General Assembly | Introduced

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Bill Title: Updates contingent fee rules for attorneys in claims or actions for medical, dental or podiatric malpractice; permits applications for enhanced fees; permits plaintiffs to waive contingent retainer limitations.

Spectrum: Partisan Bill (Democrat 1-0)

Status: (Introduced - Dead) 2024-01-03 - REFERRED TO JUDICIARY [S02368 Detail]

Download: New_York-2023-S02368-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          2368

                               2023-2024 Regular Sessions

                    IN SENATE

                                    January 20, 2023
                                       ___________

        Introduced  by  Sen.  BAILEY -- read twice and ordered printed, and when
          printed to be committed to the Committee on Judiciary

        AN ACT to amend the judiciary law, in  relation  to  reform  and  update
          contingent  fee  rules for attorneys in claims or actions for medical,
          dental or podiatric malpractice

          The People of the State of New York, represented in Senate and  Assem-
        bly, do enact as follows:

     1    Section  1.  Section 474-a of the judiciary law, as amended by chapter
     2  485 of the laws of 1986, is amended to read as follows:
     3    § 474-a. Contingent fees  for  attorneys  in  claims  or  actions  for
     4  medical,  dental  or  podiatric  malpractice. 1. For the purpose of this
     5  section, the term "contingent fee" shall mean any attorney's fee in  any
     6  claim  or  action  for medical, dental or podiatric malpractice, whether
     7  determined by judgment or settlement, which is dependent in whole or  in
     8  part  upon  the success of the prosecution by the attorney of such claim
     9  or action, or which is to consist of a percentage of any recovery, or  a
    10  sum equal to a percentage of any recovery, in such claim or action.
    11    2. Notwithstanding any inconsistent judicial rule, a contingent fee in
    12  a  medical,  dental or podiatric malpractice action shall not exceed the
    13  amount of compensation provided for in the following schedule:
    14    [30] 33.33 percent of the first [$250,000] $500,000 of the sum  recov-
    15  ered;
    16    [25] 30 percent of the next [$250,000] $500,000 of the sum recovered;
    17    [20] 25 percent of the next $500,000 of the sum recovered;
    18    [15]  20  percent of [the next $250,000] any amount over $1,500,000 of
    19  the sum recovered[;
    20    10 percent of any amount over $1,250,000 of the sum recovered].
    21    3. Such percentages shall be computed on the net sum  recovered  after
    22  deducting  from  the  amount  recovered  expenses  and disbursements for
    23  expert testimony and investigative or other services properly chargeable
    24  to the enforcement of the claim or prosecution of the action. In comput-

         EXPLANATION--Matter in italics (underscored) is new; matter in brackets
                              [ ] is old law to be omitted.
                                                                   LBD03287-01-3
        S. 2368                             2

     1  ing the fee, the costs as taxed, including  interest  upon  a  judgment,
     2  shall  be  deemed  part  of the amount recovered.   For the following or
     3  similar items there shall be no deduction in computing such percentages:
     4  liens,  assignments  or  claims in favor of hospitals, for medical care,
     5  dental care, podiatric care and treatment by doctors and nurses,  or  of
     6  self-insurers or insurance carriers.
     7    4.  In  the  event that claimant's or plaintiff's attorney believes in
     8  good faith that that  he or she is entitled to greater compensation than
     9  the fee schedule set forth in subdivision two of this section[,  because
    10  of  extraordinary  circumstances,  will  not  give  him adequate compen-
    11  sation,] provides, an application for greater compensation may  be  made
    12  upon affidavit with written notice and an opportunity to be heard to the
    13  claimant  or plaintiff and other persons holding liens or assignments on
    14  the recovery. Such application shall be made to the justice of the trial
    15  part to which the action had been sent for trial; or, if it had not been
    16  sent to a part for trial, then to the justice  presiding  at  the  trial
    17  term calendar part of the court in which the action had been instituted;
    18  or,  if  no action had been instituted, then to the justice presiding at
    19  the trial term calendar part of the Supreme Court for the county in  the
    20  judicial  department  in  which  the  attorney  has an office. Upon such
    21  application, the justice, in his or her  discretion[,  if  extraordinary
    22  circumstances  are found to be present, and without regard to the claim-
    23  ant's or plaintiff's consent,] may fix as  reasonable  compensation  for
    24  legal  services  rendered  an  amount greater than that specified in the
    25  schedule set forth in subdivision two of this section, provided,  howev-
    26  er,  that such greater amount shall not exceed the fee fixed pursuant to
    27  the contractual arrangement, if any, between the claimant  or  plaintiff
    28  and  the  attorney.    Factors to be considered by the court in order to
    29  grant the application for an enhanced  fee  shall  include  whether  the
    30  performance  of  the  attorney  was  superior,  taking  into account the
    31  attendant circumstances including the result of the case in light of the
    32  nature of the liability and damages issues, and whether the claimant  or
    33  plaintiff  consents; provided that the granting of the application shall
    34  not be contingent on such consent, and provided further, that the attor-
    35  ney need not submit the number of hours expended. If the application  is
    36  granted,  the  justice  shall  make a written order accordingly, briefly
    37  stating the reasons for granting the greater compensation; and a copy of
    38  such order shall be served on all persons entitled to receive notice  of
    39  the application.
    40    5.  A  claimant  or  plaintiff may waive the percentage limitations of
    41  subdivision two of this section if a claimant or  plaintiff  voluntarily
    42  chooses  to  deviate  from the percentage limitations spelled out in the
    43  medical malpractice retainer. In no event shall the  attorney's  fee  be
    44  greater than 33.33 percent of the amount recovered.
    45    6.  Any  contingent  fee  in  a claim or action for medical, dental or
    46  podiatric malpractice brought on behalf of an infant shall  continue  to
    47  be  subject  to  the  provisions of section four hundred seventy-four of
    48  this chapter.
    49    § 2. This act shall take effect immediately.