S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   2368
 
                        2023-2024 Regular Sessions
 
                             I N  S E N A T E
 
                             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:
 
   Section  1.  Section 474-a of the judiciary law, as amended by chapter
 485 of the laws of 1986, is amended to read as follows:
   § 474-a. Contingent fees  for  attorneys  in  claims  or  actions  for
 medical,  dental  or  podiatric  malpractice. 1. For the purpose of this
 section, the term "contingent fee" shall mean any attorney's fee in  any
 claim  or  action  for medical, dental or podiatric malpractice, whether
 determined by judgment or settlement, which is dependent in whole or  in
 part  upon  the success of the prosecution by the attorney of such claim
 or action, or which is to consist of a percentage of any recovery, or  a
 sum equal to a percentage of any recovery, in such claim or action.
   2. Notwithstanding any inconsistent judicial rule, a contingent fee in
 a  medical,  dental or podiatric malpractice action shall not exceed the
 amount of compensation provided for in the following schedule:
   [30] 33.33 percent of the first [$250,000] $500,000 of the sum  recov-
 ered;
   [25] 30 percent of the next [$250,000] $500,000 of the sum recovered;
   [20] 25 percent of the next $500,000 of the sum recovered;
   [15]  20  percent of [the next $250,000] ANY AMOUNT OVER $1,500,000 of
 the sum recovered[;
   10 percent of any amount over $1,250,000 of the sum recovered].
   3. Such percentages shall be computed on the net sum  recovered  after
 deducting  from  the  amount  recovered  expenses  and disbursements for
 expert testimony and investigative or other services properly chargeable
 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
 
 ing the fee, the costs as taxed, including  interest  upon  a  judgment,
 shall  be  deemed  part  of the amount recovered.   For the following or
 similar items there shall be no deduction in computing such percentages:
 liens,  assignments  or  claims in favor of hospitals, for medical care,
 dental care, podiatric care and treatment by doctors and nurses,  or  of
 self-insurers or insurance carriers.
   4.  In  the  event that claimant's or plaintiff's attorney believes in
 good faith that THAT  HE OR SHE IS ENTITLED TO GREATER COMPENSATION THAN
 the fee schedule set forth in subdivision two of this section[,  because
 of  extraordinary  circumstances,  will  not  give  him adequate compen-
 sation,] PROVIDES, AN application for greater compensation may  be  made
 upon affidavit with written notice and an opportunity to be heard to the
 claimant  or plaintiff and other persons holding liens or assignments on
 the recovery. Such application shall be made to the justice of the trial
 part to which the action had been sent for trial; or, if it had not been
 sent to a part for trial, then to the justice  presiding  at  the  trial
 term calendar part of the court in which the action had been instituted;
 or,  if  no action had been instituted, then to the justice presiding at
 the trial term calendar part of the Supreme Court for the county in  the
 judicial  department  in  which  the  attorney  has an office. Upon such
 application, the justice, in his OR HER  discretion[,  if  extraordinary
 circumstances  are found to be present, and without regard to the claim-
 ant's or plaintiff's consent,] may fix as  reasonable  compensation  for
 legal  services  rendered  an  amount greater than that specified in the
 schedule set forth in subdivision two of this section, provided,  howev-
 er,  that such greater amount shall not exceed the fee fixed pursuant to
 the contractual arrangement, if any, between the claimant  or  plaintiff
 and  the  attorney.    FACTORS TO BE CONSIDERED BY THE COURT IN ORDER TO
 GRANT THE APPLICATION FOR AN ENHANCED  FEE  SHALL  INCLUDE  WHETHER  THE
 PERFORMANCE  OF  THE  ATTORNEY  WAS  SUPERIOR,  TAKING  INTO ACCOUNT THE
 ATTENDANT CIRCUMSTANCES INCLUDING THE RESULT OF THE CASE IN LIGHT OF THE
 NATURE OF THE LIABILITY AND DAMAGES ISSUES, AND WHETHER THE CLAIMANT  OR
 PLAINTIFF  CONSENTS; PROVIDED THAT THE GRANTING OF THE APPLICATION SHALL
 NOT BE CONTINGENT ON SUCH CONSENT, AND PROVIDED FURTHER, THAT THE ATTOR-
 NEY NEED NOT SUBMIT THE NUMBER OF HOURS EXPENDED. If the application  is
 granted,  the  justice  shall  make a written order accordingly, briefly
 stating the reasons for granting the greater compensation; and a copy of
 such order shall be served on all persons entitled to receive notice  of
 the application.
   5.  A  CLAIMANT  OR  PLAINTIFF MAY WAIVE THE PERCENTAGE LIMITATIONS OF
 SUBDIVISION TWO OF THIS SECTION IF A CLAIMANT OR  PLAINTIFF  VOLUNTARILY
 CHOOSES  TO  DEVIATE  FROM THE PERCENTAGE LIMITATIONS SPELLED OUT IN THE
 MEDICAL MALPRACTICE RETAINER. IN NO EVENT SHALL THE  ATTORNEY'S  FEE  BE
 GREATER THAN 33.33 PERCENT OF THE AMOUNT RECOVERED.
   6.  Any  contingent  fee  in  a claim or action for medical, dental or
 podiatric malpractice brought on behalf of an infant shall  continue  to
 be  subject  to  the  provisions of section four hundred seventy-four of
 this chapter.
   § 2. This act shall take effect immediately.