Why You Need a Medical Malpractice Lawyer
A medical malpractice lawyer helps patients who have suffered injuries receive compensation for their losses. The legal system that governs medical malpractice cases is built on common law.
In the common law, doctors must adhere to the highest standards of care when treating their patients. If a physician does not follow accepted medical practice and it results in an injury or death the doctor could be held accountable for negligence.
Duty of Care
Medical professionals must adhere to a set standard that are accepted by the medical profession as being prudent and reasonable when providing healthcare. A patient may be able to file a lawsuit for medical malpractice if those standards aren’t being met and the breach causes injuries or health complications.
The first step in a malpractice claim involves establishing that you had a doctor-patient relationship with the healthcare provider in question and that the entity or person had a legal obligation to act with reasonable care. The next step is to prove that the breach occurred. This is usually done by an expert witness that can provide an objective analysis and evaluation.
An expert witness can determine whether the defendant’s actions are below the accepted standard in your situation. The expert will need to examine your medical records and interview or examine you in order to determine this.
You also need to establish that the breach of duty directly caused you to suffer injury. Causation is the third factor in a malpractice claim. In most cases, you’ll need a direct cause and result connection between the breach of duty and the resulting injury. A mistake in diagnosis, for instance can result in prescribing the wrong medicine or treatment being administered. This in turn can cause an adverse reaction such as a heart attack.
Breach of Duty
Doctors, just like other individuals, have a legal duty to act with reasonable care and with caution. Doctors are held to an elevated standard, however, because they are medical experts and have the authority to make life-or-death decisions. The obligation of care is found in laws and standards for specific kinds of treatments and procedures.
One of the first elements to be established in a negligence lawsuit is that the defendant was bound by a duty of care to the plaintiff. Then, it must be proved that the defendant violated the duty of care. This means that the doctor failed to meet the standard of care in the specific circumstance. The standard of care is usually determined by what an ordinary person would do in the same circumstances. A reasonable driver, for instance, would not run a traffic light.
In a malpractice lawsuit expert witnesses could be required to testify about the standard of care that was breached and medical malpractice the way in which this standard was violated. They can also discuss what caused the injury and suggest ways to have prevented it.
Damages
In the United States, physicians are required to carry malpractice insurance to cover any losses that may arise from medical negligence. To be able to file a claim the plaintiff will need to show both financial losses (such medical expenses and lost wages), as well as noneconomic losses (such suffering and pain).
The amount of compensation received from a successful lawsuit for malpractice depends on the way in which your New York medical malpractice lawyer can argue for your losses. Your lawyer will establish your medically necessary expenses through a review your medical records, evidence from experts, and the use of economic experts. In order to prove your loss of earnings your medical malpractice lawyer must prove the number of days you were absent from work due to your medical conditions and the fact that these absences were due to the defendant’s negligence.
Non-economic damages are more difficult to prove. You may need assistance from an expert witness who can describe your physical, mental, and emotional pain as an direct result of defendant’s negligence. Other types of non-economic losses include loss of consortium, which is the inability to maintain a loving and sexual relationship in the same way you used to with your spouse or your significant other. The attorney representing the defendant will challenge your non-economic damages through interrogatories and depositions as well as requests for statements and documents under the oath.
Statute of Limitations
Like all states, New York has a statute of limitations that must be fulfilled before a medical malpractice lawyers malpractice case can be filed. Otherwise the court will decide to dismiss the case. A New York medical malpractice attorney who is skilled will be well-versed in the specifics of these deadlines. They will also ensure that your claim is filed within the deadlines stipulated by law.
In most cases, the victim of medical negligence has to bring a suit within two and a half years from the time the act or omission committed by an health professional caused injury or death. As with all laws, this one is not without exceptions. For instance, medical malpractice if the error of the health care provider was part of a continuous course of treatment, the 30 month mandatory “clock” will not start until the treatment is completed or when the patient becomes aware of the diagnosis.
Additionally, in certain instances, such as when a foreign object is left within the body following surgery or treatment, it may not be possible for a patient to realize that there was a problem until much later. In order to solve this issue, the majority of states have implemented the discovery rule. This allows injured victims in certain circumstances to extend their timeframes. Your attorney will be aware specific rules in your state and will carefully examine your case’s timeline to ensure that there are no administrative mistakes that could delay your claim.