Why You Need a Medical Malpractice Lawyer
A medical malpractice lawyer assists injured victims get compensation for their losses. The legal system that regulates medical malpractice cases is built on common law.
In common law, doctors are expected to adhere to a certain standard of care when treating patients. If a doctor does not adhere to accepted medical practices and results in death or injury, they may be held responsible for negligence.
Duty of Care
medical malpractice attorneys professionals must follow a set of standards that are accepted by the medical profession as reasonable and prudent in providing medical healthcare. When those standards are not adhered to and the failure results in injuries or health problems, a patient may be able to bring a medical malpractice lawsuit.
The initial step of a malpractice claim is to establish that you had a doctor-patient relationship with the healthcare provider in question and that the person or entity had a legal obligation to act in a reasonable way. Then, you need to prove that the breach of this duty occurred. This is usually done through the recourse to expert witnesses who can provide an objective analysis and assessment of the case.
This expert witness can help determine if the defendant's actions were below the accepted standard in your situation. To allow the expert to make this decision, they will need to be able to examine your medical records and conduct an examination or interview with you.
You should also be able to prove that the breach of duty directly caused the injuries. This is known as causation and it is the third component of a malpractice claim. In most cases, you will need to have an exact cause-and-effect link between the breach of duty and the subsequent injury. For example, a misdiagnosis could lead to the wrong treatment or medication being administered and could result in an adverse reaction such as a heart attack.
Breach of Duty
Like all doctors, doctors have a legal obligation to exercise care and prudence. Doctors are held to an elevated standard, however, because they are medical experts and can make life-or-death decisions. The duty of care is outlined in the regulations and standards that apply to certain kinds of treatments and procedures.
In a negligence case, it is vital to prove that the defendant had an obligation to take care of the plaintiff. It must be proven that the defendant breached that duty of care. This means that the doctor did not meet the standard of care in the particular situation. The standard of care is generally determined by what a reasonable individual would do in the situation. For instance, a reasonable driver would not speed through when there is a red light.
In a malpractice case experts may be required to testify regarding the standard of care that was violated and how this standard was violated. They can also discuss the cause of the injury and suggest ways to have prevented it from happening.
Damages
Physicians in the United States are required to carry malpractice insurance to cover the potential losses that could result from medical negligence. In order to make a claim for damages, the plaintiff has to prove actual financial losses (such as medical expenses and lost wages) and non-economic losses (such as suffering and pain).
The amount you receive from a successful malpractice lawsuit depends on how well your New York medical malpractice attorney will argue for your losses. Your lawyer can establish medically necessary costs by reviewing your medical records, utilizing expert testimony, and collaborating with economic experts. In order to prove your loss of earnings, your medical malpractice lawyer should also establish the number of days you were absent from work because of your medical complications and the fact that the absences were the result of the defendant's negligence.
The non-economic loss can be more difficult to prove and could require the assistance of a professional who will provide evidence of your physical, emotional and mental distress as a result of negligence committed by the defendant. Loss of consortium is another type of non-economic harm. This is the inability of having an intimate, sexual relationship with your spouse or any other significant person in the same way you used to. The lawyer representing the defendant will challenge your non-economic damages with the help of interrogatories and depositions and requests for documents or sworn statements.
Statute of Limitations
As in every state, New York has a statute of limitations that must be met before a medical malpractice claim can be filed. If not the court will decide to dismiss the case. A New York
medical malpractice attorney who is experienced is well-versed in the specifics of these deadlines, and will ensure that your claim is filed before the deadlines set by law.
In the majority of cases, the victim of medical negligence is required to make a claim within two-and-a-half years from the date the act or omission committed by medical professionals caused the injury or death. However like with all laws, there are a few exceptions to this rule. For instance when the error made by the health care professional was part of a continuous course of treatment, the 30-month legally required "clock" will not begin until that course of treatment is completed or until the patient is informed of the diagnosis.
Additionally, in certain situations, such as when a foreign object is left in the body after surgery or treatment, it might not be possible for a patient to discover that there was a problem until much later. In order to deal with this issue, a majority of states have adopted the discovery rule. This allows injured victims in certain situations to extend their deadlines. Your attorney will be aware specific laws in your state and will examine your case's timeline to avoid any administrative errors which could cause delays to your claim.