Why You Need a Medical Malpractice Lawyer
A medical malpractice lawyer assists injured victims receive compensation for their losses. The common law system governs
medical malpractice lawsuits.
In common law, doctors must observe a standard of care in treating their patients. If a doctor violates accepted medical procedures and results in injury or death, they could be held accountable for negligence.
Duty of Care
Medical professionals are expected to adhere to a set standard accepted by the medical industry as being reasonable and prudent when providing healthcare. Patients may be able to file a lawsuit for
medical malpractice if the standards aren't met and the result is injury or health complications.
The first element in a malpractice lawsuit is to prove that you were a patient of the healthcare provider and that they owed you an obligation to act reasonably. Then, you need to prove the breach of the 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 will be able to help determine whether or not the defendant's actions fell below the standard of care that is accepted in your particular case. The expert will review your medical records, and interview or examine you in order to determine this.
You should also be able to establish that the breach of duty directly led you to suffer injuries. Causation is the third factor in a claim for malpractice. In most cases, you will require an exact cause-and-effect link between the breach of duty and subsequent injury. For instance, a mistake in diagnosis could result in the wrong treatment or medication being administered and that can result in an adverse reaction such as a heart attack.
Breach of Duty
As with all other professionals medical professionals, doctors are under a legal obligation to exercise the utmost care and caution. Doctors are held to higher standards due to the fact that they are medical experts and make life-or-death decisions. The duty of care is outlined in the regulations and standards that are situated for specific types of procedures and treatments.
One of the primary elements that needs to be established in a negligence case is that the defendant was bound by a duty of care to the plaintiff. It must be proved that the defendant did not fulfill this duty of care. This means that the doctor failed to live up to the standard of care for the situation. The standard of care is generally determined by what a reasonable person would do under the circumstances. A reasonable driver, for instance would not use an intersection at a stoplight.
In a case of malpractice, expert witnesses are typically required to testify about the standard of care and the manner in which it was breached. They can also describe the reason behind the injury and explain how they could have prevented it from happening.
Damages
Physicians in the United States are required to carry malpractice insurance to cover the risk of losses resulting from medical negligence. To file a lawsuit, the plaintiff must show both financial losses (such medical expenses and lost wages) as well as non-economic losses (such pain and suffering).
The amount of compensation received from a successful malpractice suit is contingent on the way in which your New York medical malpractice lawyer presents the case for your losses. Your attorney will be able to establish the medically necessary expenses through a thorough review of your medical records, the testimony of experts and the use of economic experts. In order to establish your loss of earnings your medical malpractice lawyer should also show the number of times you were off work due to your medical conditions and the fact that these days off work were due to the negligence of the defendant.
Non-economic losses are more difficult to prove and may require the assistance of a professional who can provide evidence of your physical, emotional, and mental suffering as a result of negligence of the defendant. Loss of consortium is another type of non-economic damage. It is the inability to have a romantic, sexual connection with your spouse, or any other significant individual as you used to. The lawyer for the defendant will attempt to challenge the non-economic damages you suffer through depositions, interrogatories, and requests for statements and documents under the oath.
Statute of Limitations
In New York, as with every state, there are definite time limits - commonly known as statutes or limitations within which a medical malpractice lawsuit must be filed otherwise it will be rejected by the courts. A seasoned New York medical malpractice lawyer is familiar with these nuances and will ensure your claim is filed by the deadlines established by law.
In most cases, the victim of medical negligence has to file a lawsuit within two-and-ahalf years from the time the act or omission of a health care provider caused injury or death. However like all laws, there are a few exceptions to this rule. For instance, if the error of the health professional was part of a continuing course of treatment, then the "clock" of 30 months cannot begin until the course of treatment is completed or the patient is informed of the diagnosis.
In certain instances patients may not be aware of the issue until a long time after, for example the case where a foreign body remains within the body after surgery or treatment. Because of this, many states have enacted the legal concept known as the discovery rule, which allows injured victims to extend deadlines under certain circumstances. Your attorney will be aware of specific laws in your state and will carefully examine your case's timeline to avoid administrative errors which could cause delays to your claim.