Why You Need a Medical Malpractice Lawyer
A medical malpractice lawyer helps injured patients receive compensation for their losses. The legal system that governs
medical malpractice cases is built on common law.
Under common law, doctors are expected to adhere to a certain level of care when treating patients. If a doctor deviates from accepted medical practice and it results in a death or injury or even death, he could be held responsible for negligence.
Duty of Care
Medical professionals must adhere to set of standards which are recognized by the medical profession as being reasonable and prudent in providing medical care. When those standards are not met and that failure causes harm or health issues the patient may be able to bring a medical malpractice lawsuit.
The first thing to do in a case of malpractice is to establish that you were a client of the healthcare provider and that they were bound to act in a reasonable manner. Then, you need to prove that the breach of this duty occurred. This is usually done through the use of expert testimony who can provide an objective analysis and evaluation of the situation.
This expert witness can help determine if the defendant's actions were below the accepted standard in your case. The expert will need to review your medical records, and also interview or question you in order to determine this.
It is also necessary to prove that the breach of duty directly caused you to suffer injuries. This is known as causation, and it is the third requirement of a negligence claim. In most cases, you will need to have an exact cause-and-effect link between the breach of duty and subsequent injury. A misdiagnosis for instance can result in prescriptions for the wrong drug or treatment being administered. This in turn can cause an adverse reaction such as a heart attack.
Breach of Duty
Doctors, just like other people, are legally bound by a obligation to exercise reasonable care and prudence. Doctors are held to higher standards however, since they are medical experts and can make life-or-death decisions. The duty of care is outlined in the laws and standards that apply to certain kinds of treatments and procedures.
One of the first things to be established in a negligence claim is that the defendant owed a duty of care to the plaintiff. It must be proven that the defendant breached this obligation of care. This means that the doctor did not meet the standard of care in this particular situation. The quality of care is usually determined by what a reasonable individual would do in the same situation. For instance, a prudent driver wouldn't run a red light.
In a lawsuit involving a malpractice expert witnesses could be required to testify about the standard of care that was breached and how the standard was breached. They can also explain the reason behind the accident and what could have prevented it from happening.
Damages
In the United States, physicians are required to carry malpractice insurance to cover any loss that may result due to medical negligence. In order to submit an action for damages, the plaintiff has to prove actual financial losses (such as medical expenses and lost wages) and non-economic losses (such as pain and suffering).
The amount of compensation you receive from a successful suit for malpractice is contingent upon how well your New York medical malpractice attorney argues for your losses. Your lawyer can establish medically required costs by looking over your medical records, utilizing experts' testimony, and consulting economic experts. Your
medical malpractice attorney must prove the loss of your earnings by proving the amount of days that you missed working due to medical problems, and proving that these missed days were the result of 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 forms of non-economic damages include loss of consortium, which is the inability to maintain a romantic and sexual relationship as you did with your spouse or your significant other. The defendant's lawyer will challenge your non-economic damages in the form of interrogatories and depositions and also requests for documents and sworn declarations.
Statute of limitations
As in every state, New York has a statute of limitations that must be fulfilled before a medical malpractice lawsuit can be filed. Otherwise the court could dismiss the case. An experienced New York medical malpractice lawyer is well-versed in these details and will ensure your claim is filed before the deadlines that are set by law.
In most cases, a victim of medical malpractice must file his or her lawsuit within two and a half years from the date that the negligence or act of a medical professional resulted in the death or injury. As with all laws this law is not without exceptions. For instance in the event that the error made by the health care professional was part of an ongoing course of treatment, the 30 month legal "clock" will not begin until that course of treatment is completed or when the patient becomes aware of the diagnosis.
In certain instances it is possible that a patient will not recognize the problem until a considerable time later, for example the case where a foreign body is left in the body following surgery or treatment. Because of this, many states have enacted a legal concept called the discovery rule, which allows injured victims to extend these deadlines in certain instances. Your lawyer will be aware of the specific laws of your state and will look over your case's timeline in order to avoid any administrative errors that can derail your claim.