Why You Need a Medical Malpractice Lawyer
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medical malpractice lawyer can help injured victims get compensation for their losses. The legal system that regulates medical malpractice cases is built on common law.
In the common law, doctors must observe the standard of care when treating their patients. If a doctor does not adhere to accepted medical practices and results in injury or death, then he could be held liable for negligence.
Duty of Care
Medical professionals are expected to adhere to a set standards accepted by the medical industry as being reasonable and prudent in providing medical treatment. If those standards are not met and that failure causes injuries or health problems patients may be able to bring a medical malpractice lawsuit.
The first element of a malpractice claim involves establishing that you had an arrangement with a doctor-patient healthcare provider and that the person or entity owed you a duty to act in a reasonable manner. Then, you need to prove that a breach of that duty occurred. This is usually done using expert testimony that can provide an objective analysis and evaluation.
The expert witness will be able to determine if the defendant's actions are in violation of the standard of care that is accepted in your particular situation. The expert will need to look over your medical records and then interview or testify against you in order to arrive at this conclusion.
You must also show that the breach directly caused your injury. Causation is a third element in a malpractice lawsuit. In the majority of cases, you will require a direct cause and effect relationship between the breach of duty and the subsequent injury. A misdiagnosis for instance one, could result in prescribing the wrong medication or treatment being given. This in turn can cause a negative reaction such as heart attacks.
Breach of Duty
Like everyone else medical professionals, doctors are under a legal obligation to act with diligence and care. However, doctors are held to a higher standard due to the fact that they are considered experts in medicine and have to make life and death decisions. The obligation of care is found in the laws and standards that govern specific types of treatments and procedures.
In a case of negligence it is vital to prove that the defendant owed the duty of care for the plaintiff. It must be proven that the defendant did not fulfill this duty of care. This means that the doctor failed to meet the standard of care in this particular circumstance. The standard of care is typically determined by what an ordinary person would do in similar circumstances. A reasonable driver, for instance will not go through a traffic light.
In a malpractice lawsuit experts could be needed to testify on the standard of care that was not met and the way in which this standard was violated. They can also describe how the injury was caused and what could have been done to prevent it from occurring.
Damages
Physicians in the United States are required to carry malpractice insurance to cover their potential losses due to medical negligence. In order to file a claim, the plaintiff must prove both financial losses (such medical expenses and lost wages) as well as noneconomic losses (such suffering and pain).
The amount you are awarded from a successful malpractice lawsuit is contingent upon how your New York
medical malpractice lawyer can argue for your losses. Your attorney can determine your medically required expenses by examining your medical records, the testimony of experts and the assistance of economic experts. Your medical malpractice lawyer must prove that you lost your earnings by proving the amount of days you were away from work due your medical problems, and proving the fact that these days were the result of the negligence of the defendant.
Non-economic losses can be more difficult to prove and could require the help of a professional who can be able to testify about your physical, emotional and mental suffering due to the negligence of the defendant. Other types of non-economic losses include loss of consortium, which is an inability to maintain a sexually satisfying and loving relationship as you once could with your spouse or significant other. The attorney representing the defendant will challenge your non-economic damages through interrogatories, depositions, and requests for documents and statements under the oath.
Statute of limitations
As in every state, New York has a statute of limitations that must be met before a medical malpractice case can be filed. Otherwise the court will decide to dismiss the case. An experienced New York medical malpractice lawyer is well-versed in these details and will ensure that your case is filed within the deadlines set by law.
In the majority of cases, a victim of medical malpractice must bring a lawsuit within two and a half years of the date on which the act or omission of a healthcare professional caused the injury or death. Like all laws, this law is not without exceptions. If, for instance, the error made by the health care provider was part of a continuing treatment plan, then the "clock" of 30 months will not begin until the treatment is completed or the patient is informed of the diagnosis.
In certain instances it is possible that a patient will not recognize the problem until quite a while later for instance when a foreign object is left in the body following surgery or treatment. In order to tackle this issue, the majority of states have embraced 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 avoid administrative errors which could cause delays to your claim.