Why You Need a Medical Malpractice Lawyer
A medical malpractice lawyer helps injured victims receive compensation for their losses. The common law system regulates medical malpractice lawsuits.
According to common law, doctors are required to follow a certain standard of care when treating patients. If a doctor does not adhere to accepted medical procedures and results in injury or death the doctor could be held accountable for negligence.
Duty of Care
Medical professionals must adhere to set of standards which are recognized by the medical profession as sensible and prudent in providing healthcare. If the standards aren't met and that failure causes harm or health issues the patient could have grounds to file a medical malpractice lawsuit.
The first thing to do in a malpractice case is to establish that you were a client of the healthcare provider and that they were bound to act reasonably. Then, you must show that a breach of that duty occurred. This is usually done by the use of expert testimony which can provide a objective analysis and evaluation.
The expert witness will help determine whether the defendant's actions are not in line with the accepted standards in your particular case. The expert will review your medical records, and interview or examine you to arrive at this conclusion.
You also need to prove that the breach of duty caused the injuries. Causation is the 3rd element in a malpractice lawsuit. In the majority of cases, you'll require a direct cause-and- result connection between the breach of duty and the subsequent injury. A mistake in diagnosis, for instance, could lead to the wrong medication being prescribed or treatment being given. This in turn can result in an adverse reaction such as a heart attack.
Breach of Duty
As with all other professionals who are legally obligated to act, doctors also have an obligation to act with care and caution. Doctors are held to a higher standard but because they are medical experts and can make life-or-death decisions. The duty of care is outlined in the laws and standards which are applicable to specific types of treatments and procedures.
In a negligence case, it is essential to establish that the defendant owed the obligation of taking care of the plaintiff. Then, it needs to be proved that the defendant did not fulfill that duty of care. This means that the doctor failed to adhere to the standard of care appropriate to the circumstances. The standard of care is usually defined by what an average person would do in similar situations. For example the reasonable driver would not stop at an intersection with a red light.
In a malpractice case experts are usually needed to testify on the standard of care and the way in which it was violated. They can also provide a detailed explanation of how the injury was caused and what could have been done to avoid it from happening.
Damages
In the United States, physicians are required to have malpractice insurance to cover any damages that could result from medical negligence. To submit a claim for damages, the plaintiff must prove both actual financial losses (such as
medical malpractice lawyers expenses and lost wages) as well as non-economic losses (such as pain and suffering).
The amount of compensation you receive from a successful suit for malpractice depends on how well your New York medical malpractice attorney will argue for your losses. Your attorney can establish the medically necessary expenses by examining your medical records, using expert testimony and consulting economic experts. In order to establish your loss of earnings your medical malpractice lawyer must also show the number of times you missed work due to your medical condition and also the fact that these days off work resulted from the negligence of the defendant.
Non-economic damages can be harder to prove. You may need the assistance of an expert witness who can provide details of your mental, physical, and emotional suffering as an direct result of defendant's negligence. Other forms of non-economic damages include loss of consortium, which is an inability to maintain a sexually satisfying and loving relationship like you used to with your spouse or significant other. The defendant's attorney will challenge the non-economic damages you suffer through interrogatories and depositions as well as demands for documents and declarations under oath.
Statute of limitations
Like every state, New York has a statute of limitations that must be fulfilled before a medical malpractice case can be filed. If not, the court will dismiss the case. A New York
medical malpractice attorney who is experienced will be well-versed in the specifics of these deadlines and ensure that your claim is filed within the deadlines set forth by law.
In the majority of instances, the victim of medical malpractice must bring a lawsuit within two and a half years of the date when the negligence or act of a medical professional resulted in the death or injury. However, as with all laws there are some exceptions to this rule. For instance if the error of the health care provider was part of an ongoing course of treatment, the 30-month legal "clock" will not start until the course of treatment is completed or until the patient is informed of the diagnosis.
In certain instances the patient may not recognize the problem until a considerable time later, for example when a foreign object remains in the body following surgery or treatment. To tackle this issue, the majority of states have adopted what is known as the discovery rule. This permits injured victims in certain circumstances to extend their deadlines. Your attorney will know the specific laws of your state, and will carefully go over the timeline of your case to avoid any administrative errors that could delay your claim.