Why You Need a Medical Malpractice Lawyer
A
medical malpractice lawyer assists injured patients get compensation for their losses. The legal system that governs medical malpractice cases is built on common law.
In the common law, doctors are expected to adhere to a certain standard of care when treating patients. If a doctor is not following the accepted medical norms and causes an injury or death, he may be liable for negligence.
Duty of Care
Medical professionals must adhere to set standards that are accepted by the medical profession as reasonable and prudent when providing medical care. A patient could be eligible to file a claim for medical malpractice if these standards aren't being met and the failure causes injury or health complications.
The first thing to do in a case of malpractice is to prove that you were a client of the healthcare provider and that they had a duty to act in a fair manner. The next step is to prove that the breach occurred. This is typically done with the use of expert testimony that can provide an objective analysis and evaluation of the case.
This expert witness can help determine whether the defendant's actions are not in line with the accepted standards in your situation. To enable the expert to arrive at this conclusion they must be able to look over your medical records and conduct an examination or interview with you.
You must also show that the breach directly led to your injury. Causation is the third element in a claim for malpractice. In most instances, you'll need to have an obvious cause-and effect relationship between the breach of duty and subsequent injury. For instance, a mistake in diagnosis could result in the wrong treatment or medication being administered, which can result in an adverse reaction, like a heart attack.
Breach of Duty
Just like everyone else who are legally obligated to act, doctors also have an obligation to exercise diligence and care. Doctors are held to a higher standard, however, because they are medical experts and can make life-or-death decisions. The obligation of care is defined in the law and standards that apply to certain types of treatments and procedures.
One of the most important elements that must be proven in a negligence claim is that the defendant was bound by a duty of care to the plaintiff. It must be proven that the defendant violated this duty of care. This means that the doctor failed to live up to the standard of care applicable to the situation. The standard of care is generally determined by what a reasonable individual would do in the same situation. A reasonable driver, for example would not use at a traffic light.
In a lawsuit involving a malpractice experts may be required to testify about the standard of care that was not met and how the standard was breached. They can also describe what caused the injury and suggest ways to have prevented it.
Damages
In the United States, physicians are required to carry malpractice insurance to protect themselves against any loss that may result due to medical negligence. In order to file a claim, the plaintiff must demonstrate both financial losses (such medical expenses and lost wages) in addition to noneconomic losses (such pain and suffering).
The amount of compensation you receive from a successful malpractice suit depends on how well your New York medical malpractice attorney will argue for your losses. Your lawyer can establish medically necessary expenses by examining your medical records, using expert testimony and consulting economic experts. For the loss of your earnings, your medical malpractice lawyer must show the number of times you were away from work due to medical conditions and the fact that these absences resulted from the defendant's negligence.
Non-economic losses are more difficult to prove and may require the help of a professional who can testify about your physical, emotional and mental suffering because of the infractions committed by the defendant. Loss in consortium is another type of non-economic injury. It is the inability to have an intimate relationship with your spouse or other significant person in the same way you once did. The defendant's lawyer will challenge your non-economic damages with the help of interrogatories, depositions, as well as requests for documents and sworn declarations.
Statute of Limitations
In New York, as with every state, there are definite deadlines - commonly referred to as statutes of limitations - within which a medical negligence lawsuit must be filed or otherwise it will be rejected by the courts. An experienced New York
medical malpractice lawyer is well-versed in these details and will ensure your claim is filed prior to the deadlines set by law.
In the majority of cases, a victim of medical negligence is required to make a claim within two-and-a-half years from the time the act or omission committed by medical professionals resulted in death or injury. However like with all laws there are some exceptions to this rule. For instance if the error by the health professional was part of a continuous course of treatment, the 30-month mandatory "clock" will not begin until the course of treatment is complete or the patient is informed of the diagnosis.
Additionally, in certain situations, such as when a foreign object is left within the body following surgery or treatment, it might not be possible for a patient or patient's family to determine that there was a problem until much later. To solve this issue, the majority of states have implemented what is known as the discovery rule. This permits injured victims in certain circumstances to extend their deadlines. Your lawyer will be aware of the specific laws of your state and will carefully look over your case's timeline in order to avoid administrative errors that can derail your claim.