Why You Need a Medical Malpractice Lawyer
A medical malpractice lawyer can help injured victims get compensation for their losses. The legal system that regulates medical malpractice cases is founded on common law.
In common law, doctors are expected to adhere to a specific standard of care when treating patients. If a physician violates accepted medical practices and results in death or injury, they may be held responsible for negligence.
Duty of Care
Medical professionals must follow a set of standards that are accepted by the medical profession as being prudent and reasonable when they provide healthcare. A patient might be able to file a lawsuit against a medical professional if those standards aren’t followed and the breach causes injuries or health problems.
The first thing to do in a malpractice lawsuit is to establish that you were a client of the healthcare provider and that they had a duty to act in a reasonable manner. Then, you need to prove that a breach of that duty occurred. This is usually done through the use of experts who can provide an objective analysis and assessment of the situation.
The expert witness will help determine if the defendant’s actions were below the accepted standard in your particular case. In order for the expert to make this decision, they will need to be able review your medical records and conduct an examination or interview of you.
You must be able to prove that the breach directly led to your injury. Causation is the third factor 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 example may result in prescribing the wrong medicine or treatment being administered. This in turn can result in an adverse reaction such as a heart attack.
Breach of Duty
Like all people, are legally bound by a duty to act with reasonable care and caution. Doctors are held to higher standards, however, because they are medical experts and can make life-or-death decisions. The obligation of care is defined in the rules and regulations that govern specific types of procedures and treatments.
In a case of negligence, it is vital to prove that the defendant owed the duty of care for the plaintiff. Then, it has to be proven that the defendant violated that duty of care. This means that the doctor did not live up to the standard of care in the particular situation. The standard of care is usually determined by what an ordinary person would do in the same circumstances. A reasonable driver, for instance, would not run a traffic light.
In a lawsuit involving a malpractice expert witnesses could be required to testify about the standard of care that was not met and the way in which this standard was breached. They can also explain the cause of 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. In order to file a claim, the plaintiff will need to prove both financial losses (such medical expenses and lost wages), as well as non-economic losses (such pain and Medical malpractice suffering).
The amount of compensation you receive from a successful lawsuit for malpractice is contingent on how your New York medical malpractice lawyer defends your losses. Your lawyer can prove your medically necessary expenses through a review your medical records, evidence from experts as well as the assistance of economic experts. For your loss of earnings your medical malpractice lawyer must also demonstrate the number of days you were off work due to medical conditions and the fact that these missed work days were the result of the defendant’s negligence.
Non-economic damages can be difficult to prove. You may need assistance from an expert witness who can describe your mental, physical, and emotional pain as a direct result of the defendant’s negligence. Other forms of non-economic damages include loss of consortium, which is the inability to maintain a loving and sexual relationship as you once could with your spouse or your significant other. The defendant’s lawyer will challenge your non-economic damages in the form of interrogatories, depositions, along with requests for documents or sworn statements.
Statute of Limitations
In New York, as with every state, there are certain time limits – commonly known as statutes of limitation within which a medical malpractice lawsuit must be filed otherwise it will be rejected by the courts. A New York medical malpractice attorney who is knowledgeable will be familiar with the specifics of these deadlines, and will ensure that your claim is filed before the deadlines specified by law.
In the majority of cases, the victim of medical negligence must be able to file a lawsuit within two and a half years of the date that the act or omission of an health professional resulted in the injury or death. As with all laws this rule has its exceptions. If, for instance, the error of the health professional was part of a continuous course of treatment, the “clock” of 30 months won’t start until the treatment is completed or the patient has been informed of the diagnosis.
In some instances like when a foreign object is found in the body after surgery or treatment, it might not be possible for a patient to realize that there was a problem until much later. To solve this issue, the majority of states have implemented the discovery rule. This allows injured victims in certain situations to extend their deadlines. Your attorney will be aware specific laws of your state and will carefully look over your case’s timeline in order to ensure that there are no administrative mistakes that could delay your claim.
