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A medical malpractice lawyer assists 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 are expected to adhere to a certain level of care when treating patients. If a physician does not follow the accepted medical practices 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 that are recognized by the medical profession as reasonable and prudent when providing treatment. A patient might be legally able to bring a lawsuit for medical malpractice if those standards aren't being met and the failure 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 were bound to act in a fair manner. Then, you need to prove that the breach of this duty occurred. This is usually done through the use of experts who can provide an objective analysis and evaluation of the situation.
This expert witness will be able help determine whether or not the defendant's actions were below the standard of care that is accepted in your particular case. The expert will need to review your medical records, and interview or examine you to determine this.
It is also necessary to prove that the breach of duty directly led you to suffer injuries. Causation is the third factor in a claim for malpractice. In the majority of cases, you will require a direct cause & result relationship between the breach of duty and the resulting injury. A mistake in diagnosis, for instance, could lead to prescriptions for the wrong drug or treatment being administered. This can cause an adverse reaction, such as a heart attack.
Breach of Duty
As with all other professionals medical professionals, doctors are under a legal obligation to exercise diligence and care. Doctors are held to an elevated standard however, since they are medical experts and make life-or-death decisions. The obligation of care can be found in the regulations and laws for specific types of treatments and procedures.
In a case of negligence, it is essential to establish that the defendant owed a duty to care for the plaintiff. Then, it must be established that the defendant violated the duty of care. This means that the doctor failed to meet the standard of care in the particular circumstance. The standard of care is usually defined by what an average person would do under the same situation. A reasonable driver, for instance would not use at a traffic light.
In a case of negligence, expert witnesses are typically required to testify regarding the standard of care and how it was violated. They can also describe the reason for the injury and what could be done to stop it from happening.
Damages
Physicians in the United States are required to have malpractice insurance to protect the risk of losses resulting from medical negligence. To be able to file a claim the plaintiff will need to demonstrate both financial losses (such medical expenses and lost wages) and noneconomic losses (such pain and suffering).
The amount of compensation received from a successful malpractice case is contingent on how your New York medical malpractice lawyer makes the case for your losses. Your attorney will be able to establish the medically necessary expenses by examining your medical records, testimony from experts as well as the assistance of economic experts. For the loss of your earnings Your medical malpractice lawyer should also establish the number of days you were absent from work due to medical complications and the fact that the absences resulted from the defendant's negligence.
Non-economic losses can be more difficult to prove and may require the assistance of a professional who will provide evidence of your physical, emotional, and mental distress as a result of infractions committed by the defendant. Other kinds of non-economic damages include loss of consortium, which is an inability to maintain a romantic and sexual relationship in the same way you used to with your spouse or significant other. The attorney representing the defendant will challenge the non-economic damages you suffer through interrogatories, depositions, and requests for statements and documents under the oath.
Statute of Limitations
In New York, as with every state, there are certain time limitations - 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 make sure that your claim is filed before the deadlines stipulated by law.
In the majority of instances, the victim of medical malpractice must bring a lawsuit within two and a half years from the date at which the negligence or act of a healthcare professional resulted in the death or injury. However, as with all laws there are some exceptions to this rule. For instance in the event that the error of the health care provider was part of an ongoing course of treatment, the 30 month legally required "clock" will not start until the treatment is completed or when the patient becomes aware of the diagnosis.
In some cases it is possible that a patient will not recognize the problem until a considerable time later for instance, if a foreign body is left within the body after surgery or treatment. In order to address this issue, the majority of states have embraced what is known as the discovery rule. This permits injured victims in certain circumstances to extend their timeframes. Your lawyer is aware of the rules of your state and will review the timeline of your case with care to avoid any administrative errors that could cause delays to your claim.
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