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A medical malpractice lawyer helps injured patients get compensation for their losses. The legal system that regulates medical malpractice cases is founded on common law.
In common law, doctors are required to adhere to a certain level of care when treating patients. If a doctor violates accepted medical practices and results in injury or death the doctor may be held responsible 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 care. If these standards aren't adhered to and the failure results in injuries or health issues the patient may be able to bring a medical malpractice lawsuit.
The first element of a malpractice claim is to establish that you had a doctor-patient relationship with the healthcare provider in question and that the person or entity owed you a duty to act in a reasonable way. Then, you must show that a breach of that duty occurred. This is usually done by an expert witness that can provide an objective analysis and evaluation.
This expert witness will be able determine if the defendant's actions fell below the accepted standard of care in your particular circumstance. The expert will need to look over your medical records and also interview or question you in order to arrive at this conclusion.
You must be able to prove that the breach directly led to your injury. This is known as causation and it is the third component of a malpractice claim. In most instances, you'll require an obvious cause-and effect relationship between the breach of duty and the subsequent injury. A misdiagnosis, for instance one, could result in prescriptions for the wrong drug or treatment being given. This can cause 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 the utmost care and caution. Doctors are held to a higher standard however, since they are medical experts and make life-or-death decisions. The duty of care is found in the laws and standards that govern specific kinds of treatments and procedures.
In a case of negligence, it is vital to prove that the defendant had the obligation of taking care of the plaintiff. Then, it needs to be proved that the defendant violated that duty of care. This means that the doctor did not live up to the standard of care for the situation. The standard of care is generally determined by what a reasonable individual would do in the situation. A reasonable driver, for example would not use the traffic light.
In a case of malpractice experts could be required to testify about the standard of care violated and how this standard was violated. They can also describe the cause of the injury and what could have been done to avoid it from happening.
Damages
In the United States, physicians are required to carry malpractice insurance in order to cover any losses that might arise due to medical negligence. To file an action for damages, the plaintiff has to prove actual financial losses (such as medical expenses and lost wages) as well as non-economic losses (such as pain and suffering).
The amount of compensation received from a successful malpractice suit depends on the way in which your New York medical malpractice lawyer makes the case for your losses. Your lawyer can establish the medically necessary expenses through a review your medical records, testimony from experts as well as the assistance of economic experts. Your medical malpractice attorney must prove the loss of your earnings by proving the number of days you were absent from work due your medical issues, and the fact that these days resulted from the defendant's negligence.
Non-economic losses are more difficult to prove and might require the assistance of a professional who will give evidence about your physical, emotional and mental suffering as a result of negligent actions of the defendant. Loss of consortium is another type of non-economic damage. This is the inability of having an intimate, sexual relationship with your spouse or any other significant person like you used to. The defendant's attorney will challenge the non-economic damages you suffer through interrogatories, depositions and requests for documents and statements under the oath.
Statute of Limitations
Like every state, New York has a statute of limitations that must be fulfilled prior to a Medical Malpractice Law Firm negligence case can be filed. Otherwise the court will decide to dismiss the case. A seasoned New York medical malpractice lawyer is familiar with these nuances and will ensure your claim is filed by the deadlines stipulated by law.
In the majority of instances, the victim of medical malpractice has to file his or her lawsuit within two and a half years from the date that the act or omission of a medical professional caused the injury or death. Like all laws, this rule has its exceptions. For instance, if the error made by the health care professional was part of a continuous course of treatment, the 30-month legal "clock" will not begin until that course of treatment is completed or when the patient learns about the diagnosis.
In some instances it is possible that a patient will not be aware of the issue until a considerable time later for instance the case where a foreign body remains in the body following surgery or treatment. To deal with this issue, a majority of states have adopted what is known as the discovery rule. This permits injured victims in certain situations to extend their deadlines. Your attorney will know the specific rules in your state, and will carefully examine your case's timeline to ensure that there are no administrative mistakes which could cause delays to your claim.
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