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A medical malpractice lawyer can help victims receive compensation for their losses. The common law system regulates medical malpractice lawsuits.
In common law, doctors are expected to adhere to a certain level of care when treating patients. If a doctor does not adhere to accepted medical practice and results in injury or death then he may be held responsible for negligence.
Duty of Care
Medical professionals must follow a set of standards accepted by the medical industry as reasonable and prudent in providing medical care. If the standards aren't adhered to and the failure results in injuries or health problems, a patient may be able to file a medical malpractice lawsuit.
The initial step of a malpractice claim is to establish that you had a doctor-patient relationship with the healthcare provider at issue and that the entity or person was obligated to act with reasonable care. Then, you must show that the breach of that duty occurred. This is usually done using expert testimony that can provide an objective analysis and evaluation.
An expert witness can determine whether the defendant's actions are below the standard of care in your specific case. The expert will need to look over your medical records and interview or examine you in order to make this determination.
You should also be able to establish that the breach of duty directly caused the injuries. This is known as causation, and it is the third element in a negligence claim. In the majority of instances, you'll require an obvious cause-and effect relationship between the breach of duty and subsequent injury. For instance, a misdiagnosis could lead to the wrong treatment or medical malpractice lawsuit medication being prescribed and results in an adverse reaction such as heart attacks.
Breach of Duty
Like all people, are legally bound by a obligation to conduct themselves with reasonable care and caution. Doctors are held to an even higher standard due to the fact that they are medical experts and make life-or-death decisions. The duty of care is outlined in laws and standards for certain types of treatments and procedures.
One of the first things that must be proven in a negligence lawsuit is that the defendant owed a duty of care to the plaintiff. Then, it needs to be proven that the defendant breached that duty of care. This means that the doctor did not adhere to the standard of care applicable to the situation. The standard of care is generally determined by what a reasonable individual would do under the circumstances. A reasonable driver, for instance would not use a traffic light.
In a case of malpractice, expert witnesses may be needed to testify on the standard of care violated and how this standard was violated. They can also explain the reason behind the injury and what could have prevented it from happening.
Damages
In the United States, physicians are required to have malpractice insurance in order to protect themselves against any damages that could result due to medical negligence. To file a lawsuit, the plaintiff will need to show both financial losses (such medical malpractice lawyers expenses and lost wages) in addition to non-economic losses (such pain and suffering).
The amount of compensation you receive from a successful malpractice suit is contingent upon how well your New York medical malpractice attorney will argue for your losses. Your lawyer can prove your medically necessary expenses through a review of your medical records, evidence from experts, and the use of economic experts. In order to establish your loss of earnings Your medical malpractice lawyer has to establish the number of days you were absent from work due to medical conditions and the fact that these missed work days were due to the negligence of the defendant.
Non-economic damages can be difficult to prove. You may need the assistance of a professional witness who can describe your physical, mental and emotional distress as an direct result of defendant's negligence. Other types of non-economic damages include loss of consortium, which is the inability to maintain a loving and sexual relationship in the same way you used to with your spouse or significant other. The lawyer representing the defendant will challenge your noneconomic damages by way of depositions and interrogatories as well as requests for documents or sworn statements.
Statute of limitations
As in every state, New York has a statute of limitations that must be met before a medical malpractice lawsuit can be filed. If not the court could dismiss it. A seasoned New York medical malpractice lawyer is knowledgeable about these particulars and will ensure your claim is filed by the deadlines stipulated by law.
In the majority of cases, a victim of medical negligence has to bring a suit within two and a half years of the date that the act or omission made by an health professional resulted in the injury or death. Like all laws, this rule is not without exceptions. If, for instance the error committed by the health professional was part of a continuous course of treatment, then the "clock" of 30 months cannot begin until the course of treatment has been completed or the patient has been informed of the diagnosis.
Additionally, in certain situations, such as when a foreign object is left in the body following surgery or treatment, it might not be possible for a patient or patient's family to determine the issue until much later. In order to solve this issue, the majority of states have embraced what is known as the discovery rule. This allows injured victims in certain circumstances to extend their deadlines. Your attorney will be aware of specific laws of your state and carefully review your case timeline to avoid any administrative errors that can derail your claim.
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