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A medical malpractice attorney helps injured patients get compensation for their losses. The legal system that regulates medical malpractice cases is built on common law.
In the common law, doctors must observe an ethical standard when treating their patients. If a doctor is found to be in violation of 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 a set of standards that are recognized by the medical profession as being reasonable and prudent when providing treatment. A patient might be in a position to file a lawsuit against a medical professional if those standards aren't being met and the failure results in injuries or health complications.
The first element in a malpractice lawsuit is to prove that you were a client of the healthcare provider and that they were bound to act reasonably. You must then prove the breach occurred. This is typically done expert testimony that can provide an objective analysis and evaluation.
The expert witness can determine whether the defendant's actions fell less than the accepted standard in your situation. The expert will need to examine your medical records and interview or cross-check you to make this determination.
It is also necessary to establish that the breach of duty directly caused you to suffer injury. This is known as causation, and it is the third element in a malpractice claim. In most instances, you'll require a direct cause-and-effect relationship between the breach of duty and the resulting injury. A mistake in diagnosis, for instance one, could result in prescribing the wrong medication or treatment being administered. This could result in an adverse reaction such as heart attacks.
Breach of Duty
Like all people, are required by law to fulfill a duty to act with reasonable care and caution. However, doctors are held to a higher standard because they are considered experts in medicine and deal with life and death decisions. The obligation of care is outlined in the laws and standards that govern certain types of treatments and procedures.
One of the first elements that must be established in a negligence claim is that the defendant owed a duty to care to the plaintiff. Then, it has to be proven that the defendant breached that duty of care. This means that the doctor did not meet the standards of care applicable to the situation. The standard of care is typically determined by what an ordinary person would do in similar situations. A reasonable driver, for instance will not go through the traffic light.
In a malpractice lawsuit, expert witnesses may be required to testify regarding the standard of care that was violated and the manner in which this standard was violated. They can also describe the cause of the injury and what could have prevented it.
Damages
Physicians in the United States are required to have malpractice insurance to protect the potential losses that could result from medical negligence. In order to file a claim, the plaintiff will need to show both financial losses (such medical expenses and lost wages) in addition to non-economic losses (such suffering and pain).
The amount you receive from a successful malpractice lawsuit is contingent on how effectively your New York medical malpractice attorney fights for your losses. Your lawyer can establish medically essential costs by examining your medical records, using expert testimony, and collaborating with economic experts. Your medical malpractice attorney must prove your lost earnings by proving the amount of days you were away working due to medical complications, and the fact that these days were a result of the defendant's negligence.
Non-economic damages can be difficult to prove. You may need the assistance of a professional witness who can explain your physical, mental, and emotional distress as a direct result of the defendant's negligence. Other types of non-economic damages include loss of consortium, which is an inability to maintain a sexually satisfying and loving relationship as you once could with your spouse or significant other. The defendant's lawyer will challenge your non-economic damages in the form of interrogatories, depositions, and requests for documents or sworn statements.
Statute of Limitations
In New York, as with every state, there are certain time limitations - referred to as statutes of limitation within which a medical negligence lawsuit must be filed otherwise it will be dismissed by the courts. A New York medical malpractice attorney who is experienced will be aware of the nuances of these deadlines and will ensure that your claim is filed within the deadlines stipulated by law.
In most cases, a victim of medical malpractice must bring a lawsuit within two and a half years of the date on which the act or omission of a medical malpractice lawyers professional resulted in the death or injury. As with all laws this rule is not without exceptions. For instance, if the health care provider's error was part of an ongoing course of treatment, the 30 month legally required "clock" will not begin until that course of treatment is complete or the patient learns about the diagnosis.
Additionally, in certain situations such as when a foreign object is found in the body after surgery or treatment, it might not be possible for a patient's to recognize the issue until much later. For this reason, most states have enacted the legal concept of discovery rule, which allows injured victims to extend deadlines in certain instances. Your attorney will be aware of specific rules of your state and medical Malpractice Attorney carefully review your case timeline to ensure that there are no administrative mistakes that could impede your claim.
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