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A medical malpractice lawyer helps injured victims get compensation for their losses. The common law system governs medical malpractice claims.
In common law, doctors are required to adhere to a certain level of care when treating patients. If a physician does not follow the accepted medical standard and results in injury or death it could be liable for negligence.
Duty of Care
Medical professionals are required to follow a set of standards accepted by the medical industry as being reasonable and prudent when providing treatment. When those standards are not followed and the result is harm or health issues, a patient may have grounds to file a medical malpractice lawsuit.
The first thing to do in a malpractice case is to establish that you were a client of the healthcare provider and that they owed you a duty to act reasonably. You must then prove that the breach occurred. This is usually accomplished by an expert witness that can provide an objective analysis and evaluation.
This expert witness will determine if the defendant's actions are in violation of the standard of care that is accepted in the particular case. To allow the expert to determine this, they will need to be able to review your medical records and conduct an examination or interview of you.
You must also show that the breach directly led to your injury. Causation is the third factor in a claim for malpractice. In most cases, you'll require a direct cause-and- effect relationship between the breach of duty and the subsequent injury. A misdiagnosis for instance can result in prescribing the wrong medicine or treatment being given. This in turn can cause a negative reaction such as a heart attack.
Breach of Duty
Like everyone else physicians, doctors are legally bound by an obligation to exercise diligence and care. However doctors are held to an even higher standard because they are considered experts in medicine who make life and death decisions. The duty of care is outlined in the law and standards which are applicable to specific types of procedures and treatments.
In a negligence case, it is crucial to prove that the defendant owed a duty to care for the plaintiff. Then, it needs to be established that the defendant violated that duty of care. This means that the doctor did not meet the standards of care in the specific situation. The standard of care is typically determined by what a reasonable individual would do under the circumstances. For example an honest driver would not speed through a red light.
In a lawsuit involving a malpractice experts could be required to testify regarding the standard of care violated and how this standard was breached. They can also describe what caused the injury and what could have prevented it.
Damages
Physicians in the United States are required to have malpractice insurance to protect their potential losses arising from medical negligence. To be able to file a claim the plaintiff must demonstrate both financial losses (such medical expenses and lost wages) and noneconomic losses (such suffering and pain).
The amount you receive from a successful malpractice lawsuit depends on how well your New York medical malpractice attorney defends your losses. Your attorney can determine your medically required expenses through a review your medical records, the testimony of experts, and the use of economic experts. Your medical malpractice lawyer must prove the loss of earnings by proving the amount of days you were away from work due your medical conditions, and also the reason for these absences were the result of the defendant's negligence.
Non-economic damages can be more difficult to prove, and medical malpractice attorney may require the assistance of a professional who can testify about your physical, emotional, and mental pain as a result of negligence committed by the defendant. Other types of non-economic damages include loss of consortium, which is an inability to maintain a sexually satisfying and loving relationship in the same way you used to with your spouse or your significant other. The defendant's lawyer will challenge your non-economic damages with the help of interrogatories, depositions, as well as requests for documents and sworn testimony.
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 dismissed by the courts. A New York medical malpractice attorney who is skilled will be well-versed in the nuances of these deadlines and ensure that your claim is filed within the deadlines set forth by law.
In the majority of cases, the victim of medical malpractice law firms negligence is required to be able to file a lawsuit within two and a half years from the time the act or omission made by a health care provider caused injury or death. Like all laws, this rule is not without exceptions. If, for example, the error made by the health care provider was a part of a continual course of treatment, the "clock" of 30 months won't start until the treatment has been completed or the patient has been informed of the diagnosis.
In some cases patients may not discover the problem until quite a while later, for example, if a foreign body remains within the body after surgery or treatment. Because of this, many states have adopted the legal concept known as the discovery rule that permits injured victims to extend these deadlines in certain situations. Your lawyer is aware of the rules of your state and will go over the timeline of your case carefully to avoid administrative mistakes that could impede your claim.
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