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A medical malpractice lawyer helps victims receive compensation for their losses. The common law system regulates medical malpractice claims.
In the common law, doctors are required to adhere to a certain level of care when treating patients. If a doctor is found to be in violation of accepted medical practices and results in death or injury, they could be held accountable for negligence.
Duty of Care
Medical professionals must adhere to set standards that are accepted by the medical profession as reasonable and prudent in providing healthcare. If these standards aren't followed and if they cause injury or health complications, a patient may be able to file a medical malpractice lawsuit.
The first step in a malpractice lawsuit is to prove that you had an arrangement with a doctor-patient healthcare provider in question, and that the entity or person had a legal obligation to act with reasonable care. The next step is to prove that the breach of that duty occurred. This is typically done with the use of expert testimony who can provide an objective analysis and assessment of the case.
This expert witness will be able determine if 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 cross-check you in order to make this decision.
You must also demonstrate that the breach directly caused your injury. This is known as causation and it is the third element in a malpractice claim. In most cases you will require a direct cause & result relationship between the breach of duties and the subsequent injury. For instance, a mistake in diagnosis could result in the wrong treatment or medication being prescribed and can result in an adverse reaction like heart attacks.
Breach of Duty
Physicians, like all other individuals, have a legal duty to act with reasonable care and with caution. However, doctors are held to a higher standard since they are considered medical experts and have to make life and death decisions. The duty of care can be found in the regulations and laws for specific types of treatments and procedures.
One of the primary elements that needs to be established in a negligence lawsuit is that the defendant was bound by a duty of care to the plaintiff. Then, it must be proven that the defendant did not fulfill that duty of care. This means that the doctor medical malpractice lawsuit did not perform to the required standard of care appropriate to the circumstances. The standard of care is typically determined by what a reasonable individual would do in the same situation. A reasonable driver, for instance would not use a traffic light.
In a malpractice lawsuit, expert witnesses may be needed to testify on the standard of care violated and the way in which this standard was violated. They can also discuss the reason behind the accident and what could have prevented it from happening.
Damages
In the United States, physicians are required to carry malpractice insurance to protect themselves against any damages that could result from medical negligence. To file a claim, the plaintiff will need to prove both financial losses (such medical expenses and lost wages) as well as noneconomic losses (such suffering and pain).
The amount you receive from a successful suit for malpractice is contingent upon how well your New York medical malpractice attorney defends your losses. Your lawyer can determine your medically required expenses through a thorough review of your medical records, the testimony of experts and the assistance of economic experts. In order to prove your loss of earnings your medical malpractice lawyer should also prove the number of days you were away from work because of your medical issues and the fact that these days off work resulted from the negligence of the defendant.
Non-economic damages are more difficult to prove. You may require the assistance of a professional witness who can describe your physical, mental, and emotional pain as directly resulting from the defendant's negligence. Other kinds of non-economic damages include loss of consortium, which is an inability to maintain a loving and sexual relationship like you used to with your spouse or your significant other. The lawyer for the defendant will contest your noneconomic damages by way of interrogatories, depositions, and also requests for documents or sworn statements.
Statute of limitations
Like all states, New York has a statute of limitations that must be met before a medical malpractice lawsuit can be filed. If not the court will decide to dismiss the case. A seasoned New York medical malpractice lawyer is knowledgeable about these particulars and will ensure your claim is filed prior to the deadlines stipulated by law.
In most cases, victims of medical malpractice has to file his or her lawsuit within two and a half years from the date at which the act or omission of a doctor or other health professional resulted in the death or injury. As with all laws this rule is not without exceptions. If, for instance, the error committed by the health professional was part of a continuing course of treatment, the "clock" of 30 months cannot begin until the course of treatment is completed or the patient is informed of the diagnosis.
Additionally, in some cases like when the foreign object remains inside the body after surgery or treatment, Medical Malpractice Lawsuit it may not be possible for a patient to discover that there was a problem until much later. For this reason, most states have adopted an idea of law known as the discovery rule that permits injured victims to extend these deadlines in certain instances. Your attorney will be well-versed in the laws 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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