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A medical malpractice lawyer can help injured victims get compensation for their losses. The common law system governs medical malpractice lawsuits.
In common law, doctors are required to adhere to a certain level of care when treating patients. If a doctor does not adhere to accepted medical practices and results in injury or death then he may be held responsible for negligence.
Duty of Care
Medical professionals must adhere to established set of standards that are regarded by the medical profession as being reasonable and prudent when providing healthcare. Patients may be in a position to file a lawsuit against a medical professional if those standards aren't adhered to and the result is injuries or health problems.
The first thing to do in a malpractice case is to prove that you were a patient of the healthcare provider and that they owed you an obligation to act in a reasonable manner. Then, you need to prove that a breach of that duty occurred. This is usually accomplished by an expert witness that can provide a objective analysis and evaluation.
An expert witness can determine whether the defendant's actions are not in line with the accepted standards in your specific case. In order for the expert to arrive at this conclusion they must be able to review your medical records and conduct an examination or interview with you.
You should also be able to establish that the breach of duty directly caused you to suffer injuries. This is known as causation, and it is the third element of a malpractice claim. In most cases you will require a direct cause and effect connection between the breach of duties and the resulting 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
Just like everyone else, doctors have a legal obligation to act with care and caution. Doctors are held to higher standards due to the fact that they are medical experts and have the authority to make life-or-death decisions. The obligation of care can be found in laws and standards governing certain types of treatments and procedures.
In a negligence case it is vital to prove that the defendant had an obligation to take care of the plaintiff. Then, it must be proved that the defendant violated the duty of care. This means that the doctor did not meet the standard of care in the particular circumstance. The standard of care is usually determined by what a reasonable person would do in the same situation. For instance an honest driver wouldn't run when there is a red light.
In a case of malpractice expert witnesses could be required to testify about the standard of care violated and the manner in which this standard was violated. They can also describe the reason behind the injury and what could have prevented it.
Damages
In the United States, physicians are required to carry malpractice insurance in order to cover any loss that may result from medical negligence. In order to file a claim, the plaintiff must show both financial losses (such medical expenses and [Redirect Only] lost wages) in addition to noneconomic losses (such pain and suffering).
The amount you are awarded from a successful lawsuit for malpractice is contingent upon the way in which your New York medical malpractice lawyer defends your losses. Your lawyer can establish the medically necessary expenses through a thorough review of your medical records, the testimony of experts as well as the assistance of economic experts. For the loss of your earnings the medical malpractice lawyer must also demonstrate the number of days you were absent from work because of your medical conditions and the fact that these missed work days were due to the defendant's negligence.
The non-economic damages may be more difficult to prove. You may require assistance from a professional witness who can detail your physical, mental and emotional distress as directly resulting from the defendant's negligence. Loss in consortium is another type of non-economic damage. This is the inability to have an intimate relationship with your spouse, or any other significant individual as you once did. The defendant's attorney will challenge the non-economic damages you suffer through interrogatories and depositions as well as requests for statements and documents under oath.
Statute of limitations
In New York, as with every state, there's a set of time frames - also known as statutes of limitation within which a medical malpractice lawsuit must be filed otherwise it will be dismissed by the courts. An experienced New York medical malpractice law firm malpractice lawyer is familiar with these nuances and will ensure that your claim is filed within the deadlines that are set by law.
In most cases, a victim of medical malpractice must present a lawsuit within two and a half years of the date that the negligence or act of a doctor or other health professional caused the injury or death. However like all laws there are a few exceptions to this rule. If, for instance the error of the health care provider was part of a continuous course of treatment, then the "clock" of 30 months cannot begin until the treatment is completed or the patient has been informed of the diagnosis.
In certain instances the patient may not recognize the problem until quite a while later for instance in the event that a foreign substance remains within the body after surgery or treatment. For this reason, most states have adopted the legal concept known as the discovery rule that allows injured victims to extend deadlines in certain instances. Your lawyer will be aware of the specific laws of your state and will examine your case's timeline to ensure that there are no administrative mistakes that could impede your claim.
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