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A medical malpractice lawyer can help injured patients receive compensation for their losses. The common law system regulates medical malpractice lawsuits.
In common law, doctors must adhere to the standard of care when treating their patients. If a doctor is found to be in violation of accepted medical practice and results in death or injury, they could be held accountable 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 in their healthcare. If the standards aren't met and that failure causes injuries or health problems the patient could have grounds to file a medical malpractice lawsuit.
The first part of a malpractice lawsuit is to prove that you had an arrangement with a doctor-patient healthcare provider and that the person or entity was obligated to act in a reasonable way. Then, you need to prove that the breach of this obligation occurred. This is usually done using expert testimony that can provide a objective analysis and evaluation.
The expert witness can determine whether the defendant's actions were not in line with the accepted standards in your specific case. The expert will look over your medical records and also interview or question you to determine this.
You must be able to show that the breach directly caused your injury. Causation is the third element in a malpractice lawsuit. In most cases, you'll need a direct cause and result relationship between the breach of duties and the resulting injury. A misdiagnosis for instance may result in the wrong medication being prescribed or treatment being administered. This can cause a negative reaction such as heart attacks.
Breach of Duty
As with all other professionals, doctors have a legal obligation to act with diligence and care. Doctors are held to a higher standard however, since they are medical experts and can make life-or-death decisions. The duty of care can be found in the laws and standards that govern specific kinds of treatments and procedures.
One of the most important elements that must be proven in a negligence lawsuit is that the defendant was bound by a duty of care to the plaintiff. It must be established that the defendant did not fulfill this duty of care. This means that the doctor failed to meet the standards of care in the specific situation. The standard of care is usually determined by what a reasonable individual would do under the circumstances. A reasonable driver, for example, would not run the traffic light.
In a malpractice lawsuit expert witnesses could be required to testify about the standard of care violated and the way in which this standard was violated. They can also explain the reason for the injury and what could be done to stop it from happening.
Damages
Physicians in the United States are required to have malpractice insurance to protect the potential losses that could result from medical negligence. To file a lawsuit, the plaintiff will need to show both financial losses (such medical expenses and lost wages) as well as non-economic losses (such pain and suffering).
The amount of money you will receive from a successful malpractice lawsuit depends on the way in which your New York medical malpractice lawyer makes the case for your losses. Your attorney will be able to prove your medically necessary expenses through a review of your medical records, testimony from experts and the use of economic experts. For your loss of earnings, your medical malpractice lawyer must also show the number of times you were off work due to your medical condition and also the fact that these days off work were due to the defendant's negligence.
Non-economic losses are more difficult to prove and may require the help of a professional who can give evidence about your physical, emotional and mental suffering because of the negligent actions of the defendant. Other kinds of non-economic damages include loss of consortium, which is the inability to maintain a loving and sexual relationship as you once could with your spouse or your significant other. The defendant's attorney will challenge the non-economic damages you suffer through a process of interrogatories, depositions and requests for documents and evidence under the oath.
Statute of limitations
In New York, as with every state, there's a set of time frames - also known as statutes or limitations within which a medical negligence lawsuit must be filed or otherwise it will be rejected by the courts. A seasoned New York medical malpractice lawyer is familiar with these nuances and will ensure your claim is filed within the deadlines stipulated by law.
In most cases, victims of medical malpractice must file his or her lawsuit within two and a half years from the date on which the negligence or act of a healthcare professional resulted in the death or injury. Like all laws, lawsuit this rule has its exceptions. If, for instance the error of the health care provider was part of a continuing course of treatment, the "clock" of 30 months won't start until the treatment has been completed or the patient is informed of the diagnosis.
In certain instances, a patient may not realize the problem until a long time later, for example when a foreign object is left within the body after surgery or treatment. In this regard, a majority of states have adopted the legal concept known as the discovery rule which permits injured victims to extend these deadlines under certain circumstances. Your attorney will be aware specific rules in your state and will carefully review your case timeline to avoid administrative errors that could delay your claim.
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