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A medical malpractice lawyer assists injured patients get compensation for their losses. The legal system that regulates medical malpractice cases is founded on common law.
In the common law, doctors are expected to adhere to a specific standard of care when treating patients. If a physician violates accepted medical practices and causes injury or death, the doctor could be held liable for negligence.
Duty of Care
Medical professionals are required to adhere to a set standards accepted by the medical industry as being prudent and reasonable when providing healthcare. If the standards aren't met and that failure causes harm or health issues patients may 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 in question, and that the entity or person was obligated to act with reasonable care. You must then prove that the breach occurred. This is usually done through the recourse to expert witnesses who can provide an objective analysis and assessment of the case.
The expert witness will determine if the defendant's actions are in violation of the accepted standard of care in your particular circumstance. To allow the expert to arrive at this conclusion, they will need to be able to look over your medical records and conduct an examination or interview with you.
You also need to establish that the breach of duty directly led the injury. Causation is a third element in a claim for malpractice. In most instances, you'll need to have an exact cause-and-effect link between the breach of duty and the resulting injury. For example, a misdiagnosis could lead to the wrong medication or treatment being administered and results in an adverse reaction, like a heart attack.
Breach of Duty
Doctors, just like other people, are legally bound by a obligation to exercise reasonable care and with caution. Doctors are held to an elevated standard but because they are medical experts and make life-or-death decisions. The obligation of care can be found in the regulations and Medical malpractice lawsuits laws for specific kinds of treatments and procedures.
One of the first things that must be established in a negligence case is that the defendant owed a duty to care to the plaintiff. Then, it must be proven that the defendant did not fulfill that duty of care. This means that the doctor failed to meet the standard of care in the specific situation. The quality of care is usually determined by what a typical person would do under the same circumstances. For example an honest driver would not stop at an intersection with a red light.
In a malpractice lawsuit expert witnesses could be needed to testify on the standard of care that was breached and how this standard was breached. They can also provide a detailed explanation of the reason for the injury and what could be done to stop it from occurring.
Damages
Physicians in the United States are required to have malpractice insurance to protect their potential losses arising from medical negligence. In order to file a claim, the plaintiff will need to show both financial losses (such medical expenses and lost wages), as well as non-economic 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 attorney will be able to prove your medically necessary expenses through a thorough review of your medical records, testimony from experts and the assistance of economic experts. For your loss of earnings, your medical malpractice lawyer has to prove the number of days you missed work due to your medical condition and also the fact that these absences resulted from the defendant's negligence.
Non-economic losses are more difficult to prove and could require the help of a professional who will testify about your physical, emotional and mental distress because of the negligent actions of the defendant. Loss of consortium is another type of non-economic damage. This is the inability to maintain a loving, sexual relationship with your spouse, or any other significant person as you once did. The lawyer representing the defendant may challenge your noneconomic damages by way of interrogatories and depositions and also requests for documents and sworn statements.
Statute of limitations
In New York, as with every state, there are specific time limits - commonly known as statutes of limitations within which a medical negligence lawsuit must be filed, or otherwise it will be rejected by the courts. An experienced New York medical malpractice law firms malpractice lawyer is aware of these specifics and will ensure your claim is filed prior to the deadlines set by law.
In the majority of instances, the victim of medical malpractice must file his or her lawsuit within two and a half years of the date when the act or omission of a doctor or other health professional resulted in the death or injury. However like all laws there are some exceptions to this rule. If, for instance the error committed by the health professional was part of a continuous treatment plan, then the "clock" of 30 months cannot begin until the course of treatment is completed or the patient has been informed of the diagnosis.
Additionally, in some cases like when a foreign object is left inside 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 that allows injured victims to extend these deadlines in certain situations. Your lawyer will be familiar with the laws of your state and will review the timeline of your case carefully to avoid administrative errors that can derail your claims.
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