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A medical malpractice lawyer helps injured patients get compensation for their losses. The common law system regulates medical malpractice lawsuits.
In common law, doctors are expected to adhere to a specific standard of care when treating patients. If a doctor does not adhere to accepted medical practices and results in injury or death, the doctor 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 sensible and prudent in providing healthcare. A patient could be eligible to file a claim against a medical malpractice lawsuit professional if those standards aren't met and the result is injuries or health complications.
The initial step of a malpractice claim involves establishing that you had an arrangement with a doctor-patient healthcare provider in question and that the person or entity was obligated to act reasonably. You must then prove the breach occurred. This is usually done through the recourse to expert witnesses who can provide an objective analysis and evaluation of the situation.
The expert witness will be able determine if the defendant's actions were below the standard of care that is accepted in the particular case. The expert will need to look over your medical records and interview or cross-check you to make this decision.
It is also necessary to establish that the breach of duty caused the injuries. This is known as causation and it is the third element in a negligence claim. In the majority of cases, you will need to have a direct cause-and-effect relationship between the breach of duty and the resulting injury. For instance, a misdiagnosis could lead to the wrong medication or treatment being prescribed and results in an adverse reaction like a heart attack.
Breach of Duty
Like all doctors medical professionals, doctors are under a legal obligation to exercise care and caution. However doctors are held to an even higher standard due to the fact that they are considered medical experts and deal with life and death decisions. The duty of care can be found in the laws and standards that govern certain types of treatments and procedures.
One of the first things that must be proven in a negligence claim is that the defendant was bound by a duty of care to the plaintiff. It must be proved that the defendant did not fulfill this duty of care. This means that the doctor failed to meet the standard of care in the particular situation. The standard of care is usually determined by what a reasonable person would do in the situation. For example, a reasonable driver would not run an intersection with a red light.
In a case of malpractice, expert witnesses are often needed to testify on the standard of care and the way in which it was violated. They can also discuss how the injury was caused and what could have been done to prevent it from occurring.
Damages
Physicians in the United States are required to have malpractice insurance to protect the potential losses that could result from medical negligence. To be able to file a claim the plaintiff must prove both financial losses (such medical expenses and lost wages) as well as noneconomic losses (such pain and suffering).
The amount of compensation you receive from a successful suit for malpractice depends on how well your New York medical malpractice attorney will argue for your losses. Your attorney can establish medically necessary expenses by examining your medical records, using expert testimony, and collaborating with economic experts. For your loss of earnings the medical malpractice lawyer has to demonstrate the number of days you were absent from work because of your medical condition and also the fact that these missed work days were the result of the defendant's negligence.
Non-economic damages are more difficult to prove. You may require assistance from an expert witness who can explain your physical, mental and emotional pain that is a direct result of the defendant's negligence. Loss in consortium is another kind of non-economic loss. This is the inability to maintain a romantic, sexual connection with your spouse or other significant person as you once did. The attorney representing the defendant will challenge your non-economic damages through interrogatories and depositions as well as demands for medical malpractice lawyer documents and declarations under swearing.
Statute of limitations
As in every state, New York has a statute of limitations that must be fulfilled prior to a medical negligence case can be filed. Otherwise the court could dismiss it. A New York medical malpractice attorney who is experienced 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, a victim of medical negligence is required to bring a suit within two and a half years from the date the act or omission of the health professional caused injury or death. Like all laws, this rule is not without exceptions. For instance in the event that the error of the health care provider was part of an ongoing course of treatment, the 30-month legal "clock" will not start until the course of treatment is complete or the patient is informed of the diagnosis.
In certain instances, a patient may not realize the problem until a considerable time later for instance the case where a foreign body remains in the body following surgery or treatment. In order to tackle this issue, the majority of states have adopted what is known as the discovery rule. This allows injured victims in certain circumstances to extend their deadlines. Your attorney will be aware of specific laws in your state and carefully review your case timeline to avoid any administrative errors that could delay your claim.
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