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Why You Need a Medical Malpractice Lawyer

A medical malpractice lawyer assists injured victims receive compensation for their losses. The legal system that regulates medical malpractice cases is built on common law.

Under 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 a set of standards which are recognized by the medical profession as reasonable and prudent when providing healthcare. If these standards aren't followed and the result is injury or health complications the patient could be able to sue for medical malpractice lawsuit.

The initial step of a malpractice claim is to establish that you had a doctor-patient relationship with the healthcare provider at issue and that the person or entity had a legal obligation to act reasonably. You must then prove that the breach occurred. This is usually accomplished by expert testimony that can provide an objective analysis and evaluation.

The expert witness will be able to determine if the defendant's actions are in violation of the accepted standard of care in your particular situation. To allow the expert to make this decision, they will need to be able review your medical records and conduct an examination or interview with you.

You must be able to show that the breach directly caused your injury. Causation is the 3rd element in a claim for malpractice. In the majority of instances, you'll require a direct cause-and-effect relationship between the breach of duty and the subsequent injury. A misdiagnosis, for example one, could result in prescribing the wrong medication or treatment being given. This in turn can cause a negative reaction such as heart attacks.

Breach of Duty

Like everyone else physicians, doctors are legally bound by an obligation to exercise the utmost care and caution. Doctors are held to an elevated standard but because they are medical malpractice lawsuit experts and have the authority to make life-or-death decisions. The duty of care is outlined in the regulations and standards that are situated for specific kinds of treatments and procedures.

One of the first elements that must be established in a negligence case is that the defendant owed a duty of care to the plaintiff. Then, it must be established that the defendant breached that 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 person would do under the circumstances. A reasonable driver, for instance, would not run an intersection at a stoplight.

In a case of negligence, expert witnesses are often needed to testify on the standard of care and the way in which it was violated. They can also provide a detailed explanation of how the injury occurred and what could have been done to avoid it from happening.

Damages

In the United States, physicians are required to have malpractice insurance in order to cover any potential loss that may result from medical negligence. To file a lawsuit, the plaintiff will need to demonstrate both financial losses (such medical expenses and lost wages), as well as noneconomic losses (such pain and suffering).

The amount you receive from a successful malpractice lawsuit depends on how well your New York medical malpractice attorney defends your losses. Your lawyer will prove your medically necessary expenses through a review of your medical records, the testimony of experts, and the use of economic experts. Your medical malpractice attorney must prove your lost earnings by proving the number of days that you missed working due to medical conditions, and also the reason for these absences were the result of the defendant's negligence.

Non-economic damages can be more difficult to prove, and may require the help of a professional who will provide evidence of your physical, emotional and mental distress because of the infractions committed by the defendant. Other forms of non-economic damages include loss of consortium, which is an inability to maintain a sexually satisfying and loving relationship in the same way you used to with your spouse or significant other. The attorney representing the defendant will challenge your non-economic damages by interrogatories and depositions as well as requests for documents and statements under the oath.

Statute of Limitations

In New York, as with every state, there are definite deadlines - commonly referred to as statutes of limitation within which a medical negligence lawsuit must be filed or otherwise it could be dismissed by the courts. A New York medical malpractice attorney who has experience 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 has to make a claim within two-and-a-half years of the date that the act or omission by a health care provider caused death or injury. However like with all laws there are a few exceptions to this rule. For instance in the event that the error by the health professional was part of a continuous course of treatment, the 30-month legally required "clock" will not start until that course of treatment is completed or the patient is informed of the diagnosis.

In certain instances, a patient may not be aware of the issue until a considerable time later, for example in the event that a foreign substance remains in the body following surgery or treatment. To deal with this issue, a majority of states have implemented what is known as the discovery rule. This permits injured victims in certain circumstances to extend their deadlines. Your lawyer is aware of the rules of your state and will scrutinize the timeline of your case with care to avoid administrative errors which could delay your claims.