Why You Need a Medical Malpractice Lawyer

A medical malpractice lawyer helps patients who have suffered injuries receive compensation for their losses. The legal system that regulates medical malpractice cases is founded on common law.

In the common law, doctors must observe the standard of care when treating their patients. If a doctor is not following accepted medical practice and it results in injury or death the doctor could be held accountable for negligence.

Duty of Care

Medical professionals are expected to follow a set of standards accepted by the medical industry as reasonable and prudent when providing treatment. When those standards are not followed and if they cause injury or health complications the patient may be able to bring a medical malpractice lawsuit.

The first step in a malpractice claim is to establish that you had a doctor-patient relationship with the healthcare provider in question and that the person or entity was bound to act in a reasonable manner. The next step is to prove that the breach occurred. This is usually done by the use of expert testimony which can provide a objective analysis and evaluation.

An expert witness can determine whether the defendant's actions were less than the accepted standard in your situation. To allow the expert to arrive at this conclusion they must be able to look over your medical records and conduct an examination or interview with you.

You must also establish that the breach directly led to your injury. Causation is the 3rd element in a claim for malpractice. In most cases you will require a direct cause and result relationship between the breach of duty and the subsequent injury. A misdiagnosis for instance one, could result in prescriptions for the wrong drug or treatment being administered. This can result in an adverse reaction such as a heart attack.

Breach of Duty

Like all doctors who are legally obligated to act, doctors also have an obligation to act with care and caution. Doctors are held to a higher standard however, since they are medical experts and have the authority to make life-or-death decisions. The duty of care is found in the laws and standards that govern specific kinds of treatments and procedures.

One of the first elements to be established in a negligence lawsuit is that the defendant owed a duty to care to the plaintiff. It must be proved that the defendant did not fulfill this obligation of care. This means that the doctor did not perform to the required standard of care applicable to the situation. The standard of care is usually determined by what a reasonable person would do in the same situation. For example, a reasonable driver wouldn't run when there is a red light.

In a malpractice case, experts are usually 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 was caused and what could be done to prevent it from occurring.

Damages

In the United States, physicians are required to have malpractice insurance in order to protect against potential damages that could result due to medical negligence. To submit a claim for damages the plaintiff must prove both actual financial losses (such as medical expenses and lost wages) as well as non-economic losses (such as pain and suffering).

The amount you receive from a successful malpractice lawsuit is contingent on how effectively your New York medical malpractice attorney argues for your losses. Your attorney will be able to establish the medically necessary expenses by examining your medical records, the testimony of experts and the use of economic experts. Your medical malpractice attorney must prove the loss of earnings by proving the amount of days you have missed working due to medical issues, and the fact that these days were a result of the defendant's negligence.

Non-economic damages can be harder to prove. You may need the assistance of an expert witness who can detail your physical, mental and emotional pain that is a direct result of the defendant's negligence. Loss of consortium is a second type of non-economic harm. It is the inability to enjoy an intimate, sexual relationship with your spouse, or any other significant individual as you once did. The lawyer representing the defendant will challenge your noneconomic damages by way of interrogatories, depositions, along with requests for documents and sworn declarations.

Statute of Limitations

Like all states, New York has a statute of limitations that must be fulfilled before a medical malpractice case can be filed. If not the court could dismiss the case. A New York medical malpractice attorney who has experience is well-versed in the specifics of these deadlines and will ensure that your claim is filed before the deadlines stipulated by law.

In most cases, a victim of medical malpractice has to make a claim within two and a half years of the date at which the negligence or act of a healthcare professional resulted in the death or injury. As with all laws this one is not without exceptions. If, for example, the error committed by the health professional was part of a continuous course of treatment, the "clock" of 30 months won't start until the treatment is completed or the patient has been informed of the diagnosis.

In certain instances it is possible that a patient will not realize the problem until a long time later, for medical malpractice attorney example when a foreign object remains in the body following surgery or treatment. Because of this, many states have adopted the legal concept of discovery rule, which allows injured victims to extend deadlines in certain circumstances. Your lawyer is well-versed in the laws of your state and will scrutinize your case timeline carefully to avoid administrative mistakes that could cause delays to your claim.