5 Killer Quora Answers On Medical Malpractice Law
Why You Need a Medical Malpractice Lawyer
A medical malpractice lawyer assists injured patients receive compensation for their losses. The legal system that regulates medical malpractice cases is built on common law.
In common law, doctors must follow a standard of care in treating their patients. If a doctor is found to be in violation of accepted medical procedures and results in death or injury, the doctor could be held liable for negligence.
Duty of Care
Medical professionals must adhere to set of standards that are recognized by the medical profession as being sensible and prudent in providing healthcare. A patient could be eligible to file a claim for medical malpractice if the standards aren't followed and the breach causes injuries or health complications.
The initial step of a malpractice claim is to establish that you had a doctor-patient relationship with the healthcare provider and that the entity or person owed you a duty to act in a reasonable way. You must then prove 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 help determine whether or not the defendant's actions fall below the accepted standard of care in your particular case. To allow the expert to make this determination they must be able review your medical records and conduct an examination or interview of you.
You must also be able to establish that the breach of duty directly led you to experience injury. Causation is the third factor in a malpractice claim. In most cases, you will require an obvious cause-and effect relationship between the breach of duty and the resulting injury. A misdiagnosis, for example one, could result in prescribing the wrong medication or treatment being administered. This can cause an adverse reaction such as 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 a higher standard because they are medical experts and deal with life and death decisions. The obligation of care can be found in laws and standards for specific types of treatment and procedures.
One of the primary 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 violated this duty of care. This means that the doctor failed to live up to the standard of care in the particular situation. The standard of care is usually determined by what an ordinary person would do under similar circumstances. A reasonable driver, for instance would not operate an intersection at a stoplight.
In a malpractice case, experts are usually needed to testify about the standard of care and the manner in which it was breached. They can also discuss the cause of the accident and what could have prevented it from happening.
Damages
Physicians in the United States are required to have malpractice insurance to protect their potential losses arising from medical negligence. To be able to file a claim the plaintiff must show both financial losses (such medical expenses and lost wages) and non-economic losses (such suffering and pain).
The amount of compensation you receive from a successful malpractice case depends on the way in which your New York medical malpractice lawyer can argue for your losses. Your attorney can establish the medically necessary expenses through a review of your medical malpractice lawsuits records, the testimony of experts and the use of economic experts. Your medical malpractice attorney must prove your lost earnings by proving the amount of days that you missed working due to medical issues, and that these missed days were the result of the defendant's negligence.
Non-economic losses can be more difficult to prove and might require the assistance of a professional who can be able to testify about your physical, emotional, and mental distress due to the negligence committed by the defendant. Loss of consortium is a second type of non-economic injury. It is the inability to maintain an intimate, sexual relationship with your spouse or another significant individual as you once did. The lawyer for the defendant will contest your non-economic damages through the use of depositions and interrogatories along with requests for documents and sworn declarations.
Statute of limitations
In New York, as with every state, there are definite time limitations - referred to as statutes of limitation within which a medical malpractice lawsuit must be filed or else it will be dismissed by the courts. A New York medical malpractice attorney who is skilled will be well-versed in the specifics of these deadlines. They will also ensure that your claim is filed within the deadlines stipulated by law.
In most cases, victims of medical malpractice has to make a claim within two and a half years from the date on which the act or omission of a healthcare professional resulted in the death or injury. However as with all laws there are a few exceptions to this rule. For instance, if the error of the health care provider was part of a continuous course of treatment, the 30 month mandatory "clock" will not start until that course of treatment is completed or the patient learns of the diagnosis.
In some instances, a patient may not discover the problem until quite a while later for instance when a foreign object remains in the body following surgery or treatment. For this reason, most states have enacted an idea of law known as the discovery rule that permits injured victims to extend these deadlines in certain situations. Your lawyer will be aware of the specific rules in your state, and will carefully go over the timeline of your case to avoid administrative errors that could delay your claim.