When you seek medical care, you expect that this will be the first step toward better health. No one goes to the doctor expecting to get worse.
Unfortunately, many people suffer harm every year as a result of medical negligence. Although you may be confident that a doctor or other medical professional did something wrong, resulting in the decline of your health or the loss of your loved one, actually proving that this was the case is much more difficult than it seems.
An experienced medical malpractice attorney can help you determine if the negligence of a healthcare provider was the cause of your injuries or the death of your family member. To build an effective claim, your lawyer will need to overcome the following challenges:
1. Establishing the Standard of Care
In order to prove that a healthcare provider (such as a doctor, nurse, etc.) was negligent, your attorney must first present evidence that the provider deviated from the accepted course of medical action. This is known as the standard of care.
The standard of care is what a healthcare provider with similar qualifications would do (or not do) in caring for a patient in a given situation. Proving that a practitioner violated the standard of care generally requires hiring an expert witness in the same field or specialty as the defendant to testify as to what the standard is and how the provider’s failure to follow it harmed you.
Even with qualified expert testimony, proving that the practitioner violated the standard of care can be challenging. Doctors and other healthcare professionals are not expected to be perfect, and they are allowed some degree of latitude in making decisions (especially in emergency situations).
So, a bad outcome by itself does not mean that your doctor or another member of your medical team was at fault. Your medical malpractice attorney must prove that the practitioner failed to uphold the standard of care, and this failure constituted subpar treatment that ultimately caused you harm.
2. Causation Is Difficult to Prove
The most challenging question in many medical malpractice claims is: Did the negligence of the provider cause the patient injury? After all, patients suffering from serious illnesses or undergoing risky medical procedures may suffer adverse effects in spite of the practitioner’s best efforts.
Medicine is a complex field. A variety of different factors can impact a patient’s health. Therefore, to prove causation in a medical malpractice claim, your attorney will need to do the following:
- Thoroughly evaluating your medical records to determine what tests were performed, what treatments you received, what medications you were prescribed, etc.
- Reviewing your medical history; if the provider failed to take a full history or overlooked a drug allergy, prior health condition, etc. and pursued a harmful course of treatment as a result, you may have grounds for a medical malpractice claim
- Hiring medical experts to assess the records and testify as to how the errors of the practitioner caused you injury
Gathering medical records and other evidence is time-consuming, and the information within is complicated. Finding an expert with the right qualifications is difficult for a layperson, and hiring them is generally prohibitively expensive.
With all of these factors in mind, it is in your best interest to contact a medical malpractice attorney to handle the case on your behalf.
3. Calculating Your Damages
In addition to proving that you suffered harm as a result of medical malpractice, you must be able to prove that you sustained losses as a result of the healthcare provider’s negligence. Experienced medical malpractice attorneys work with medical and economic experts to calculate and gather proof of the damages you have incurred.
You may be entitled to compensation for the following losses in your medical malpractice claim:
- Current and future medical bills
- Lost wages
- Loss of earning capacity
- Out-of-pocket expenses
- Pain and suffering
- Emotional anguish
- Disfigurement and scarring
- Loss of enjoyment of life
- Loss of consortium
Unlike a number of other states, New York has no cap on damages in medical malpractice claims. However, to recover the full compensation you deserve, it is important for your attorney to collect all of the evidence necessary to prove your claim.
4. Certifying the Merit of Your Medical Malpractice Claim
New York is one of several states that requires medical malpractice claimants to submit evidence that their case has merit before it can proceed. In New York, you must include a certificate of merit as part of the initial filing.
What Is the Certificate of Merit?
To obtain a certificate of merit, your attorney must consult with a qualified medical professional “who is licensed to practice in [New York] or any other state and who the attorney reasonably believes is knowledgeable in the relevant issues involved in the particular action.” If “the attorney has concluded on the basis of such review and consultation that there is a reasonable basis for the commencement of such action,” your lawyer can execute the certificate of merit.
It is important to understand that submitting a certificate of merit does not “prove” that medical malpractice occurred in your case. Rather, it demonstrates that your attorney has consulted a qualified medical expert who offers an opinion on whether or not your claim has merit.
Ultimately, your attorney will need to gather and present evidence of medical malpractice for you to obtain a favorable result. The certificate of merit is just a starting point in your claim.
5. Handling Your Claim
Generally, the medical malpractice insurance company will represent the doctor or other provider in legal proceedings. Medical facilities also carry malpractice insurance, and some institutions have their own in-house counsel.
All of these parties know how complex medical malpractice claims are. They also know that juries tend to favor doctors when medical malpractice cases go to trial. As a result, insurance companies – confident that victims and their attorneys are unprepared to surmount these challenges – may deny a medical malpractice claim or offer a low settlement in order to resolve the matter quickly, quietly, and inexpensively.
With these issues in mind, it is important to work with an experienced attorney who is committed to fighting for the compensation you are owed. Your medical malpractice attorney should be prepared to negotiate for a fair settlement and, if necessary, take your case to trial.
Contact Our Medical Malpractice Attorneys Today
As you can see, medical malpractice litigation is a complex undertaking. It is important to have skilled legal representation on your side to investigate the care you received and gather evidence of negligence on the part of a medical provider.
The attorneys at O’Connor & Partners, PLLC have more than 150 years of combined experience serving clients in medical malpractice claims and other complex injury cases. We have earned millions of dollars on behalf of clients who have suffered serious injuries as a result of medical negligence.
Please call (845) 303-8777 today for a free consultation with O’Connor & Partners, PLLC. Our medical malpractice attorneys serve clients in Kingston, Poughkeepsie, Newburgh, and throughout the Hudson Valley region of New York.