Illinois Medical Malpractice Law - An Overview
By Aaron Larson
Important Notice: The following overview of Illinois's medical malpractice laws is presented on an as-is basis. This information is believed accurate as of the date of authorship, but is not intended to provide a complete analysis of medical malpractice law and may not reflect subsequent changes in the law. For a full review of Illinois's medical malpractice law, or for a determination of how the law applies to a specific incident or injury, please consult a malpractice lawyer licensed to practice in the state of Illinois.
- What Is Medical Malpractice
- Limits on Malpractice Damages
- Collateral Source Rule
- Rules for Expert Witnesses
- Joint and Several Liability
- Statute of Limitations
- Limits on Attorney Fees
- Additional Rules
- Why Use A Malpractice Lawyer
Medical malpractice, sometimes referred to as medical negligence, occurs when a health care provider violates the governing standard of care when providing treatment to a patient, causing the patient to suffer an injury. Medical malpractice can result from an action taken by the medical practitioner, or by the failure to take a medically appropriate action. Examples of medical malpractice include:
- Misdiagnosis of, or failure to diagnose , a disease or medical condition;
- Failure to provide appropriate treatment for a medical condition;
- Unreasonable delay in treating a diagnosed medical condition;
Medical malpractice actions can be brought by the injured patient against any responsible licensed health care provider, including doctors, counselors, psychologists and psychotherapists.
Punitive damages are not recoverable in medical malpractice cases.
Under a traditional collateral source rule, a defendant may not seek to reduce its liability by introducing evidence that the plaintiff has received compensation from other sources, such as the plaintiff's own insurance coverage. For medical malpractice cases in Illinois, this rule has been modified such that if a defendant petitions the court within thirty days, up to 50% of the judgment may be offset by payments from collateral sources. The offset may include an amount equal to the sum of 50% of the benefits provided for lost wages or private or governmental disability income programs, which have been paid, or which have become payable to the injured person; and 100% of the benefits provided for medical charges, hospital charges, or nursing or caretaking charges, which have been paid, or which have become payable to the injured person. The plaintiff receives credit for any premiums paid, which resulted in payment from collateral sources. No offset is permitted for medical expenses which were directly attributable to the adjudged negligent acts or omissions of the defendants found liable.
An expert witness must be licensed in the same medical specialties as the defendant, and during the ten years preceding the filing of the complaint at least 75% of the expert's practice must have been devoted to treatment, teaching, or research relating to the treatment at issue.
Under the rule of joint and several liability, where more than one defendant is found liable for the injury suffered by a plaintiff, each defendant is individually liable for the entire amount of the judgment, such that if one defendant is unable to pay the other defendant or defendants are liable for the entire amount of the judgment.
Medical malpractice actions must be commenced within two years of the date of the act giving rise to the injury. If the injury cannot reasonably be discovered during that two year period, the lawsuit must be filed within four years of the date of the act giving rise to the injury. Under Illinois law, the Plaintiff may sue during a period of up to eight years after the act or occurrence giving rise to the claim, but under no circumstances after the age of 22.
Illinois limits attorney fees to 33-1/3% of the first $150,000.00 recovered, 25% of the next $850,000.00 recovered, and 20% of any amount recovered over $1 million. This amount is subject to review by the court, and the fee may be increased in appropriate cases.
Illinois requires plaintiffs to file a statement with their complaint attesting that they have consulted a medical expert in relation to their medical malpractice claims.
The court may order arbitration where the amount at issue is less than $50,000.00.
There is voluntary or discretionary payment of future damages awards in amounts greater than $250,000.00.
Medical malpractice law is a highly technical field of law, and malpractice lawsuits tend to be fiercely defended by well-funded defense firms.
Medical malpractice lawsuits can be exceptionally expensive to pursue, with costs often exceeding $100,000.00. Due to the technical skills involved in prosecuting a malpractice claim, the possibility that an inexperienced lawyer may not be sufficiently conversant with the medical issues, or might make a technical error which causes a case to be lost or dismissed, and the very high costs the malpractice law firm typically must advance, an injured patient is very well served by going with a specialist firm.
Even within the specialized practice of medical malpractice law, you will find that some lawyers have subspecialties of practice, for example focusing on surgical errors, misdiagnosis, or birth trauma cases.
Copyright © 2003-2011 Aaron Larson. All rights reserved. No portion of this article may be reproduced without the express written permission of the copyright holder. If you believe you may lawfully use a quotation, excerpt or paraphrase of this article under the Fair Use exception to copyright law, except as otherwise authorized by the author of the article, you must cite this article as a source for your work and include a link back to the original article from any online materials that incorporate or are derived from the content of this article.