Medical malpractice cases involve allegations that a health care provider violated the governing standard of care while treating a patient, resulting in an injury to the patient. The harm from medical malpractice can result from either an action taken by the health care provider, or by omission, the failure to take a medically appropriate action.
A medical malpractice case may be pursued by an injured patient against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional.
Medical malpractice actions are normally based upon the theory of negligence, alleging that a medical professional violated a duty of care to a patient, resulting in an injury to the patient. Examples of medical malpractice include,
Failure to diagnose a medical condition or disease,
Misdiagnosis of a medical condition or disease,
Failure to provide medically appropriate treatment,
An unreasonable delay in the start of treatment for a diagnosed medical condition or disease;
Mistakes in the prescription or dosing of medication.
Medical malpractice cases may also result from the assertion that a patient did not give informed consent for a medical procedure, with the patient alleging that the procedure involved a material risk that was not properly disclosed by the physician, and that the patient would not have agreed to the procedure had the patient been aware of the risk. The proper performance of a medical procedure is not a defense to an informed consent action. While an informed consent case can potentially be based on an allegation of battery, in general the allegation will be that the outcome of the medical treatment was different than it would have been had the patient been able to make an informed choice.
Informed consent claims can also arise based upon changes to a course of treatment or surgery made after consent was given. In some contexts obtaining the patient's consent is not necessary, For example, in trauma care or cases involving a patient with a mental health problem it may not be possible to obtain consent prior to the commencement of medical treatment, or consent must be obtained from a third party such as a guardian, spouse or parent.
Damages in medical malpractice cases normally take the form of economic damages such as wage loss, the cost of medical care, and other out-of-pocket expenses, and non-economic damages for pain and suffering resulting from the injury.
Some states limit the amount of money that a person injured by medical malpractice can recover as compensation for non-economic damages. Although the Illinois legislature passed damages caps applicable to malpractice cases, those caps were held unconstitutional by the state's courts.
Joint and Several Liability
When more than one defendant is sued, under joint and several liability each defendant may be required to pay the full amount of the verdict. This policy helps ensure that a malpractice victim will be fully compensated even if one of the defendants has insufficient funds or insurance.
The Collateral Source Rule
Under the traditional collateral source rule, payments received by the malpractice victim from third parties such as medical insurance companies would not be considered in the calculation of damages. In Illinois, collateral source payments are not admissible during the trial of the case, but may be introduced after a verdict in order to reduce the amount of damages to be paid to a plaintiff. The damages awared may not be reduced by more thanb 50% based upon payments from collateral sources.
The statute of limitations limits the amount of time a person alleging medical malpractice has to file a lawsuit against health care providers. In Illinois, a medical malpractice claim must be filed within two years from the date of the discovery of the injury, but not more than four years from the date of the act or omission alleged to have caused the injury. For minors, a claim may be brought within eight years of the date of injury or before the age of 22, whichever period expires sooner.
Illinois law includes a general exception to the time limits otherwise imposed by statutes of limitation: If a plaintiff can show fraudulent concealment of the cause of action by a person alleged to be liable for the injury, the cause of action may be commenced within five years after the date the plaintiff discovered or reasonably should have discovered the injury.
Additional rules affecting malpractice litigation in the State of Illinois include:
Limits on Attorney Fees
Illinois limits by statute the award of attorney fees in a malpractice case to one third of the amount recovered. Where damages are to be paid in period future installments, a lump sum contingent fee is calculated after reducing future damages to a lump sum value.
Alternative Dispute Resolution
In Illinois, a health care provider and patient may enter into a binding arbitration agreement for the resolution of any malpractice claims. A minor's parent may bind a minor to an arbitration agreement. The provision of medical care may not be made contingent upon whether or not a patient agrees to binding arbitration of claims or disputes. The agreement must be separate from any other agreement entered into between the patient and the provider.
Certificate of Merit Rules
A certificate of merit is a document created by a medical expert, attesting that the expert has reviewed the facts of the case and finds there to be merit to the malpractice plaintiff's claim. In Illinois, a plaintiff in a medical malpractice case must file a certificate of merit as an attachment to the complaint, file an affidavit explaining that the declaration could not be obtained prior to filing due to statute of limitations concerns, in which case the declaration must be filed within ninety days after the filing of the complaint, or justify the non-filing based upon the defendant's non-compliance with the plaintiff's statuory right to examine and copy medical records.
Medical Expert Witness Restrictions
In Illinois, in order to qualify to testify as an expert witness in a medical malpractice case, the court must evaluate the relationship of the medical specialties of the proposed witness to the medical problem or problems and the type of treatment administered in the case, whether the witness has devoted a substantial portion of time to the practice of medicine, teaching or University based research in relation to the medical care and type of treatment at issue in the case, whether the witness is licensed in the same profession as the defendant, and whether, in the case against a nonspecialist, the witness can demonstrate a sufficient familiarity with the standard of care practiced in the state of Illinois.
An apology law prevents a plaintiff from using an apologetic or concilatory statement made by a defendant as evidence of the defendant's liability. In Illinois, neither the provision of nor the offer to provide medical care, rehabilitation, facilities or equipment, may be construed as evidence of liability.
If you believe that you have been injured by medical malpractice, a lawyer can help you by reviewing the facts and medical records of your case to determine if you have a viable case under the laws of your state. Medical malpractice cases are complex, and are very costly to litigate. Medical malpractice lawyers working on contingency fees will advance the cost of litigation, recovering those costs from the eventual verdict or settlement. A malpractice lawyer should be aware of changes in the law, and can help you avoid missing a filing deadline.