Medical malpractice is a form of negligence that occurs when a medical facility or healthcare professional does not provide the standard of care required in their industry or profession. Healthcare professions, services, and facilities that are subject to medical malpractice under Illinois law include:

• Physicians
• Surgeons
• Chiropractors
• Nurses
• Ambulance Services
• Acupuncturists
• Pharmacists
• Optometrists
• Dentists and dental hygienists
• Assisted living facilities
• Podiatrists
• Psychiatrists and psychologists
• Hospitals

The Centers for Disease Control and Prevention lists accidents and unintentional injuries as the third leading cause of death. Medical malpractice incidents fall within the category, with an average of 250,000 patients dying from medical malpractice every year. From 2017 to 2019, Illinois had over 6,000 deaths due to unintentional injuries. In 2020, the number increased to more than 7,000. Although some patients may die because of medical negligence, other patients may suffer mild, severe, or life-altering injuries.

Such medical negligence may arise because of an at-fault party’s actions or failure to act. Examples of medical malpractice are:

• Failure to diagnose
• Misdiagnosis or delayed diagnosis
• Improper medication
• Overdosage
• Improper testing
• Failure to test or examine
• Unnecessary or incorrect surgery or treatment
• Misreading, misinterpreting, or ignoring lab results
• Aftercare or post-operation errors
• Prescription and medication errors
• Birth injuries

The negligence may result in injuries to or death of a patient. The injured person may seek compensation for his injuries by filing a medical malpractice lawsuit. If the patient dies, the surviving family members file a wrongful death case for the negligence and loss of their loved one.

What is the medical standard of care?

Businesses must operate in the manner required by law and their industries. Workers must also perform their jobs with the care set forth by their professions. Companies and employees that provide medical services have a duty to meet their respective medical standards of care.

The medical standard of care requires a healthcare facility or professional to perform their jobs in the manner a similar facility or professional would reasonably do under the same or similar circumstances. Illinois law bases the standard of care on what the medical community widely accepts for each type of healthcare facility or profession. The guidelines for standards of care may be informal or formal. Each medical occupation may develop its standard by having it in writing as a duty or repetitive behavior performed throughout the years.

Who can file a medical malpractice lawsuit?

A patient can file a medical malpractice lawsuit if they suffered injuries from the negligence of a healthcare institution or professional. However, if the patient dies due to medical negligence, the surviving family members may pursue a wrongful death case arising from medical malpractice.

Under the Illinois Wrongful Death Act, the personal representative of the deceased person’s estate files the lawsuit. The case is for the benefit of the deceased’s surviving spouse and next of kin. A representative may be the executor named in the deceased’s will or an administrator appointed by a court when a person dies without a valid will.

How long do you have to file a medical malpractice case?

Medical malpractice cases are subject to deadlines set forth by statutes of limitations, which require people to file lawsuits within a certain period. If they fail to meet the time limits, Illinois law prevents them from filing the case for the specific claim in the future.

The statute of limitations to file a medical malpractice case is two years from the date of the injury. However, in some cases, the patient may not know that medical negligence occurred. In such cases, the statute of limitation is two years from the date the person first knew or should have known of the malpractice. Even if the patient discovers the injury later, they cannot bring medical malpractice lawsuits more than four years from the date of the occurrence alleged in the case.

People who have a medical malpractice injury may toll a statute of limitation if they have a legal disability, such as age or mental incompetence, that removes their legal capacity to sue. Tolling means that the clock stops running on the deadline to file a lawsuit. If the person had a legal disability, other than being a minor, when the malpractice occurred, the statute of limitations does not begin to run until the person no longer has the disability. If the person becomes legally disable after the medical malpractice injury date, the time stops on the statute of limitations until the disability is gone.

Can minors file a medical malpractice lawsuit?

Minors who suffer an injury due to medical malpractice can seek compensation. However, a person under eighteen years old cannot file a lawsuit in his or her name. Instead, the parent, guardian, or another legal representative must file the case on behalf of the minor.

The statute of limitations differs for medical malpractice cases that involve minors. Under Illinois law, a person who suffered an injury or died when he or she was under 18 years old has eight years from the date of the incident to file a medical malpractice lawsuit. The exception to the eight years is that the minor patient cannot file the lawsuit after turning 22-years-old.

How do you file a medical malpractice case?

More than 10,000 medical malpractice reported cases filings occurred in 2019 nationwide. To begin the medical malpractice lawsuit, the plaintiff or attorney must file a complaint with an attached affidavit of merit with the appropriate court. The affidavit is a document that states that the person filing the medical malpractice case or the person’s attorney consulted a medical professional regarding the issue of the lawsuit. Also known as a certificate of merit, the affidavit must declare one of the following:

• The plaintiff or plaintiff’s attorney consulted and reviewed the facts of the case with a healthcare professional of qualified experience and knowledge of the relevant issues whose written report show that the claim is reasonable and has merit to pursue a lawsuit;
• The plaintiff or plaintiff’s attorney could not get the required consultation with a healthcare professional before the statute of limitations ended; or
• The plaintiff or plaintiff’s attorney requested medical records from a person, facility, or entity that failed to produce the documents, which a healthcare professional needs for the required consultation

How do you prove medical malpractice occurred?

The burden is on the plaintiff to prove that medical malpractice occurred. The patient must show: the following elements:

• The standard of care in the medical community that the defendant must meet;
• The defendant failed to meet the standard of care; and
• Failure to meet the standard of care caused the actual and legal injury to the plaintiff

Some medical malpractice cases do not require the plaintiff to establish the elements of medical negligence. For example, in a medical malpractice res ispa loqutior case, the court concludes that the injury could not happen without the defendant’s negligence. The judge may make the conclusion based on common knowledge or testimony from a medical expert.

What are the damages in a medical malpractice case?

In 2018, defendants in medical malpractice lawsuits paid approximately $4 billion to plaintiffs. The payouts result from a settlement between the parties or a verdict by a judge or jury. The amount awarded to the plaintiff is the recovery of damages sustained from the incident and its resulting injuries. Damages are the monetary awards plaintiffs may receive if they win or settle their lawsuits.

In a medical malpractice case, the plaintiff may seek compensatory damages are for any economic and noneconomic losses from the incident. The injured party may have economic damages, such as lost wages, earning capacity, and medical expenses. The plaintiff’s emotional, psychological, and physical harms are noneconomic damages, such as pain and suffering, emotional distress, physical impairment, and disfigurement. Compensatory damages may account for the losses already accrued and damages that may arise after the case lawsuit ends. The future damages may include compensation for future needs of the plaintiff because of medical malpractice injuries, including care or custody, future medical treatment, future loss of earnings, and future pain, suffering, impairment, or inconvenience.

Under Illinois law, plaintiffs in medical malpractice cases cannot receive punitive damages. Court award punitive damages to punish the defendants whose conduct toward the plaintiffs was malicious, intentional or fraudulent.

Hiring a Waukegan medical malpractice attorney

Medical malpractice cases can be complex and time-consuming. The injuries patients sustain may require prolonged recovery and result in high medical expenses. It is best to have an experienced Illinois medical malpractice attorney handle the case. Contact Briskman, Briskman & Greenberg today at 1-877-595-4878 for a free consultation.