WHAT TO UNDERSTAND IF YOU’RE FILING A MEDICAL MALPRACTICE CASE IN ILLINOIS
October 2021 (Chicago, IL)
According to an astonishing recent report from Johns Hopkins University, medical malpractice is the third leading cause of death in the United States, accounting for roughly 225,000 deaths each year. Despite these staggering statistics, however, victims of medical malpractice generally experience problems with pursuing successful legal action against their negligent healthcare provider.
What Is Medical Malpractice?
Medical malpractice occurs when a doctor or other medical professional injures a patient by providing negligent medical care. This negligence may be the result of errors made in diagnosis, surgery, treatment, aftercare, or health management.
To be legally considered medical malpractice, the claim must have the following characteristics:
- A violation of the standard of care – Certain medical standards that are acknowledged by the law and recognized by the healthcare profession as being acceptable medical treatment by competent health care professionals are known as the standard of care. Every patient has the right to expect that his health care provider will deliver care that is consistent with these standards.
- An injury was caused by the negligence– It is not sufficient that a health care professional simply violated the standard of care for a medical malpractice claim to be considered valid. The injured patient must also prove that he or she sustained an injury that wouldn’t have occurred in the absence of negligence. In other words, an unfavorable outcome by itself is not considered malpractice. The patient must be able to prove that negligence caused their injury.
- The injury resulted in significant damages– For a case to be valid, the patient must demonstrate that significant damages resulted from an injury attained due to medical negligence. If the damages are minor, the cost of pursuing the case might be greater than the eventual recovery. To pursue a medical malpractice claim, the patient must show that their injury resulted in disability, loss of income, chronic pain, suffering and hardship, or substantial past and future medical bills.
Types of Medical Malpractice
Medical malpractice claims can be filed in several types of scenarios and can take many forms, from negligent actions to errors related to failure to disclose important information about a procedure or treatment. Generally, medical malpractice claims will fall under one of the following categories:
- Failure to diagnose
- Misdiagnosis
- Misreading or disregarding lab results
- Performing unnecessary treatment or surgery
- Surgical errors
- Improper medication or dosage
- Negligent follow-up or aftercare
- Premature discharge
- Disregarding patient history
- Failure to recognize symptoms
Pursuing Legal Action For Medical Malpractice In Illinois
If you’re thinking about filing a medical malpractice lawsuit in Illinois, it’s important to remember that strict procedures need to be followed, volumes of medical records must be sifted through and analyzed, and your ‘burden of proof’ is substantial.
Two concepts are particularly important to understand if you’re planning to file a medical malpractice lawsuit in Illinois:
- Statute of Limitation Laws
- Affidavit of Merit Requirements
Statute of Limitation Laws
It’s important to keep in mind that there are statutes of limitations which limit the amount of time you have to start your case in Illinois’ civil court system. Like many states, Illinois has a statute of limitations that specifically applies to medical malpractice cases. In Illinois, you must start your malpractice lawsuit against the doctor or other health care provider within two (2) years of becoming aware of the provider’s negligence in connection with your medical treatment.
But Illinois also follows a ‘statute of repose’, which states that regardless of when you discover that you were harmed by medical error, you cannot file a lawsuit against the provider if more than four (4) years have passed since the medical error occurred.
In other words, if your malpractice injury is discovered more than four years after the negligent conduct that caused it, your lawsuit will automatically be dismissed. There is also a specific filing deadline in the state of Illinois for lawsuits filed by (or on behalf of) a medical malpractice plaintiff who was under the age of 18 at the time that they were harmed.
These cases must be filed within eight (8) years of the date on which the medical negligence occurred, but such a case cannot be brought beyond the injured person’s twenty-second birthday.
Affidavit of Merit Requirements
Another important consideration if you’re planning to file a medical malpractice lawsuit involves the Illinois “affidavit of merit” requirement.
This requires you to attach an affidavit to the complaint (the document that starts the lawsuit) declaring that you (or your attorney) have reviewed the facts of your case with a qualified healthcare professional who:
- is knowledgeable regarding the medical issues pertinent to the case
- currently practices or teaches (or has practiced or taught within the past six years) in the area of medicine relevant to your case, and
- has experience and competence in the lawsuit’s subject matter
The affidavit must also include a written report from the consulted provider stating that “there is a reasonable and meritorious cause” for the lawsuit.
If you’re unable to arrange the required consultation with a qualified healthcare provider due to a looming statute of limitations filing deadline, the affidavit and documentation must be filed within 90 days after the filing of the malpractice lawsuit.
Failing to file this required affidavit will result in the dismissal of your medical malpractice lawsuit.
Seeking Justice For Your Medical Malpractice Case
Negligent medical treatment can result in thousands of dollars spent on additional health care and can potentially cause victims to suffer from permanent disabilities and chronic pain.
Medical malpractice lawsuits are complicated, and receiving compensation requires the expertise and experience of a knowledgeable and aggressive legal team. If you believe you’ve been the victim of medical negligence, our dedicated medical malpractice attorneys are here to help.
The Herbert Law Firm offers free, no-obligation case reviews and consultations to Chicagoans in need of experienced legal representation for their medical malpractice case. For a free confidential phone consultation, call us at 312-655-7660 or fill out our online form at https://danherbertlaw.com/contact/
