The Do’s and Don’ts of Pursuing Medical Malpractice Claims
Dec. 18, 2020
According to the American Medical Association (AMA), medical malpractice is the third leading cause of death in the United States. A 2019 study found that 195,000 patients die in hospitals every year because of preventable mistakes.
Though these mortality statistics point to the potential for medical malpractice lawsuits, death is not the only trigger for such legal actions. The top five allegations of medical malpractice stem from diagnosis (33%), surgery (23%), treatment (18%), obstetrics (10%), and medication/anesthesia (10%).
Illinois law mandates that a doctor employ the “knowledge, skill, and care ordinarily used by a reasonably careful” doctor in the community. If a doctor strays from that standard, either intentionally or through negligence, and a patient suffers injuries or death as a result, a medical malpractice lawsuit can be pursued.
If you’re in or around Naperville, Illinois, and you believe you have suffered from the actions of a physician, nurse, or hospital, contact the personal injury/medical malpractice attorneys at Marker & Crannell immediately for a free consultation.
Illinois Law Regarding Medical Malpractice Claims
Nationwide, about 85,000 medical malpractice lawsuits are filed each year, though the number appears to be rising. Of those lawsuits, about 90% are settled out of court due to the high costs and complexity of the proceedings. This does not mean, however, that a medical malpractice lawsuit favors the claimant. Proving a doctor is negligent or incompetent can be a challenging task.
If you believe you have grounds to pursue a medical malpractice lawsuit in Illinois, the first element to consider is time. Under state law, any claim must be filed within two years of the date you knew or should have known of any resulting injuries. Since some injuries or their symptoms may not appear immediately, the total time limit, or statute of repose, is four years for medical malpractice suits. In the case of minors, the limit is stretched to eight years.
Once the time test has been met, the plaintiff, or claimant, must file an “affidavit of merit” along with the lawsuit, which is due no later than 90 days after filing. Without such an affidavit, the lawsuit will most likely be dismissed.
The affidavit, which is a written report from an outside health care professional, must show that "there is a reasonable and meritorious cause" for the lawsuit. The reporting health care professional must be:
Knowledgeable about the medical issues in the case
Currently practicing or teaching in the area of medicine pertinent to the case (or has been within the past six years)
Experienced and competent in the lawsuit’s subject matter
Who Can Be Sued and What Are the Compensation Limits?
Illinois is a comparative negligence state, which means a couple of things: First, you can sue not only the doctor but also the hospital and others involved in your resulting injury or injuries. Second, if it can be shown that you were more than 50% at fault (by not following through on your treatment or medication, for instance), then you cannot collect damages. Similarly, if you’re found to be, say, 20% at fault, then the compensation can be reduced by that percentage.
To bring a lawsuit, you must show that:
The medical practitioner or health care facility owed a duty to you, the plaintiff
A surgeon, doctor, nurse, staff assistant, or hospital administrator (or a combination) breached that duty
That breach led directly to and caused your injuries
You suffered actual injuries that you can prove
Illinois places no caps on damages due to medical malpractice or negligence. Compensatory damages include lost wages, medical expenses, and other forms of economic loss. Non-economic loss — for pain and suffering, disfigurement, and/or disability — was capped at $500,000 in 2005 by the Illinois legislature, but since then several courts have ruled the measure unconstitutional.
The Do’s and Don’ts of Filing
If you seek to file for medical malpractice, you must document your experience thoroughly, including obtaining copies of your medical records and even keeping a diary of events as they play out, leading to the discovery of your injuries. Document your injuries in writing or in photos, or both, if possible.
At the same time, you must be on your own best behavior. Don’t argue with or threaten your doctor or other health care professional. Adhere to your treatment and medication plans as much as possible. If your medication seems to be the issue, consult with the doctor for an alternative. Discuss treatment options with the doctor if you feel that could be a cause. Seek a second opinion if in doubt.
Most of all, hire competent and experienced legal representation to carry your case forward.
How Marker & Crannell Can Help
At Marker & Crannell, our attorneys have both the legal expertise and experience to take on the large law firms that will be hired to represent the healthcare professionals being sued. Medical malpractice claims are complex and often difficult to prove. With our 35 years of experience and record of millions of dollars recovered each year for our clients, we will fight diligently to obtain your just compensation.
If you reside in Naperville or in the nearby communities of Aurora, Joliet, or Wheaton, contact us immediately for a free consultation. We can meet by phone, by Zoom, or in person.