Marker & Crannell
When Doctors Make Mistakes, Their Patients Pay the Price
We trust doctors with our health and leave life or death decisions in their hands. Doctors undergo extensive education, training, and licensing to qualify them to be put in this unique position of trust. Doctors, however, are human and make mistakes. Doctors, hospitals, and even nurses carry malpractice insurance because they know that because of their position of trust, any mistakes they make can be very costly if not deadly. When a doctor, hospital, nurse or other medical care makes a mistake, and the patient sustains serious injuries or dies as a result, you should consult with an attorney immediately.
What is Medical Malpractice?
A medical malpractice claim is also known as a medical negligence claim. A plaintiff must prove that the medical professional owed the patient a duty, the professional breached that duty, and that the breach of duty caused damages.
A doctor owes his or her patient a duty to exercise the knowledge, skill, and care of a reasonably well-qualified healthcare provider in the same or similar circumstances. There is no book or hard and fast rule as to what the standard of care is in every situation. Rather, it usually requires the testimony of an expert physician in the same field of medicine to prove what the standard of care was and that the defendant acted outside of that standard of care. Sometimes, a physician group's or hospital's bylaws and/or policies and procedures can help establish the standard of care in some cases.
Some of the most common medical malpractice cases arise from one or more of the following:
- Failure to diagnose (e.g. failing to diagnose cancer)
- Failure to treat (e.g. failing to examine a patient in need of medical care)
- Failure to obtain informed consent (e.g. failing to disclose material risks of a surgical procedure)
- Contamination (e.g. using contaminated or dirty surgical equipment)
- Failure to prescribe or incorrectly prescribing medication (e.g. not prescribing medication which should have been prescribed or prescribing the wrong dosage or type of medication)
- Battery (e.g. where a procedure is performed without consent)
In addition to past medical bills, medication, lost wages, loss of society, loss of consortium, and loss of a normal life endured through the point of settlement or verdict, if your injury causes you damage that will last into the future, you may be awarded an amount for future damages.
Why Medical Malpractice Victims Pay the Price for Doctors' Mistakes
There are so many hurdles to having a viable medical malpractice claim that the result is most medical malpractice cases are turned down by attorneys, leaving the victim holding the bag. But it isn't our fault - the hurdles we are talking about can be so big that the victim and the law firm are more likely to lose money than to recover any. Here's how that works:
First, doctors' medical malpractice insurance policies are generally "consent policies," which means the insurance company needs the doctor's consent before they are allowed to settle a claim. Doctors rarely give consent because payment of a claim is reportable to the Illinois Department of Financial and Professional Regulation and can harm their reputation, their premiums will likely increase, and they are typically not the type of person who easily admits when they are wrong.
Second, there is a lot of grey area in medical malpractice. There is no set standard of care. Just because Doctor X did a procedure differently than Doctors A and B and his patient was injured doesn't mean Doctor X acted outside the standard of care. Also, a bad outcome does not mean malpractice. The law recognizes that sometimes a good doctor performs within the standard of care and a bad outcome is possible. The doctor must have done something wrong to be liable and that wrong thing has to be the cause of the injury.
Third, medical malpractice cases are EXPENSIVE to pursue. The cost of bringing a medical malpractice case to trial will typically be more than $100,000, and in some cases more than $1,000,000. The costs are mostly comprised of expert witness and consulting witness fees. The only way to prove a doctor acted outside the standard of care is to hire another doctor to say so. The hired expert will need to teach the attorney everything he/she needs to know about the treatment/procedure, the standard of care, and how the injuries were caused by the doctor's deviation from the standard of care. The expert will give at least one deposition and testify at trial. For each specialty being sued, your attorneys will likely have an expert. These experts bill by the hour and are very expensive.
Fourth, even if you don't go to trial, just to file the lawsuit you need an expert. Illinois requires a "merit affidavit" to be filed within 90 days of filing a medical malpractice lawsuit. This requirement mandates that a doctor of the same specialty file an affidavit after reviewing the medical records and state that the defendant doctor deviated from the standard of care when he/she _____ which deviations proximately caused the following injuries_____. This alone will costs tens of thousands of dollars.
Lastly, medical malpractice cases have the lowest success rate at trial of only about 40%. This means 60% of the time a jury will say the plaintiff gets nothing...and the plaintiff's lawyers have lost the tens or hundreds of thousands of dollars they invested in the case. Jurors don't like the idea of holding doctors responsible for their mistakes because they fear that doctors will leave the state, medical costs will rise, and because doctors are revered as human heroes.
This all means that the mistakes the doctor made have to have resulted in terrible injuries in order for the case to be worth pursuing...it doesn't make sense to spend $200,000 on a case that is worth only $100,000. In other words, because of hurdles in the way of a medical malpractice victim, doctors can generally make mistakes that result in small, medium, and even some large injuries and they will not even so much as have their wrist slapped. Typically, only catastrophic injuries are worth pursuing, like paralysis, birth injuries leading to lifelong injuries, permanent major disability, dismemberment, and death.
Call today for a FREE consultation: (630)995-9995. We will take the time to discuss the details of your case and answer your questions.