What if a doctor actually harmed your health, instead of making it better?
Doctors are human and they make mistakes. But you could be entitled to compensation if their actions were negligent and caused you harm or worsening illness.
You want to be able to trust your doctor. But health care has taken a beating lately, and many health care providers are overworked, stressed, burnt out, and depressed—which can lead to mistakes when caring for patients.
Medical malpractice is more than just a mistake. It’s negligence.
Under Illinois law, medical malpractice is when a patient is injured or dies because of treatment by a healthcare professional or facility that violates the established standards of care and practices that would be performed by other health professionals treating a patient with similar symptoms.
"Treatment" encompasses almost any encounter with a medical professional, ranging from a missed diagnosis to incorrect prescription medication to surgical mistakes, and more.
How much time do you have to file a lawsuit for Illinois medical malpractice?
An Illinois medical malpractice victim has two years to file a lawsuit from the date they knew or should reasonably have known about the injury. If it’s a child under age 18, they have up to eight years to file, but it cannot be beyond their 22nd birthday.
Although the clock begins to run on the date you reasonably should have known about the injury, you cannot file a medical malpractice lawsuit more than four years after the date of the underlying medical error.
If you do not file a lawsuit within the allotted time, the court will likely decline to hear your case.
What is an Illinois “affidavit of merit” for a medical malpractice claim?
An Illinois plaintiff in a medical malpractice claim must include an affidavit indicating they have consulted a medical professional who meets these criteria:
- Knowledgeable about the medical issues involved in the claim;
- Currently practices or teaches (or has within the past six years) in the area of medicine at issue in the case; and
- Is experienced and competent in the particular issue of the claim.
The health professional must provide a written report saying that there is a reasonable and meritorious cause for the lawsuit.
Receiving damages for an Illinois medical malpractice claim
An Illinois medical malpractice plaintiff may receive economic damages associated with their claim. In other words, they’re entitled to be compensated for costs that include medical treatment, lost wages, disability expenses, etc.
You may also receive non-economic damages, which include pain and suffering, loss of enjoyment, anxiety, loss of consortium and other things that are subjective and don’t have a specific financial value.
As of 2010, there are no caps on damages for either economic or non-economic damages for Illinois medical malpractice.
However, a medical malpractice claimant in Illinois may not receive punitive damages.
Proving medical malpractice in Illinois
The victim has the burden of proving medical malpractice. They must show:
- The appropriate standard of care in their particular situation; and
- How the doctor or facility violated the standard of care.
These cases can be complex and often require multiple experts and a variety of medical documentation to provide enough proof for a victim to have a successful case. It could also require exposing most or all of the patient’s medical history, which could include sensitive topics or conditions—a plaintiff needs to think long and hard about the benefits of this type of case and whether this is something they wish to pursue.
Common types of medical malpractice lawsuits
Misdiagnosis or delayed diagnosis
This can happen if a doctor confuses symptoms for a different condition, or they don’t take the patient’s observations or complaints seriously. This sometimes leads to a worsening condition because of a delay in beginning treatment or unnecessary and incorrect treatment.
Medication errors
There are a lot of checks and balances in place to help ensure the patient receives the correct medication. For instance, pharmacies have systems to check whether a patient has an allergy or a contraindication with another medication.
However, sometimes mistakes pass all the stops. A person can become sick from taking the wrong medication, the right medication at the wrong strength or dosage, or a medication that they’re allergic to or that is contraindicated with another drug they’re taking.
Childbirth injuries
It could be malpractice if the doctor or hospital does not properly monitor the mother or baby’s vital signs, doesn’t order a Cesarean section when necessary, or improperly handles forceps or vacuum deliveries. There are also situations when the doctor does not appropriately diagnose a medical condition for either the mother or the baby, which can lead to complications.
Surgical errors
You might be going in for a "minor" surgery, but it’s never minor if you’re the patient.
Surgical mistakes include:
- Performing the wrong procedure on the wrong patient
- Leaving an instrument, sponge, or other foreign object inside the body
- Failing to properly sterilize instruments
- Performing the procedure on the wrong part of the body
- Anesthesia errors
Should you file an Illinois medical malpractice lawsuit?
There are a lot of factors involved in determining your likelihood of winning a medical malpractice lawsuit in Illinois. Medical malpractice lawsuits are notoriously difficult for plaintiffs to win.
There are a few reasons why patients choose not to file a malpractice claim (and why they should):
- Patients who live in a community with limited resources and few options for doctors or hospitals might be concerned that if they file a lawsuit, their existing doctors or hospital will refuse to treat them in the future.
However…
A doctor must uphold a standard of care for all patients, regardless of the status of a lawsuit or complaint. Seeking compensation through an insurance settlement or lawsuit should not affect the quality of your care. - The hospital or its insurer might offer the patient a settlement. If the patient agrees to the settlement, they cannot file a lawsuit for the same incident.
However…
Settlements are often “lowball” offers and could be dramatically lower than what you would receive through litigation. Before accepting any settlement offer, any patient should consult a medical malpractice lawyer to determine what their damage amount should be. A lawyer will consult medical professionals, actuarial experts, and financial experts to explore what both your current and future expenses will be and to ensure you’re receiving the correct amount to which you’re entitled. - A patient might believe that evidence is lacking or insufficient for proof of malpractice. Sometimes, this is enough for them to drop the claim.
However…
A patient is usually not a medical expert; you’d be surprised at what your lawyer and their experts can find that supports your case. - Some victims are afraid to begin a lawsuit because they think legal costs will be too high. They might think the costs of litigation will be more than any potential damages they could receive.
However…
Most Illinois medical malpractice lawyers work on a contingency basis. That means you don’t pay your lawyer up front and they don’t earn money unless YOU receive money. After the case is settled or damages are awarded, your lawyer receives a percentage of your total compensation.
An Illinois medical malpractice lawyer may earn no more than 33.3% of the first $150,000 in damages and 25% of the next $850,000, and 20% of any damages more than $1 million.
While the choice to pursue an Illinois medical malpractice lawsuit is yours, alone, if you suffered a serious injury or illness from a physician or medical facility’s negligence, it might be worth seeking compensation. If you believe you’ve been a victim of medical malpractice, an Illinois personal injury lawyer is the best person to advise on your legal options and likelihood of a successful lawsuit.
Related read: What to Do If You Suspect Illinois Nursing Home Abuse or Neglect
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