What is Medical Malpractice and How Does It Work?
Takeaways on medical malpractice lawsuits:
• Medical malpractice is governed by statutes and strict laws
• Medical malpractice requires an expert review and affidavit
• Medical malpractice cases are extraordinarily costly and risky
• Medical malpractice plaintiff’s lawyers are paid on a contingency basis
Medical malpractice in Illinois is regulated by strict rules. Just because you undergo a medical procedure and have a bad result does not mean you have a malpractice case. Not every bad result is malpractice. Similarly, not every case of malpractice is worth a lawsuit.
The Law on Medical Malpractice in Illinois
The 622 Affidavit
The statutes governing medical malpractice lawsuits in Illinois require that, when filing a lawsuit alleging malpractice, you include (or include shortly thereafter — usually no later than 90 days later) an affidavit pursuant to 735 ILCS 5/2-622. This affidavit must be signed by a health care professional in the same or similar medical practice area as that of the alleged malpractice and must state:
- that the affiant has reviewed all of the medical records,
- that he or she believes, after that review, that the normal standard of medical care was not followed, and
- that, as a result of that failure to follow normal standards of care, the patient (plaintiff) was injured.
Failure to have such an affidavit means the lawsuit can be dismissed. There are circumstances where a lawsuit may be filed and a 622 affidavit filed at a later date, as I noted above. But generally, it is filed with the original complaint.
Time Limit to File a Medical Malpractice Lawsuit in Illinois
All medical malpractice lawsuits in Illinois must be filed within two (2) years of the alleged malpractice. This is known as the statute of limitations or SOL, which is governed by 735 ILCS 5/13-212(a). There are some exceptions that extend this period of time.
One exception is the “continuing treatment” exception. There, if the same doctor or facility continues to provide medical treatment to the injured person, the clock would start ticking from the last date of treatment, as long as that time does not extend more than four (4) years past the original date of malpractice.
There is also an exception in cases where the malpractice plaintiff was a minor at the time of the malpractice. There, the party has until two (2) years after reaching the age of majority — which is 18 years of age in Illinois — to file a lawsuit.
Also, a person who is “incapacitated” can have the statute of limitations extended. A person in a coma or under a mental disability would be entitled to wait until they are of sound mind or conscious before the clock on the SOL began ticking.
Why Are Medical Malpractice Cases So Expensive?
Medical malpractice cases are very costly. They almost never settle, so one must prepare for a trial. Going to trial can be expensive in any case, but it is especially true in the medical negligence arena.
There are a number of reasons why this is the case:
First of all, obtaining and reviewing medical records can be costly and time consuming. Fortunately, the HITECH Act makes it less costly to obtain records in electronic format.
Second, you must pay the 2-622 expert who provided your affidavit. Doctors typically don’t review thousands of pages of medical records and render opinions for free. Often, this initial screening of a potential case can run well into several thousands of dollars.
Third, there are experts, often lots of them, who must testify for depositions and at trial. In some bigger, multi-issue malpractice cases, each party may have as many as half a dozen experts each. Figure on at least $10,000 or more per expert, and costs for a trial of a malpractice case, including a “day in the life” video, and dozens of depositions and experts can often exceed $250,000.
Most Med Mal Cases Are Non-Starters
It turns out that many medical injuries or conditions that appear to be possible malpractice cases end up not being actionable . Often, the review of medical records by an expert can cost a medical malpractice attorney several thousand dollars to investigate — only to learn it is not a viable case.
As a result many medical malpractice attorneys stay away from less than stellar cases even before a medical expert has reviewed them.
Also, knowing that the costs in a malpractice case can reach the stratosphere (even a tiny “wrong tooth” dental malpractice case can run into the tens of thousands of dollars in costs), the only cases that are viable are those with horrific and permanent injuries. Further there are many cases where the potential malpractice plaintiff makes a great physical recovery and thus negates the rationale for a lawsuit.
Finally, the plaintiff’s attorneys all work on a contingent fee basis. They can recover up to one-third of the total amount received for the client. This is set out by statute (735 ILCS 5/2-1114). However, they only get paid if they win at trial or settle the case. So only the most meritorious cases are even worth evaluating.
Your Medical Malpractice Lawsuit: It is not matter to take on on your own.
Of course, there are the few and in between cases where a surgeon literally removes a healthy kidney and leaves the bad one (this just happened recently in another state!). In that situation, a resourceful plaintiff may even be able to convince the surgeon’s malpractice carrier to settle.
Unfortunately, the fact of the matter is, that this is something that cannot be expected.
Medical Professional insurers do not settle cases for fair value until they are forced to do so by a strong plaintiff’s case. The threat of a big verdict is the only thing that makes them give in.
A good medical malpractice lawyer will tell you honestly if your case is worth your time and money to pursue. If so, having the attorney’s help in properly taking each step in the process — and helping to fund the process before you win — makes a huge difference.
Contact Chicago Medical Malpractice Lawyer Stephen Hoffman
If you’ve been injured and you suspect medical malpractice, contact Chicago medical malpractice attorney Stephen L. Hoffman for a free consultation at (773) 944-9737.Stephen has nearly 30 years of legal experience and has collected millions of dollars for his clients. He is listed as a SuperLawyer, has a 10.0 rating on Avvo, and is BBB A+ accredited. He is also an Executive Level Member of the Lincoln Square Ravenswood Chamber of Commerce.