Around 40 hospitals around Chicago have over 7,600 medical and surgical beds and more than 1,500 ICU beds. About 22,000 physicians practice medicine in Illinois. These physicians must provide patients with care that meets specific standards. For example, they must avoid surgical errors that harm the patient.
If a physician's surgical error injured you, talking to an experienced Chicago medical malpractice attorney can help you understand your legal options. Contact Zayed Law Offices to determine whether you can seek compensation for your losses.
What Is a Surgical Error?
A surgical error is any preventable mistake made during surgery. If the surgical error injures the patient, they can bring a medical malpractice claim against the parties who caused the injury. The patient can claim compensation from the at-fault provider's medical malpractice insurance for all expenses incurred due to the mistake.
Types of Surgical Errors
Each year, doctors perform more than 48 million surgical procedures in the U.S. The most common surgical procedures alleviate symptoms of heart disease, like cardiac catheterization. Endoscopy of the small intestine is another of the most common surgical procedures in the U.S., as are hysterectomies and Cesarean sections.
All surgeries carry risks, such as interactions with anesthesia, uncontrolled bleeding, and infection. Surgeons should carefully explain these risks to the patient before performing the procedure. This way, the patient can make an informed choice whether to move forward with the surgery. Unfortunately, physicians usually don't tell their patients about the potential for surgical errors.
Here is a list of some of the most common surgical errors in Chicago hospitals.
- Failure to inform: Doctors must explain surgical risks before obtaining the patient's consent for the procedure. Suppose a patient would have likely requested a different treatment option and they experience known risks that the physician did not disclose. In that case, there is potential for a medical malpractice claim.
- Leaving a foreign object inside the patient's body: This occurs when the surgical staff mistakenly leaves a tool such as a clamp or a surgical towel in the body cavity during surgery. Foreign objects left in the body during surgery can result in infection, pain, or even damage to internal organs.
- Wrong-site/ wrong patient surgery: These mistakes include a health care provider performing surgery on the incorrect part of the patient's body or even on the wrong patient. This type of error is relatively rare, only occurring in a hospital every five to 10 years. However, it is a serious enough issue that physicians receive training to avoid it. They may mark the correct area of the body for surgery. Additionally, many hospitals and surgical centers have implemented a “surgical timeout” before each procedure so providers can review essential aspects of the procedure and communicate details to one another before beginning surgery.
- Anesthesia errors: Anesthesiologists sometimes make preventable mistakes when administering anesthesia to patients. Common errors include:
- Administering too much anesthesia, which can result in death;
- Administering too little anesthesia, which can cause the patient to wake up during surgery;
- Delaying the delivery of anesthesia;
- The doctor failing to ask whether the patient is allergic to anesthesia before administering it;
- The provider failing to prevent interactions between anesthesia and medications that the patient is already taking; or,
- Failing to consider the impacts of anesthesia on the patient's blood pressure or blood supply to the brain
- Unnecessary surgery: According to one survey, over 11 percent of all surgical procedures in the U.S. are unnecessary. Specialists and physicians with at least ten years of post-residency experience were more likely than new doctors to believe that surgeons performed these unneeded procedures for extra profits. Other commonly cited reasons for performing unnecessary surgery included fear of malpractice, patient
- Hospital-acquired infection: Infections are a common and well-known risk of any surgical procedure. However, patients may acquire an infection unrelated to their surgery or health status. These hospital-acquired infections can result in life-threatening conditions, such as sepsis, which causes all the body's organs to shut down and leads to death.
- Premature discharge: After surgery, physicians and staff should monitor patients for potential complications. In recent years, hospitals have become overcrowded and understaffed. The lack of resources means that staff may not monitor patients as carefully. It can also cause lapses in the cleaning and safe handling of supplies used to treat patients, endangering patients.
- Improper follow-up care: Besides monitoring patients after a surgical procedure, doctors should also provide follow-up care. Follow-up care may include giving home-care instructions, checking the patient's surgical site to ensure it is healing correctly, and evaluating whether the procedure met its objectives. Failing to provide this vital care leaves the patient open to complications that could go unnoticed and untreated.
The Surgical Medical Malpractice Claims Process
Not all surgical errors lead to a medical malpractice claim. Medical malpractice only occurs if a medical professional makes an error that results in an injury. Unfortunately, bad surgical outcomes happen and are not considered malpractice. In other cases, errors occur during surgery but do not cause damage. An experienced Chicago surgical error lawyer can evaluate your case and help you understand whether you may seek compensation through the medical malpractice claims process.
Hiring an Attorney
Medical malpractice victims may hesitate to seek assistance from a lawyer because they fear they cannot afford legal fees. However, this is often a needless worry, as most personal injury lawyers—including those who work on medical malpractice claims—work on a contingency fee basis. A contingency fee means that you do not pay for your lawyer's services until your claim has a positive outcome.
Medical malpractice claims are complicated; you do not want to attempt to file a claim without a lawyer.
The legal process includes:
- Obtaining a certificate of merit from a health care provider
- Managing the time limits involved in a legal claim
- Understanding the rules for gathering evidence
- Negotiating a settlement
- Valuing the claim
You must also review and consider a tremendous amount of medical documentation about the injury. It is crucial to have a lawyer and their legal team assist you in the legwork involved in this type of claim and provide guidance to make informed decisions about your case.
Valuing Your Claim
Once you've hired an experienced Chicago surgical error lawyer to help you with your claim, they can estimate the value of your case.
Factors that affect claim value include:
- The severity of your injury
- The likelihood of permanent disabilities that will result in a loss of future earning capacity
- The amount of insurance coverage the at-fault party has to provide for your compensation
- The risk of negative publicity for the hospital where the surgeon made the error
- The expenses of going to court
These factors motivate medical malpractice insurers to take settlement negotiations seriously. The vast majority of medical malpractice claims result in an out-of-court settlement to avoid the costs of negative publicity and litigation.
Medical malpractice lawyers generally establish two case values for surgical error claims—a settlement case value and a trial case value:
- The settlement case value is the amount that the insurer can offer to compensate victims for their losses.
- The trial case value is often much higher. The settlement value accounts for litigation costs and uncertainty that the insurer avoids by offering out-of-court compensation. However, when a case goes to trial, litigation expenses skyrocket.
Filing Your Claim with the Insurer
Once your Chicago surgical error lawyer establishes your claim's value, they will send a demand package to the at-fault party's medical malpractice insurer. This package explains the facts of your case, documents your injuries, and demands payment for the claim's value. The insurance provider will review the claim and conduct an investigation. They may interview the surgeon, the hospital facility, witnesses, and even have questions for you.
Once they have performed their review, they can:
- Admit to the liability of their insured and pay the demand in full.
- Deny your claim and notify you of the reason for the denial.
- Make an offer of less than the claim's value to settle the case out-of-court.
If the medical malpractice insurance provider offers a settlement, do not be surprised if it is much lower than the value your lawyer estimated. Insurance providers rarely make an initial offer that is close to the total value of the claim. Your lawyer can negotiate with the insurer on your behalf to get them to increase their offer.
While your surgical error lawyer can negotiate on your behalf, they cannot unilaterally decide to accept a settlement offer, as that is your decision to make. They can, however, guide you to ensure that you can make informed decisions.
Filing a Medical Malpractice Lawsuit
If the insurance provider fails to make a settlement offer that fairly compensates you for your injury, you can file a medical malpractice lawsuit in civil court. The statute of limitations for medical malpractice claims in Illinois is two years from when the claimant knew or reasonably should have known that they suffered an injury due to a surgical error.
Sometimes, however, a victim might not discover an error immediately. For example, a foreign object such as a tool or a sponge left in the body after surgery may not cause problems for several years. Illinois' law provides for the reasonable discovery of the item within four years of the surgical error. Speak to a surgical error lawyer in your area to determine how long you have to file a claim.
Affidavit of Merit
To file a medical malpractice claim in court, your lawyer must attach an affidavit of merit. This document states that your lawyer has consulted with a health care professional about the claim. The health care professional states that a lawsuit is reasonable and meritorious.
The health care professional must:
- Be knowledgeable about the medical issues involved in the case.
- Currently or recently (within the past six years), practice or teach in the area of medicine involved in the case.
- Have experience and competence in the subject matter of the lawsuit.
If your lawyer cannot obtain an affidavit of merit due to the filing deadline, they can file the lawsuit and add the affidavit of merit within 90 days. Failing to file this affidavit can result in the dismissal of the suit.
Once your lawyer files your medical malpractice lawsuit, the case's discovery phase begins. Discovery is when the attorneys for both sides can obtain information from the other side. Discovery can include requests for documents and deposing witnesses.
The medical malpractice insurer's attorney will likely want to obtain:
- Copies of your medical records before and after the surgical error took place.
- The names and contact information of witnesses and expert witnesses that your attorney plans to use to prove your claim.
- The medical literature and references your lawyer will use when presenting your case.
- Evidence of out-of-pocket expenses, such as bills and invoices.
- Information from your social media accounts and blogs.
Your lawyer will also gather evidence, including medical records such as notes from the attending physician, surgical notes, discharge papers, CT and MRI films, and pathology slides. They may hire expert witnesses who can testify to the standard of care required in similar procedures.
It is worth noting that settlement negotiations do not have to end when your lawyer files a lawsuit. The insurance company can make a settlement offer even after the trial has begun, provided the court has not yet entered a judgment. However, the case will go to trial without a settlement agreement. Your lawyer will present evidence, examine witnesses, and deliver opening and closing arguments during a trial.
What Happens When the Case is Over?
If you settle the case, you will sign documents that release the surgeon and their medical malpractice insurance provider from further claims. The insurer will send the payment to your lawyer.
If your lawyer works on your case on a contingency fee basis, they will deduct money for their services from the settlement as specified in the fee agreement you entered into with them at the start of the claim.
The lawyer will also pay other financial accounts, such as satisfying liens placed by the hospital for treatment or a group insurance plan. Then, they will forward the rest of the funds to you.
If you obtained a judgment in your favor, the insurer might file an appeal. Appeals can add more time that you must wait to receive your compensation. Your lawyer will continue to provide services to prepare you and your case for the appellate process.
After the appellate court has heard your case, they can decide to uphold the lower court's decision, which means you win; reverse the court's decision, which means you lose; or send the case back for a new trial. One of the main reasons that most medical malpractice cases result in a settlement is because the process of trials and appeals is expensive and time-consuming for all concerned.
When you finally receive a court award, your lawyer will deduct their fees and other agreed-upon expenses from your award and forward the remainder to you.
The Type of Compensation You Can Seek Through a Surgical Error Claim
Illinois allows surgical error claimants to obtain compensation for the expenses related to the surgical error, including:
- All medical expenses related to the repair and treatment of the error;
- Lost wages due to the injury preventing the claimant from working;
- Loss of future earning capacity if the injury results in permanent disabilities, or if the claimant no longer has the same earning power as before the surgical error;
- Physical pain and suffering from the error; and,
- Emotional distress.
Many states limit awards for non-economic damages like pain and suffering or emotional distress. However, this is not the case in Illinois. In 2010, Illinois' Supreme Court ruled that capping non-economic damages was unconstitutional. Therefore, claimants in Illinois can seek the total amount of compensation available for their surgical error injury.
How a Chicago Surgical Error Lawyer Can Help You With Your Claim
Medical malpractice claims are particularly complex. In addition to requiring extensive legal and medical knowledge, your lawyer must also understand the tactics that corporate lawyers representing medical malpractice insurance providers use to avoid paying claims.
They might make meager offers under the guise that no additional compensation is available for the claim. Or, they might tell the claimant that non-economic (pain and suffering) damages aren't available. They might even study the claimant's social media pages in search of something showing they are not as injured as they say they are.
A lawyer can manage communication with the insurance provider to prevent your claim from being reduced or eliminated due to these tactics. Additionally, your lawyer will handle the deadlines in your case. Experienced surgical error lawyers have a network of expert witnesses to turn to if needed to prove a claim. They also have a legal team to assist in gathering the documents required to show the medical and financial consequences of the error.
Your lawyer can determine who is liable for your losses. Responsible parties might include the surgeon, who generally acts as an independent contractor with surgical privileges at a medical facility, or the facility itself, which holds medical malpractice insurance for its staff.
Perhaps most importantly, your lawyer knows and understands medical errors and how a surgical error can devastate a person's life. Your lawyer will advocate for your needs, guide you through the process, and provide the support you need to focus on your health. Contact our firm online or at (312) 726-1616 for a free consultation about your surgical error case.