When you go to a medical professional for treatment, you trust them to provide an appropriate standard of care. Unfortunately, health care professionals don’t always deserve that trust, and they seriously harm patients.
Medical negligence can aggravate illnesses, cause catastrophic injuries or even lead to premature death. For victims and their loved ones, the consequences of medical negligence will also likely include the financial burden of hospital bills, lost wages, and other economic costs.
Patients that suffer medical malpractice have the right to file a lawsuit and recover compensation for their damages. But is it possible for injured patients to go through this process without the help of a medical malpractice attorney? Technically, the answer is yes.
However, medical malpractice claims are notoriously complex and the burden of proof for negligence is extremely high. This article goes over what it takes to get fair compensation for your medical negligence claim under the Illinois legal system.
Medical malpractice can happen:
- At any stage of getting medical services, including your initial assessment, throughout the treatment or surgery, and even during the recovery from a procedure.
- When being treated at any medical facility, like hospitals, clinics, the emergency room, or a surgical center
- With any medical professional, including doctors, nurses, surgeons, emergency medical professionals, pharmacists, and anesthesiologists
The most important thing to understand about filing a medical malpractice claim is that it’s not enough for a patient to have a negative outcome after medical treatment. To get compensation, victims will need evidence that medical professionals failed to follow the appropriate standards of care and that this deviation harmed them.
The burden of proof for establishing medical negligence is often high, and you must meet specific procedural rules. This combination of complicated medical and legal issues makes winning a medical malpractice claim challenging, especially if you don’t have a lawyer. An experienced attorney has the resources to sift through volumes of medical records, conduct a full investigation, and build a solid case.
The Elements of Proving Medical Negligence Under Illinois Law
All medical malpractice cases will turn on how healthcare professionals treat their patients, and whether the act can be considered negligence. Essentially, negligence victims have to prove that a more competent medical provider would have acted differently in similar circumstances, and could have avoided causing harm.
The elements for proving medical negligence often include:
1. A provider-patient relationship has been established.
Any medical professional that provides you with medical services owes you a duty of care, so your medical malpractice claim must begin by proving that you were a patient. This straightforward requirement prevents frivolous lawsuits. For example, if a doctor gives someone general medical advice while socializing at a dinner party, that person could not sue them for malpractice.
2. The medical provider breached their duty of care.
This is the most essential component of your claim. You need clear, persuasive evidence of how the defendant violated the standards of care.
Some examples of negligent acts would be:
- Unnecessary delays in ordering vital diagnostic tests or failure to take appropriate action based on test results
- Failure to refer the patient to a specialist when necessary
- Allowing surgical wounds to get infected because of improper post-operative care
- Anesthesia errors, like administering too much, too little, using a substance the patient was allergic to, not intubating properly, or failing to monitor the patient’s vital signs.
- Medication errors, such as the wrong drug, an unsafe dose, or not checking for potential interactions with the patient’s other drugs
- Surgical errors, like operating on the wrong body part, puncturing organs, or leaving instruments inside the patient during a surgery
- Performing an unnecessary amputation
- Creating the conditions for hospital-transmitted bacterial infections, like MRSA
- Any negligent act during childbirth that leads to complications for the mother or the baby
3. The health care provider’s negligent action directly caused the patient’s injuries.
Proving that your treatment deviated from the standards of care isn’t enough to meet the threshold for liability in a medical claim. Victims also have to establish a direct causal relationship between the defendant’s breach of duty and the injuries they suffered. In other words, you cannot get compensation for an act of negligence unless there’s evidence that it caused specific harm.
4. The health care provider’s negligence caused the patient’s damages.
Finally, victims also have to establish that they sustained specific damages from the injuries the medical professional’s poor treatment caused. The cost and effort of litigating medical malpractice claims are incredibly high, and it’s only worth pursuing compensation if you have significant damages.
Some of the losses you can claim include economic damages like your medical expenses (both existing and anticipated), lost wages (including a reduced earning capacity for patients with a permanent disability), and the cost of special medical equipment, like a wheelchair.
Courts also recognize non-economic losses like pain and suffering, emotional distress, and reduced quality of life. In the most egregious cases, victims may also recover punitive damages to punish negligent medical providers.
The Expert Witness Requirement For Filing a Medical Malpractice Case In Illinois
Medical malpractice claims are more complex in Illinois because our courts require a lot of detailed evidence to establish the liability of a medical professional. In addition, medical malpractice claims must meet strict procedural rules or the court will automatically dismiss them. Victims that an attorney doesn’t represent will find it harder for a court to hear their case, let alone render a favorable verdict.
The most important procedural rule for medical malpractice cases is the Affidavit of Merit, which shows that the victim (or their attorney) consulted with a qualified medical expert about the details of the case and that this health professional believes the negligence case is valid. Illinois courts require you to file this document as part of the initial medical malpractice complaint. This is a measure to reduce frivolous malpractice lawsuits and establish the liability of the medical provider.
The medical expert you choose for this purpose has to meet these legal requirements:
- Is knowledgeable about the specific medical issues that apply in this case.
- Practices or teaches in the area of medicine that pertains to the victim’s case (or has done so in the last six years)
- Has the competence to review this case and evaluate the viability of any negligence claims
- Has written a report supporting the merits of filing this case
Along with needing a qualified medical professional to meet procedural requirements, this expert witness is also essential for substantiating evidence that the defendant’s actions deviated from the appropriate standards of care. Negligence cases involve complicated medical issues that would be hard for a layperson to follow without some context.
A qualified medical expert can explain how the medical provider should have handled this treatment and why the defendant’s conduct was negligent. Crucially, the expert witness can provide evidence of the direct connection between the act of medical malpractice and any injuries the patient suffered.
A skilled medical malpractice attorney would belong to a network of medical professionals who can serve as consultants for a wide range of malpractice scenarios, which allows them to find the perfect medical expert to support your case.
Can You Handle A Medical Malpractice Lawsuit Without a Lawyer?
No. A medical malpractice lawsuit isn’t a “do-it-yourself” task. While people may represent themselves in small claims court, those cases involve much less money and pertain to more straightforward issues.
A medical malpractice victim without a lawyer helping them navigate the legal system is at a very clear disadvantage when going up against hospitals, doctors, and their insurance companies. In other words, they would be likely to either lose the case or recover much less compensation than they deserve.
Here are some compelling reasons that most victims of medical malpractice will want an attorney by their side:
The stakes are high
Medical malpractice cases tend to be extremely serious, with victims having suffered significant harm and likely dealing with a major financial burden. If the act of negligence has caused a lifelong disability, they will also be facing long-term consequences for their finances and quality of life. Overall, the prospect of losing a medical malpractice case is extremely devastating and that makes using the services of an attorney essential.
Medical malpractice cases are tough to litigate
The court will only rule in your favor if you can prove that the defendant’s likely negligence caused your injuries. The insurance companies of doctors and hospitals have their own team of skilled attorneys who will fight vigorously to deny liability or pay as little as possible. They are likely to use many complicated strategies to refute your claim, and it takes sharp legal skills to contend with that kind of opposition.
As someone who’s not a lawyer, you may not know the strongest evidence to introduce, the kinds of questions to ask witnesses, or the arguments to justify your damages. These are specialized skills that only a trained and experienced attorney would have.
You need lawyers during the settlement process
Most medical malpractice cases won’t go to a court trial. They usually end when the injured patient accepts a settlement offer from the defendant’s insurance company. The settlement process often begins with a lowball offer that doesn’t sufficiently compensate the victim for their damages. This helps insurance companies minimize payouts while persuading victims to sign away their right to sue.
A medical malpractice attorney can make all the difference between walking away from the negotiation table with a fair settlement offer and getting cheated. Your lawyer can make counteroffers, present a persuasive case for negligence, and generally help to maximize the value of your claim.
Hiring a medical malpractice attorney
If you’re struggling with the consequences of a traumatic medical error, an experienced personal injury lawyer can help support you throughout the process of getting compensation. Whether you accept a settlement offer or take your case to a court trial, your attorney can serve your best interests.
They accomplish this by:
- Gathering, organizing, and analyzing any evidence that proves medical negligence and documents the extent of your damages
- Finding the right expert witnesses to strengthen your case
- Handling all communications with the insurance company and negotiating a fair settlement
- If necessary, protecting your legal rights in a court of law
Medical malpractice lawyers work on a contingency basis, which means a percentage of the amount the plaintiff gets will pay their legal fees, and they don’t get paid for claims that don’t recover anything at all. Ultimately, an experienced medical malpractice attorney in Chicago is an invaluable asset when you pursue a medical negligence claim.