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​Illinois State Medical Malpractice Laws

There are dozens of medical facilities that provide health care services to those who are injured or ill in Illinois. Each of these facilities and the doctors, nurses, and other medical staff who work in them are required to provide their patients with a standard of care that involves taking reasonable actions accepted in the industry to treat the medical conditions presented by the patient.

If an error is made in the provision of this treatment and it results in injury, the patient can seek compensation for the expenses and psychological impacts of their injury through Illinois’ medical malpractice claims process.

Medical malpractice claims are a type of personal injury claim. However, due to legal reform measures taken to prevent the courts from being overburdened by frivolous medical malpractice claims, this process has additional requirements not found in other state laws about personal injury. Having an experienced Chicago medical malpractice attorney to assist you with the process is crucial to the successful outcome of your claim.

The Medical Malpractice Claims Process

According to a survey conducted by the National Patient Safety Foundation, as many as one in five people in the U.S. have suffered an error during the provision of medical treatment, and medical errors may cause of a quarter of a million deaths and hundreds of thousands of injuries each year.

For those injured in Illinois due to a medical error, the medical malpractice claims process provides the opportunity to seek compensation for the expenses and the impacts the patient endured due to the injury caused by the error.

The medical malpractice claims process generally begins when the injured patient’s attorney files a demand against the at-fault provider’s medical malpractice insurance policy.

Upon receiving the claim, the insurance provider assigns a claims adjuster to the claim. The claims adjuster is employed or contracted by the insurance provider to evaluate claims and determine how much compensation is owed to the claimant. It is important to remember that their role is to protect the insurance company’s bottom line by reducing unnecessary payouts, which directly contradicts the claim’s purpose.

If the insurance company fails to compensate the claim, it can be filed as a medical malpractice lawsuit. This is a legal claim filed in civil court that requests a judge or jury to hear the claim and make decisions regarding liability and compensation.

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What Types of Cases Can Result in a Medical Malpractice Claim in Illinois?

​Illinois State Medical Malpractice Laws

Not every bad outcome of a medical procedure results from an error, and not every error constitutes a medical malpractice claim. For a claimant to seek compensation through the Illinois medical malpractice claims process, they must be able to show that an error occurred and that the error was committed by a health care provider with whom the claimant had a provider-patient relationship, and the error resulted in injury.

Common types of medical errors that can result in an Illinois medical malpractice claim include:

  • Birth injuries that involve injury to the mother or infant during or around the time of birth, such as failure to perform a timely cesarean section when lab results show the procedure is necessary to protect the health of the mother or child or failing to properly monitor the newborn for complications in the hours after birth.
  • Diagnosis errors such as misdiagnosis, failure to diagnose, and delayed diagnosis which can deprive the claimant of needed treatment for their medical condition
  • Prescription errors, including prescribing the wrong dosage of medication or providing a patient with the wrong type of medication to treat their injury or illness
  • Surgical errors, including wrong-site surgery, wrong patient surgery, or accidentally leaving a surgical tool, sponge, or towel in the body cavity after the procedure has occurred
  • Premature discharge from a medical facility following a procedure
  • Failure to provide adequate follow-up for a procedure to monitor the patient’s medical progress and address complications they’re experiencing due to a course of treatment
  • Failing to provide adequate information about the risks associated with treatment if disclosing these risks would have likely resulted in the patient choosing a different treatment option

The Statute of Limitations for Illinois Medical Malpractice Claims

In Illinois, the statute of limitations on most personal injury claims is two years from the date the injury occurred. This deadline is placed on the filing of the claim as a lawsuit in court.

Because those who are injured during a medical procedure are not always aware right away that the injury occurred or was related to the provision of medical care have two years to file the claim from the date on which they became aware that they suffered an injury as a result of the error. However, adult medical malpractice claimants only have a maximum of four years from the date of the injury to determine that an injury occurred and file a lawsuit.

The Statute of Limitations for Claims Involving Injuries to Children

When a child is injured as a result of medical malpractice in Illinois, there are two options for obtaining compensation through the state’s medical malpractice claims process:

  • They can file a medical malpractice claim on their own once they reach the 18. Claimants injured as children due to a health care provider’s area generally have to file the claim two years after their 18th birthday.
  • A parent or guardian can file the claim on the child’s behalf. Medical malpractice claims made by the parent of an injured child must be filed within eight years of the child’s injury, but in no case should the claim be filed after the child’s 22nd birthday.

The Importance of Adhering to the Statute of Limitations in a Medical Malpractice Claim

One of the most important factors to having a successful outcome for a medical malpractice claim is ensuring that the claim is filed within the statute of limitations. Allowing this deadline to expire will usually result in the loss of the right to use the court process when seeking compensation for the expenses and impacts of your injury.

The primary reason an insurance provider offers to settle a claim is to avoid the expense and uncertainty of litigation. Therefore, not having the ability to file a lawsuit will usually also result in the inability to get the claim compensated through a settlement.

The Affidavit of Merit Requirement

In Illinois, when an individual files a medical malpractice lawsuit, they must include an affidavit of merit with the legal complaint. The affidavit of merit is an oath by the claimant’s attorney that they have consulted with a medical professional about the claim, which has determined a “reasonable and meritorious cause” for filing the lawsuit.

However, the law also includes requirements as to the type of professional who is permitted to evaluate the merit of the case, including:

  • The medical professional has practiced or taught the same area of medicine as is relevant to the case. The practical or teaching experience must have occurred within the last six years.
  • The professional is qualified by experience or demonstrated competence in this area of medicine. The affidavit must identify this qualified health professional’s experience in this area of medicine.
  • While the information about the medical professional’s identity and experience must be included with the lawsuit, this information can be deleted from the public record to protect the professional’s identity if needed.

In cases where the statute of limitations is set to expire and no medical professional has been found to consult about the case, the claimant’s attorney is permitted to file the claim without the affidavit and then obtain it and add it to the claim within 90 days. Failure to provide this affidavit of merit will generally result in a dismissal of the lawsuit.

Do Illinois Medical Malpractice Claims Cap Damages?

In years past, Illinois—like many other states—capped the non-economic damages in medical malpractice claims.

Non-economic damages refer to compensation for the psychological impacts of an injury, such as pain and suffering, emotional distress, and loss of enjoyment of life. These caps were in place to reduce the court burden, and the high payout on medical malpractice claims was often used to justify increasing health care premiums paid by the state’s insured.

However, in three separate cases—most recently in 2010—the Illinois Supreme Court ruled that damage caps in medical malpractice claims violated the claimant’s constitutional right to obtain compensation for harm caused by the careless and reckless actions of others.

Thanks to the Supreme Court’s repeal of this law, claimants now can seek as much compensation for non-economic impacts as the details of their claim warrant and is available through the doctor’s or facility’s medical malpractice policy that was liable for the error.

How Much Medical Malpractice Coverage are Healthcare Providers Required to Have?

Illinois does not require health care providers to purchase medical malpractice insurance. However, many of them do as they do not want to be personally liable for compensating patients who have become injured due to a medical error. Most providers opt for a policy that provides at least $1 million in coverage per accident or at least $3 million in aggregate coverage for a year. Providers in high-risk specialties such as emergency medicine, obstetrics/gynecology, or general surgery often purchase policies with higher coverage amounts.

Is an Attorney Required for the Medical Malpractice Claims Process in Illinois?

Adam J Zayed, Founder & Trial Attorney
Adam J. Zayed, Chicago Medical Malpractice Attorney

Individuals who suffer an injury due to an error made by a medical provider are not required by any state law to hire an attorney to assist them with their claims. However, given the complexity of this type of legal claim and the large amounts of medical jargon involved in the evidence needed to prove the claim, the services of an experienced medical malpractice attorney are crucial to the ability to have a successful resolution to this action.

Your attorney can:

  • A determine liability and identify liable insurance policies. Liability in a medical malpractice claim is often trickier than other personal injury claims due to the medical malpractice insurance policies that provide claims coverage. Doctors rarely work as hospital employees but as independent contractors with privileges to practice at a facility. Because of this status, they must furnish a policy that covers their errors and those committed by medical staff under their supervision. The hospital generally employs medical staff and work under its malpractice policy.
  • Evaluate your claim based the out-of-pocket expenses incurred, insurance availability, and the injury’s severity.
  • Manage communication with the insurance provider to negotiate a settlement and protect the value of the claim from common tactics used by claims adjusters to reduce or eliminate the insurance company payouts on claims
  • Manage the case timeline so you retain your right to seek compensation if the insurance provider fails to pay the claim.
  • Provide litigation services then collect your settlement or award after your claim resolves

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