Doctors, nurses, and other healthcare professionals in Chicago are trusted to treat us when we are injured, ill, or in need of emergency medical care. You trust your doctor to act professionally and provide you with the accepted industry standard of care. But when the medical professional with whom you’ve entrusted your health makes an error or fails to provide the accepted standard of care, it may be grounds for a medical malpractice lawsuit.
Doctor errors happen all the time, far more frequently than most of us realize. According to the Journal of Patient Safety, approximately 440,000 patients die each year from preventable medical errors. It is also estimated that one out of every three patients admitted to the hospital will experience a medical error during their stay. Not all of these errors qualify as malpractice, but the statistics are a real reason for concern. A medical error could have long-term or catastrophic results.
Some of the most common areas of medical malpractice include:
During the period of pregnancy through birth, it is a doctor’s medical obligation to monitor the mother’s condition, as well as her use of medications, drugs and alcohol to ensure that the new born baby is as healthy as possible. It is also the doctor’s responsibility to carefully examine the mother’s medical and genetic history for this same reason. Although some birth defects are unavoidable and the causes unknown, other conditions, including congenital heart defects, can be avoided, mitigated, or at least determined early on.
Injuries that occur during pregnancy or during childbirth may be the result of any number of causes including genetic changes, improper medication or drug use, or injury to the pregnant mother and baby. It is the duty of each obstetrician, gynecologist, and doctor involved in the prenatal care of the mother and delivery of the child to guard against harm. When such medical personnel fail to meet the standard of care that is expected of them and a birth injury results, those responsible need to be held accountable.
Examples of childbirth injuries include:
Nursing homes and inpatient facilities are intended to be a safe place for loved ones to rehabilitate or to grow old gracefully. It is quite reasonable to expect that the medical staff at such facilities will provide excellent care and use their best judgment at all times in the care of your loved one. But when doctors, nurses, or other staff fail to live up to their medical obligations and injury or death results, they must be held responsible for nursing home abuse. Areas of concern include understaffing, medication dosage malpractice, and medication mistakes.
When a patient has been referred for a surgical procedure, the stakes are generally high. Surgery is often a last resort when other types of non-invasive treatment have failed. Patients expect that the surgeon and surgical staff will give 100% effort and use their specialized medical skills to help return them to health as quickly as possible. Unfortunately, this is not always the case and many patients suffer harm due to surgical negligence. When a doctor or surgeon fails to meet the standard of care, they must be held responsible.
It is the medical duty of a doctor to properly examine a patient and use available diagnostic tests to properly diagnose the patient’s illness, disease or complaint. When a doctor does not meet the standard of care and either fails to diagnose, improperly diagnoses, or delays the diagnosis of an illness, then medical malpractice has occurred. In such a circumstance, a lawsuit for misdiagnosis or delayed diagnosis malpractice would be the appropriate remedy.
When a doctor or nurse practitioner prescribes medication, it is of the utmost importance that the prescription is exactly correct for the medical purpose for which it is intended. But even when the prescription is right, it may be filled improperly by a pharmacist, labeled incorrectly, or administered by medical staff incorrectly. Medication errors such as these may lead to serious injury and even death.
During a surgical procedure, an anesthesiologist must carefully and precisely regulate which anesthesia and what quantity of anesthesia is to be administered to the patient. If too little is given, the patient may experience extreme pain or awaken during the surgery. But if they are given too much or incorrect anesthesia, death, brain damage, or paralysis may be the result. Both cases are forms of anesthesia malpractice. Medical professionals must be held accountable for errors involving anesthetics.
When a doctor believes that an imaging test would be helpful in making a clear diagnosis, then an MRI, CAT Scan, X-Ray, or other diagnostic test is ordered. Radiologists are trained medical personnel who then must interpret and read the results of the test. If the radiologist fails to properly interpret this image, the entire course of treatment may be negatively altered, resulting in unnecessary injury or death. Such circumstances may call for a radiological malpractice lawsuit.
Dangerous or defective medical devices may result in harm to a patient. When this happens, a medical malpractice or products liability lawsuit can hold those at fault accountable. Such injuries may occur in the context of surgical implants, hospital supplies, prosthetic devices, or equipment used during surgery.
Before a patient can recover monetary damages for medical malpractice, they must establish that a medical professional failed to provide the accepted standard of care and acted negligently. Additionally, if they wish to file and ultimately win a claim, certain requirements must be met and certain matters must be considered. Among the most important of these are:
If negligent medical care is established, a medical malpractice claim or lawsuit can be filed to pursue compensation for current and future healthcare costs, lost past income, future earning potential, pain, suffering, permanent disabilities, and the loss of enjoyment of life.
Assuming that your attorney has been able to demonstrate that the healthcare provider owed the patient a duty to provide proper medical care, that the provider failed to meet the proper standard of care and that there exists a causal link between the sub-standard treatment and an injury or death that followed, then the last requirement that still remains would be for the attorney to demonstrate what are called damages.
“Damages” relates to the value in money of the harm which has been done by the doctor, surgeon, nurse, nursing home, hospital or other healthcare provider. The damages might include:
Assuming that the lawyer has proven most of the requirements of a medical malpractice case, then all that is likely left is for the judge or jury to calculate the money damages. Although certain things like medical bills are easy to calculate, other things are exceedingly difficult to calculate such as pain and suffering. After all, how can one every put a money value on the wrongful death of a loved one? –Or the loss of a leg? Or cancer that has grown out of control? –And what about injuries that take years for mental trauma or PTSD to show up?
There is no formula for calculating these damages, so monetary awards for personal injury in medical malpractice cases can vary quite widely, as each person’s injury or loss of a loved one’s life is different and unique. Although you may have heard about a formula that involves multiplying the medical expenses by “3”, this is not how the calculation of damages really work. Some of the things that may affect the decision of a jury when it comes to putting a price on pain and suffering include:
We all know that just because a person is a doctor does not automatically mean that he or she has the highest levels of skill. We all know that some house painters are better than others, as are some chefs, authors, butchers, plumbers and electricians. Certain other jobs, such as lawyers, accountants and doctors are licensed by the State (such as Illinois), required to have a certain level of expertise and required to meet certain standards to continue as a licensed professional.
We also all know that everyone makes mistakes – and when you’re talking about a house painter, it’s really not that big a deal. If the paint is applied poorly, all it takes it another coat of paint to fix things right up. If a chef makes a mistake, he just throws out the meal and begins again. But the human body is not a door or a wall, and certain things that happen can never be undone. It has often been said that “doctors must bury their mistakes” because some errors result in serious long-term injuries or even wrongful death. It is for this reason that courts of law hold doctors, nurses and other medical professionals to a certain standard. This is called the “medical standard of care”.
The standard of care is the degree of skill and care of an average medical provider (a nurse, a midwife or a doctor, etc.) who practices in a specific specialty, while using available medical knowledge. The court will judge a medical provider’s services by this benchmark to see if he or she has done what other medical professionals, who have been similarly trained and practice in a similar type of community, would have done. (The standard compares the type of community because a doctor who practices in downtown Chicago, for instance, most likely has a different type of practice than a doctor who practices in a more rural community where there are few doctors, fewer advanced hospitals and so on).
The standard of care compares apples to apples. It doesn’t judge whether a general practitioner would handle a situation the same way a skilled heart surgeon would; rather, it only compares one general practitioner other general practitioners would likely do. As a result, the standard of care depends on the practices of an average medical provider and what similar practitioners would typically do under similar circumstances.
In this way, medical malpractice is different from most other areas of negligence law. Say that a jar of peaches breaks in the aisle of a grocery store, a person slips, and he or she becomes injured and sues the store. The judge or jury would need to decide if the store owners were negligent for not promptly noticing and cleaning the mess. Rather than determining negligence using the “standard of care”, they would instead decide if the owners did what a “reasonable person” would have done. So if a “reasonable person” would have noticed the spill before someone slipped, they may be held liable for monetary damages. If a “reasonable person” wouldn’t have noticed it, then they would be found not responsible or negligent.
No judge or jury is able to really “get inside the head” of an injured person and really measure pain or suffering. But it is the job of a great attorney to try and do just that. For over 25 years, our Chicago medical malpractice lawyers have excelled at convincing both juries and insurance adjusters that our clients (and their families) endured significant pain/suffering and have been entitled to the maximum compensation available under the law. We have found many creative ways to communicate pain and suffering including the use of “day in the life” videos, charts, PowerPoint presentations as well as good old fashioned hard work and intense negotiations. Millions of dollars have already been recovered for our deserving clients, with many settlements in the multi-million dollar category.
If you were ever in a minor car accident, you probably called up the other driver’s insurance company, gave them your bills, and received a check for your car damages and medical expenses, plus, if you were injured, a little compensation for pain and suffering. Medical malpractice cases could not possibly be any more different. The chances of you successfully reaching the doctor’s insurance company on your own, let alone successfully negotiating a fair settlement, are pretty close to zero—and it may even harm your case to attempt direct communication with the medical malpractice insurance company. Insurers of medical malpractice are far more aggressive than regular insurance companies. When you are dealing with a serious matter such as medical negligence, it is always best to discuss your situation with an experienced professional before proceeding.
Most insurance policies require the insured doctor to tell them immediately if they have been contacted by a lawyer. The insurance company then takes over negotiations and we speak to a specialized insurance adjuster about the claim. Though the adjuster will sometimes take part in lengthy negotiations with a malpractice attorney, they often refuse to discuss the case until a formal lawsuit has been filed with the court. An insurer might wait until the lawsuit is filed because they know there are many legal hoops to jump through when filing such a suit, and they want to be sure that the lawyer can satisfy these requirements before wasting any time on negotiations.
Unless you are running out of time to file a lawsuit and a claim must be filed immediately to preserve your rights, our attorneys will generally attempt to negotiate with the insurance company before filing a lawsuit. The vast majority of doctors, nurses and long-term patient facilities are covered by insurance. In cases when they are self-insured, we may try to negotiate directly with the negligent party. There is usually no downside to trying to negotiate first, because if negotiations fall flat and no agreement can be reached, we can always file the lawsuit later. But this is a strategic decision unique to every case, and a decision that we discuss with our clients.
Even if a lawsuit needs to be filed, negotiations can, and commonly do, continue throughout the entire legal process, from pre-suit to arbitration to the discovery phase, even during or after a trial. It is not uncommon for a settlement to be reached minutes before a trial begins or even minutes before the jury returns its verdict. A knowledgeable attorney will know when to act, when to continue negotiations, when to settle and when to leave the decision to the judge or jury.
Most of the time, you must file a lawsuit to truly get the attention of an insurance company and to begin any meaningful negotiations. An insurer will never settle a negligence case except in the face of a credible legal threat. The mere request to do “what is right” is almost never sufficient to get an insurer to offer a cash settlement. This is not a moral decision on the part of the insurer; it is a money decision. If a settlement can be reached, it is because the insurer fears that your lawyer has filed a meritorious lawsuit, that a trial will be held, and that a jury of your peers will award you millions of dollars more than they have estimated. That is what drives the insurer towards settlement.
In Illinois, a particularly important hoop that you must jump through when filing a complaint is obtaining an affidavit from a healthcare professional. Although there are some exceptions, this law requires that a doctor or other qualified medical professional examine the facts of the case and the available medical records, and then swear that they believe the medical provider failed to meet the “standard of care” and, as a result, caused the injury or death.
As part of a typical medical malpractice claim, an attorney will seek out such an expert and pay them for their time (this usually costs thousands of dollars) to examine the medical records and render an opinion. If no such expert is willing to attest that medical malpractice was committed, the attorney will be unable to file a claim with the court and the case will die. So it is of great importance that the attorney knows of good medical experts who will examine their case.
If you are planning to file a negligence claim, it is of the utmost importance that you file it in a timely manner. There are certain time limits, known as statutes of limitation, which apply and vary from state to state. Although in Illinois the normal statute of limitation is 2 years from the date that the harm occurred, there are different time limits depending upon many factors, such as the age of the person who was harmed. In some situatins, the limitations period may be extended if the patient did not learn of the harm right away. But the most important consideration is that you should immediately consult with an attorney to determine the deadline for filing. If your lawsuit is not filed by that date, whatever it is, then you will forever give up your right to sue the medical provider. If your lawyer is even one minute late filing the paperwork, it will be too late and no excuses will be accepted.