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There is a big misconception as to how lawsuits in Illinois work. This is especially true with Illinois medical malpractice lawsuits. These are complex cases that take a special firm in order to win. While every case is different, we thought it would be helpful to give a general overview of what happens in most Illinois medical malpractice cases.
Step One, The Negligence
Illinois medical malpractice lawsuits are for claims of negligence against a doctor, nurse, hospital or other medical provider. So to have a case, you need to have been a victim of negligence in some way. And for most cases, you need a significant physical harm to make it worth reaching out to an attorney.
Put another way, if your doctor violated HIPAA or made you wait for hours, that is bad, but not a lawsuit. On the other hand, if you had back surgery and ended up with nerve damage or they failed to diagnose cancer in a timely fashion, that might be a case.
If you or a loved one has an injury from medical care or lack of, it is worth reaching out to an attorney.
Step Two, Talking To A Lawyer
While there are a lot of law firms who state that they handle medical malpractice claims, the reality is that there are around ten or so that are truly elite at it. If you have a catastrophic injury such as a birth injury to a child, you need to be with a firm like that.
No matter who you reach out to, the initial process will be something like:
- You explain what happened
- The lawyer asks questions about the process
- If they see obvious defenses to your claim, they will tell you they can not help
- If they think your case is worth investigating, they will likely have a more detailed discussion with you and/or sign your case up to begin an investigation
- You will sign a contract with them that states they are taking your case on a contingency basis which means they only get paid if they make a recovery for you.
Step Three, The Investigation
If you have made it to this point, your case is farther along than most. These are hard cases to win and most get rejected before this point. In the investigation process, your law firm will gather your medical records (sometimes they ask you to do that) and review them internally.
Many of the firms that we recommend have nurses in house that conduct a review to identify negligence or possible defenses. For example, if the records show a patient refused medical care that was recommended, that could end a case. On the other hand, this review may show major errors.
Based on the internal review, the next step is to send out your records to an outside, independent medical expert. These are doctors or nurses in the same field as the person responsible for the harm. So if you were going to sue over a botched back surgery, your lawyer would send your records to an orthopedic doctor to get their opinion as to what went wrong.
To win these lawsuits, you have to show that what happened is not just a bad result, but also negligence. Often bad results happen from things that are known risks. For example, if you have a colonoscopy and your colon gets nicked, that is a risk of that procedure. You would likely only be able to sue if your doctor did not catch the error in a reasonable period of time.
Knowing the best experts to consult with is one way elite Illinois medical malpractice firms separate themselves from others. It can truly be the difference between winning and losing a case. In order to bring a lawsuit, you need an affidavit from an outside expert as to what went wrong and that it violated the standard of care.
***KEY POINT TO KNOW
This whole investigation process often takes 6-12 months or more as there can be tens of thousands of medical records to go through and often you are going back and forth with the expert as they seek more information. In most cases there is a two year time limit to sue from when the negligence occurred (some exceptions can make it longer). The point is that you should not wait until the last minute to reach out to a lawyer.
Step 4, The Lawsuit
If your lawyer gets an affidavit from a credible doctor, they will file a lawsuit which details what happened and what the lawsuit is about. After that happens, this is the typical process:
- All defendants must be served
- There will be a preliminary court date, usually a few months from when the lawsuit is filed
- Each party will have the chance to submit written questions called interrogatories that you and they will have to answer
- Depositions will take place of every relevant person involved in the lawsuit. This includes plaintiff(s), defendants, experts and witnesses.
- During this time your attorney may consult with experts about financial losses, likely needed medical care, a life care plan or other issues. In many cases it is common to hire a videographer to film a “day in the life video” or in cases of wrongful death, a “grief impact” video that discusses the person who passed and how their loss is affecting your life.
While every case is different, the goal in Illinois is to get the case to trial within 28 months of when it was originally filed. In some cases that is not possible because there are too many defendants. One case we are working on has nine defendants with multiple law firms involved. As you can imagine, scheduling can be difficult. In cases of birth injuries, sometimes it makes sense to see how the child develops before a trial takes place.
Step 5, Settlement Attempts and/or Trial
While it is possible to settle a case before a couple of years have passed, that is not common until most or all of the depositions have happened. Insurance companies do not give money away and they know that if only one of 12 jurors believes they are not liable, they will not have to pay anything.
But the farther a case goes on, the more pressure the insurance company and defendants face as jury verdicts in Illinois can be quite large. So it is very common for a mediation to take place. In that process, your lawyer and the other lawyer (along with you present typically) meet with an independent mediator who often is a former Judge. Each party will discuss the case and the mediator will see if they can help you find common ground and a resolution.
Not every mediation is done in good faith and it is not unusual for there to be more than one in a case. As the trial date gets closer, most insurance companies make their best offer.
If the case does not settle, it will go to trial. That process often takes two to four weeks depending on the complexity of the case. All of the relevant parties, witnesses and experts will testify in court with the plaintiffs going first.
The case could still settle during this time, but if it does not, eventually closing arguments will happen and the jury will deliberate and make a decision.
Step 6, Other Factors
If the case settles and there was a death or a minor involved or an incapacitated adult, probate will have to happen. That is a process of determining who is entitled to recover as well as protecting the assets of a minor.
There are also medical liens to take care of if a settlement happens. If your case settled for $1 million, but there are $800,000 in medical bills, if your attorney does not negotiate those bills to a lower amount, you will end up with nothing. This process can take a year or more. That can be frustrating, but it is an important part of the process and must be done correctly. Know that your lawyer will not get paid until you do, so they have a motivation to make that happen.
If the case goes to trial, either party can appeal within 30 days of the verdict. Winning an appeal on a malpractice lawsuit in Illinois is very hard, but not impossible. That process can take another couple of years. In rare cases a new trial is ordered and you go back to that step.
That is how it goes in most cases. It is a lot to take in. The main points are:
- Illinois medical malpractice lawsuits involve injuries due to negligence.
- Do not wait too long to reach out to a lawyer as it takes a long time to properly investigate a case. If you wait too long, you could lose your right to sue.
- Experts are needed to state malpractice occurred. Your lawyer will find them.
- Cases take more than two years from the time a lawsuit is filed. Settlement negotiations typically take place toward the end of a case. If it does not settle, the case will go to trial.
If you have any questions about this process or want to speak with a lawyer for FREE, please call us any time. We will give you the same guidance we would to a family member or friend.
