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Summary of Illinois Medical Malpractice Law
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Medical malpractice is a broad term generally used to describe any treatment, lack of treatment, or other departure from accepted standards of medical care, health care, or safety on the part of a health care provider that causes harm to a patient. Medical malpractice can include misdiagnosis, improper treatment, failure to treat, delay in treatment, failure to perform appropriate follow-up, prescription errors, etc.
Medical malpractice occurs when a healthcare provider – doctor, hospital, HMO, nurse, other individual or entity licensed to provide medical care or treatment – does something that competent doctors would not have done, or fails to do what a competent doctor would have done, resulting in personal injury or wrongful death.
An action for personal injury or death against a physician, dentist, nurse, or hospital must be filed within 2 years from the date the victim knew or reasonably should have known of the injury. In no event may a victim bring an action more than 4 years after the date on which the alleged act or omission occurred. Even if you didn’t know about the negligence or the harm that was caused, once four years passes it’s usually too late. Note that if you wanted to sue a Government run facility like the University of Illinois or Cook County Hospital, time limits to sue are only one year from when it happened.
If the victim was under the age of 18 when the cause of action accrued, the limitation period is 8 years from the date of the alleged act or omission, except that in no event may such an action be filed after the minor victim’s 22nd birthday.
If the victim is mentally incompetent, the period of limitations does not begin to run until the disability is removed. That is a very hard standard to prove and you should never delay in bringing a case because of this possibility. You should, however, know that if someone has been in a coma or otherwise is severely mentally handicapped, a lawsuit may not be too late for them.
Wrongful death actions are governed by a different 2-year statute of limitations that begins to run on the date of death. However, such an action can only be brought if, on the date of death, the decedent could still have commenced a malpractice action for the injury that caused the death.
Illinois has adopted a form of modified comparative negligence. Under this doctrine, a victim’s action is barred if his contributory fault is more than 50 percent of the proximate cause of the injury or damage for which recovery is sought.
If the victim is 50 percent or less at fault, the victim’s recovery is diminished in proportion to his percentage of fault. For example, if you are able to recover $100,000 in a medical malpractice action and are 20 percent at fault for the injury, your damages will be reduced by $20,000.
Illinois has no cap on compensatory damages for medical malpractice. Caps on non-economic damages were recently held to be unconstitutional. Punitive damages are not allowed for medical malpractice actions. This is true no matter how bad the behavior of the defendant was.
Damages are monetary compensation that is awarded by a court in a civil action to an individual who has been injured through the wrongful conduct of another party. Damages attempt to measure in financial terms the extent of harm a victim has suffered because of someone’s actions.
Compensatory damages attempt to put an injured person back in the position he or she was in before being injured. There are two broad categories of compensatory damages: economic and non-economic. Economic damages, such as lost wages and medical bills, have specific monetary values, whereas non-economic damages, such as pain and suffering and loss of consortium, do not.
In any medical malpractice case, the victim’s attorney must attach to the complaint (or in some circumstances file within 90 days) an affidavit stating that (a) he has consulted with an expert who practiced or taught within the last 6 years in the same area of medicine that is at issue; (b) the expert is qualified by experience or demonstrated competence in the subject of the case; and (c) the expert has determined in a written report, after a review of the medical record and other relevant material, that there is a reasonable and meritorious cause for the filing of such action. A copy of the report must be attached, but the identity of the expert may be withheld. If you don’t have this you don’t have a case, even if the mistakes made are obvious.
Medical malpractice attorneys should work on a contingency basis, meaning you do not have to pay any money up front. If your case loses, the attorney is paid nothing. If your case wins your attorney receives a certain percentage of what you recover. Illinois law caps attorney fees to one third of what is recovered.
Medical malpractice law is complex and therefore it is important to engage an experienced malpractice lawyer who understands the complex issues that apply. Please contact us if you have any questions or would like a referral to an experienced Illinois medical malpractice attorney. All calls are free and confidential.