Medical malpractice cases can be complicated and lengthy due to the burden of proof necessary to validate medical negligence. Before you can file a lawsuit in civil court, Illinois law requires you to get an affidavit of merit to confirm that your case is valid and prove that the accused medical professional violated the acceptable standard of medical care for patients.
Is medical malpractice responsible for your injury or illness? Call Ankin Law Chicago medical malpractice lawyers for a free consultation at 312-600-0000.
What Is the Impact of the Standard of Care on Medical Malpractice Cases?
The standard of care is a legal term that refers to the degree of care a reasonable person would exercise under the same circumstances. Although the legal standard of care can vary by state, most states follow the national standard which says that the level of medical care, skill, and treatment is recognized as appropriate and acceptable by other similar healthcare providers.
The standard of care is not a medical term, but a legal term used to protect patients from harm caused by medical negligent actions. The standard of care is the benchmark that determines whether professional obligations to patients have been met. Failure to meet the standard of care is considered negligence, which can carry consequences for medical professionals who fall short. Medical malpractice cases are often linked to negligent medical actions, but a successful malpractice lawsuit requires proof of these four elements:
1. Duty of Care – the medical professional or medical institution owed a duty to the patient to meet the acceptable standard of care.
2. Negligence Actions – The medical professional did not meet the acceptable standard of care due to omissions or negligent actions.
3. Harm to the Patient – The patient suffered some type of physical, emotional, or financial harm due to negligent actions.
4. Cause of Harm – The patient’s harm was caused by the medical professional’s failure to meet the acceptable standard of care.
To avoid negligent actions and harm to patients, medical professionals must document a patient’s medical history. Documentation is important to doctors, nurses, and hospital staff workers because it protects patients from harm and prevents medical errors that lead to legal actions with a medical malpractice lawyer. A documented medical history provides medical professionals who treat the patient with a record of medical details that may be forgotten or overlooked between visits. A patient’s medical history provides essential documented evidence for treatments, but it also provides important information for ongoing conversations between the patient and the medical professional for the best possible course of treatment.
What Is the Role of Expert Witnesses in Establishing the Standard of Care?
When filing medical malpractice cases in Illinois, you are required by law to file an affidavit of merit before you file a lawsuit. The Illinois Code of Civil Procedure requires that your affidavit declares one of the following factors:
- A licensed healthcare professional has reviewed the facts of my case and has determined that there is appropriate merit for filing a medical malpractice lawsuit.
- I have not been able to consult with a licensed medical professional to establish merit prior to the expiration of the statute of limitations in my case, but I will file a report within 90 days of filing the lawsuit.
- I have attempted to get the necessary medical records from my doctor, but have not received them. I will submit the medical records within 90 days of receipt.
According to Illinois laws, you must file your affidavit of merit with the court within 90 days of filing your complaint. After it is filed, the plaintiff in the case must be served with the affidavit and respond within 30 days. If there is more than one plaintiff, each one must be served with a separate affidavit of merit. If you fail to attach the affidavit to your complaint, the court may dismiss your lawsuit. Before you file a complaint in Illinois, it’s important to know common types of medical malpractice cases and how to file a medical malpractice claim.
The Role of the Expert Witness
In medical malpractice cases, the burden of proof lies with the person who files the complaint (the plaintiff). The plaintiff must prove that the medical professional (the defendant) breached the duty of care and caused harm to the plaintiff. To validate a claim, the plaintiff must file an affidavit of merit and talk to an expert witness who can testify in court. Medical malpractice lawsuits are usually complicated, so the court relies on expert witnesses to prove the following:
- Establish the Standard of Care – Expert witnesses are typically medical professionals in a similar field of health as the defendant. They can explain the acceptable medical procedures in similar situations and establish if the medical professional deviated from the standard of care.
- Translate Medical Jargon – Expert witnesses can decipher complex medical jargon used in medical terminology. They can simplify a patient’s diagnosis, prognosis, and complications to make the case more understandable for the court.
- Support Causation – Expert witnesses can link the medical professional’s negligent actions to the patient’s harm. This confirms the affidavit of merit and strengthens the patient’s argument for a medical malpractice lawsuit.
- Prove Credibility – A medical malpractice expert witness is highly qualified, so he or she has a proven credibility in court. Expert witnesses have specialized knowledge and experience in certain medical fields and present accurate, objective assessments of a patient’s injuries.
How a Medical Malpractice Lawyer Can Strengthen Your Case
If you suspect that your illness or injury is caused by a medical professional’s negligent actions, an Illinois medical malpractice lawyer can determine if you have a medical malpractice case. Violating the standard of care is not the same as simply making a mistake. The most experienced medical professionals can make occasional mistakes, but it doesn’t mean that they violate the standard of care. Common types of medical malpractice cases involve the following:
- Failing to diagnose a medical condition
- Failing to obtain informed consent before treatment
- Ignoring or discounting a patient’s symptoms
- Giving an improper dose of anesthesia before surgery
- Rushing through medical procedures and treatments
- Using improper medical equipment
Medical statistics in the United States show that there are approximately 15,000 to 20,000 medical malpractice cases every year filed against hospitals, doctors and nurses, surgeons, and other types of medical professionals. Many of these cases result in serious injuries, permanent disabilities, and wrongful death claims.
Illinois medical malpractice cases are complicated and difficult to prove without an experienced medical malpractice lawyer. You need an experienced lawyer who can help you file your claim, obtain the required affidavit of merit within the court’s allotted timeline, and gather the necessary evidence to support your medical malpractice lawsuit in civil court.
Recovering Damages
If you successfully prove the legal elements of your case, you can recover both economic and non-economic damages for medical malpractice.
Economic Damages
These damages compensate you for financial losses for medical bills, lost income, and out-of-pocket expenses. Medical bills include costs for hospitalization, surgical procedures, diagnostic tests, ambulance bills, and rehabilitation therapy. Loss of income includes wages and salaries, overtime pay, and bonuses. Out-of-pocket expenses include medications, medical supplies and equipment, assistance with daily activities, household services and child care, travel expenses to medical appointments, and long-term nursing care.
Non-Economic Damages
These damages compensate you for intangible, difficult-to-value losses caused by your injuries. They include pain and suffering, emotional distress, disfigurement and scarring, loss of enjoyment of life, and loss of consortium with a spouse. In wrongful death claims, the deceased person’s relatives may receive compensation for psychological anguish and grief, loss of care, support, and counsel, and loss of love and companionship. Non-economic damages can be high in wrongful death cases.
Filing a medical malpractice claim doesn’t mean that your case will automatically go to trial. Your medical malpractice lawyer may advise you that it’s in your best interest to settle out of court, with negotiations between each party’s lawyers. In settlement agreements, damages are calculated in two ways:
- The Per Diem Method – Under this method, parties agree to a daily amount for non-economic damages, such as $300. The daily amount of $300 is multiplied by the number of days of suffering, such as 180 days. $300 x 180 days = $54,000 for non-economic damages.
- The Multiplier Method – Under this method, parties agree on a “multiplier,” a number typically between one and five. The multiplier number is then multiplied by the amount of economic damages, such as $20,000. 3 x $20,000 = $60,000 for economic damages.
If you suspect medical malpractice, contact us for a free case review. Our Chicago medical malpractice lawyers can determine if you have a case and represent you in a court trial or settlement.
