A summary judgment in a medical malpractice lawsuit means one party, usually, the defendant is requesting the judge to review and dismiss the case based on lack of evidence or other applicable reason. Once summary judgment is requested, the burden of proof shifts to the defense, rather than the plaintiff. This can work in your favor.
If you believe that you have seen common signs of medical malpractice with one of your doctors or a medical facility, a call to a medical malpractice lawyer to schedule a consultation may be in order. Your attorney is going to ask if you’ve noticed any of the common signs of malpractice. There are several signs that you may be a victim of medical malpractice.
Common Signs of Medical Malpractice
One of the common signs of medical malpractice is a treatment that isn’t working as it should. If medial treatment isn’t working as predicted, it could be a sign that you were misdiagnosed. This would mean that your actual condition has been going untreated, and potentially worsening, while you were pursuing treatment for the wrong condition. This can also be indicated if you were diagnosed with a serious condition using only basic lab tests. Any errors in treatment or surgery that stem from disregarding or ignoring standards of care could also be considered medical malpractice.
If a doctor consistently pushes your concerns to the side, or doesn’t take the time to ensure that you are fully informed of treatment options or other information about your condition, you should seek a second opinion. You should also seek a second opinion if the treatment is worse than the condition, or if you are going to be on medications for the rest of your life. If the second opinion disagrees with your original doctor, seek a third opinion. If the third opinion agrees with the second, then you may have been misdiagnosed by your doctor and could have a malpractice case, depending on your situation.
What Is a Summary Judgment in a Medical Malpractice Suit?
A summary judgment in a medical malpractice lawsuit process is relatively straightforward. There are a limited number of reasons that a summary judgment may be requested. For instance, a lack of evidence supporting the lawsuit is one reason a summary judgment may be requested. A summary judgment may also be filed if the facts of the case are undisputable and therefore can’t be argued in front of a jury. Finally, a summary judgment can be requested if the statute of limitations for medical malpractice in Illinois has been exceeded, therefore rendering the lawsuit groundless.
Once you’ve hired your medical malpractice lawyer and filed a lawsuit, he or she will likely have already performed a thorough investigation and determined whether you have a legitimate case, there is evidence to prove your claims, you are still within the statute of limitations, or mitigating factors exist, such as your physician hiding evidence of malpractice. The defense may still choose to request summary judgement at this point, because it likely won’t hurt them to try. However, your attorney will have planned and prepared for that possibility.
Who Can Move to Summary Judgment?
Either party can move to summary judgement, though it is primarily a tool used by the defense. Often, the defense will request a move for summary judgement regardless of the validity of their claim. They will do it as a part of their strategic approach to the process, because it can’t hurt them to try, and it can cause you to expend more time, energy, and potentially money on proving your case. This increases the burden you are carrying in the hopes that you will either drop the suit or potentially accept a lesser negotiated settlement in the future.
The burden of proof, which was initially on you as the plaintiff, will shift to the defense for the duration of the summary judgement process if they choose to pursue it. A medical malpractice lawyer will be able to walk you through this process thoroughly and give you sound advice regarding your lawsuit. Your lawyer will be your best advocate when navigating the entire legal process.
How the Summary Judgement Process Works
The party who wishes to move to summary judgment must first request a motion to summary judgment. Once this motion has been filed, a hearing date will be scheduled and both parties must be notified. The hearing date should allow sufficient time for each side to prepare.
At summary judgment, the moving party will need to file and present legal grounds for the motion. He or she will attempt to show that there are no facts in the case worthy of a trial, or even if there were, that there is no evidence to support a trial. If the statute of limitations for medical malpractice has been exceeded, they will bring this up as well. The responding party will be allowed, then, to argue that there is indeed evidence of malpractice, that more than one interpretation exists to fit the facts in question, or that a judgment would be premature at this point.
Any evidence that would be admissible during a trial will also be admissible during summary judgment. This could include, photos, signed witness statements, police reports, or medical records. Your attorney will likely already have evidence prepared for this hearing. Evidence may include some expert witness statements to back up your assertion that your medical malpractice lawsuit is, indeed, appropriate.
Once the cases for both sides have been made, the judge will review them and make a decision. If the judge finds for the defendant, the motion is granted and the case against him or her is dropped. If the judge finds for the plaintiff, and no negotiated settlement has been reached, then a trial date will be scheduled.
Chicago personal injury and workers’ compensation attorney Howard Ankin has a passion for justice and a relentless commitment to defending injured victims throughout the Chicagoland area. With decades of experience achieving justice on behalf of the people of Chicago, Howard has earned a reputation as a proven leader in and out of the courtroom. Respected by peers and clients alike, Howard’s multifaceted approach to the law and empathetic nature have secured him a spot as an influential figure in the Illinois legal system.