Medical Malpractice

Medical malpractice occurs when a patient is harmed by a doctor (or other medical professional) who fails to competently perform his or her medical duties. The rules about medical malpractice – from when you must bring your lawsuit to whether you must notify the doctor ahead of time – vary from state to state. But there are some general principals and broad categories of rules that apply to most medical malpractice cases. Here’s an overview of the law and some of these special rules.

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Basic Requirements for a Claim

To prove that medical malpractice occurred, you must be able to show all of these things:

A doctor-patient relationship existed. You must show that you had a physician-patient relationship with the doctor you are suing – this means you hired the doctor and the doctor agreed to be hired. For example, you can’t sue a doctor you overheard giving advice at a cocktail party. If a doctor began seeing you and treating you, it is easy to prove a physician-patient relationship existed. Questions or whether or not the relationship exists most frequently arise where a consulting physician did not treat you directly.

The doctor was negligent. Just because you are unhappy with your treatment or results does not mean the doctor is liable for medical malpractice. The doctor must have been negligent – not reasonably skillful and careful – in our diagnosis or treatment. To sue for malpractice, you must be able to show that the doctor caused you harm in a way that a competent doctor, under the same circumstances, would not have. The doctor’s care is not required to be the best possible, but simply “reasonably skillful and careful.” Whether the doctor was reasonably skillful and careful is often at the heart of a medical malpractice claim. Almost all states require that the patient present a medical expert to discuss what standards of treatment are considered to be reasonably skillful and careful in a particular case.

The doctor’s negligence caused the injury. Because many malpractice cases involve patients that were already sick or injured, there is often a question or whether what the doctor did, negligent or not, actually caused the harm. For example, if a patient dies after treatment for lung cancer, and the doctor did do something negligent, it could be hard to provide that the doctor’s negligence caused the death rather than the cancer. The patient must show that it is “more likely than not” that the doctor’s incompetence directly caused the injury. Usually, the patient must have a medical expert testify that the doctor’s negligence caused the injury.

The injury led to specific damages. Even if it is clear that the doctor performed below the expected standards in his or her field, the patient can’t sue for malpractice if the patient didn’t suffer any harm. Here are examples of the types of harm patients can sue for:

  • physical pain
  • mental anguish
  • additional medical bills, and
  • lost work and lost earning capacity.

Common types of Medical Malpractice

A wide variety of situations can lead to a medical malpractice claim – from a doctor leaving a sponge in a patient’s stomach during an operation to failing to tell a patient that a prescribed drug might cause heart failure. Most medical malpractice claims fall into one of these categories:

  • Failure to diagnose. If a competent doctor would have discovered the patient’s illness or made a different diagnosis, which in turn would have led to a better outcome than the one actually achieved, then the patient may have a viable medical malpractice claim.
  • Improper treatment. If a doctor treats the patient in a way that no other competent doctor would, the patient could have a medical malpractice claim. In a similar vein, it may also be malpractice if the doctor selects the appropriate treatment but administers it incompetently.
  • Failure to warn a patient of known risks. Doctors have a duty to warn patients of known risks of a procedure or course of treatment – this is known as the duty of informed consent. If a patient, once properly informed of possible risks, would have elected not to go through with the procedure, the doctor may be liable for medical malpractice if the patient is injured by the procedure (in a way that the doctor should have warned could happen).

Special Requirements in Medical Malpractice Cases

Many states have special rules and procedures for medical malpractice claims. It is important to know about these rules and follow them carefully.

Medical malpractice cases must be brought soon after the injury. In Illinois, you must bring a medical malpractice claim within two years of the negligent act. (The time period in which you must bring the lawsuit is called the “statute of limitations.”) If you don’t file the lawsuit within the specified period of time, the court will dismiss the case regardless of the facts.

Expert testimony is required. Expert opinions are often a crucial feature of the patient’s case. A qualified expert is usually required at trial. Rules vary as to what makes somebody qualified to provide expert medical testimony, but generally it is someone with experience in the particular field at issue.

Damages in Medical Malpractice Cases

Medical malpractice damages can include recovery for pain and suffering, medical bills, and reduced quality of life.

A patient injured by medical malpractice can recover a wide variety of damages – from medical bills to the loss of enjoyment of life to future earnings losses. If the medical malpractice results in the patient’s death, the patient’s family and heirs can also recover damages.

General and Special Damages

To get a damage award, the patient must show that:

the medical malpractice caused the damages in some way, and
some kind of approximate price tag can be put on the damages.

The three categories of damages available in medical malpractice cases are general and special.

General damages. General damages refer to the patient’s cost of suffering that, although real, cannot by its nature have a definite price. The most common examples are:

  • loss of enjoyment of life
  • physical and mental pain and suffering, and
  • loss of future earning capacity.

Every case is different and there are no clear rules about how the exact amount of damages is determined. To arrive at a dollar value, the patient and others will give evidence about the patient’s pain and suffering, loss of enjoyment, and so on. An expert might testify (give evidence) about the usual consequences of the patient’s injury. If the patient is relatively young and will be impaired long term, expert testimony about how to estimate the value of lost earning capacity may be necessary.

Keep in mind that general damages aren’t available for an injury existing before the malpractice, or the pain and suffering that a pre-malpractice injury, by itself, will cause in the future.

Special damages. Special damages cover the more quantifiable expenses caused by the medical malpractice, including medical bills and past missed work. Although there is often some guesswork involved, particularly when it comes to future medical expenses, special damages are typically more exact than general damages. An expert may still be useful, but in some states simply submitting a certified copy of the medical bills is good enough, depending on the facts of the case.

Damages Based on the Death of the Patient

Illinois has laws determining what damages can be recovered if the medical malpractice results in the patient’s death. These are called survival statutes and wrongful death statutes.

Survival statutes. Survival statutes allow the deceased patient’s heirs or estate to recover damages that occurred during the time period from the initial medical malpractice to the death of the patient. These damages generally include everything allowed in a malpractice suit had the patient survived, except for damages relating to the future, like earning capacity. Some survival statutes also provide for recovery of funeral expenses, although this is usually part of the wrong death statute.

Wrongful death statutes. Wrongful death statutes are designed to compensate the patient’s family for their future monetary loss. The calculation is more thorough than a simple projection of future salary – it also considers factors like the patient’s spending, saving, and working habits. Compensation for the family’s loss of companionship or emotional harm is typically not allowed under the wrongful death statutes, although recently some states have allowed that kind of recovery.

Because medical malpractice law is highly regulated by a complex body of rules, which vary considerably from state to state, it is often essential to get advice or representation from a lawyer. Call Michael J. Brennan for a free consultation.

With offices conveniently located in Orland Park, Illinois, as well as downtown, personal injury attorney Michael Brennan requires no fees until you achieve your compensation settlement. Call us for a free consultation in regards to your medical malpractice claim and the possibilities for compensation.