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Medical Malpractice FAQ

What Constitutes Medical Negligence?

Medical Negligence claims are often called Medical Malpractice cases. Since they are another kind of personal injury due to someone else’s negligence, please also refer to the Personal Injury discussions. Special laws have been passed regarding medical negligence suits, including requirements which must be met before a suit can be filed. Both Illinois and Indiana have passed such laws but they differ. For the purpose of this discussion, we will concentrate on Illinois laws.

Generally speaking, a person must have suffered bodily injury or death as a result of some medical professional’s negligence. Negligence in this case would mean that the medical professional failed to meet the standard of care reasonably expected of that type of professional person. A specialist is held to a higher standard of care than a non-specialist. Thus, for example, the court would instruct a jury in a case against a neurosurgeon as follows: “A neurosurgeon who holds himself out as a specialist and provides service in his specialty, must possess and apply the knowledge and use the skill and care ordinarily used by a reasonably well qualified specialist practicing in the same or similar locality, under circumstances similar to those shown by the evidence. A failure to do so is professional negligence.” (IPI 105.02)

In addition to doctors, medical professionals may include, among others, nurses, psychiatrists, psychotherapists, medical technicians, and even most ambulance personnel.

What Cases Can Be Successfully Pursued?

Before you can sue any medical professionals, or the hospitals or clinics they work for, you must obtain a Certificate of Merit from a qualified professional of equal rank and specialization with the person or persons you are accusing of malpractice. This person or persons must not only set forth specifically what the defendant did wrong, but also that it was the proximate cause of some specific damage to the plaintiff, which he or she would not otherwise have suffered.

The term “proximate cause” means any cause which, in natural or probable sequence, produced the injury complained of. It need not be the only cause and may concur with other causes acting at the same time, which in combination with it, causes the injury. (IPI 15.01) As an example, we recently settled a case in which we alleged that a doctor failed to recognize the symptoms suffered by the plaintiff as being a heart attack, and the nurses at the hospital failed to run a follow up test ordered (which would have provided added evidence he was having a heart attack), and the hospital policy failed to require that doctors be called with the results of another test (that clearly demonstrated a recent heart attack), and a nurse failed to find that report on the computer and tell the doctor when he asked, and the doctor failed to call the lab to find out what happened to the test. Each of these things, if proven, is a “proximate cause” of the injury complained of. To prove damages in this case, it was necessary to show that the patient suffered additional injury above and beyond what he would have suffered anyway as a result of the heart attack, due to delay in obtaining a proper diagnosis and treatment.

What Are The Fees?

Medical negligence claims often involve many hundreds of hours of attorneys time and many thousands of dollars in costs in order to reach the point of trial. They are rarely settled without filing a lawsuit, but almost always settled just prior to trial if they are true and just claims which have been well proven through the plaintiff’s expert and careful preparation for trial. Discovery work, including many depositions, often tend to “prove up” the claim before it ever reaches a jury. Thus, it is usually only “at the courthouse steps” that the defendants breakdown and agree to pay out the type of award sufficient to cover the sometimes catastrophic damages involved. Because medical malpractice claims can easily cause the attorneys to advance $50,000.00 or more in costs just to get to the point of trial, they must be very substantial claims involving serious permanent damage in order to justify the time and expense. Despite the difficulty involved and the skill required in litigating these cases, the contingent fee in these cases may be less than in other types of personal injury actions. Our fees, as prescribed by statute, are 1/3 (33 1/3%) of the amount recovered.

What Is The Statute of Limitations?

A statue of limitations imposes a time limit within which one must file suit or forever lose their claim. In Illinois, the statute of limitations on medical negligence claims requires a competent adult to file suit within 2 years after he or she knew, or reasonably should have known, he or she was injured as a result of malpractice, but never more than 4 years from the actual date of the malpractice.  If, within the above time limits, the injured person dies, the wrongful death statute applies to limit an action to within 2 years of the date of death.  A minor child must file suit within 2 years of his or her 18th birthday (age of majority), but never more than 8 years from the actual date of the malpractice. The specific statute of limitations date for your claim can really only be determined after investigation of the specific facts involved.

How Do I Know If I Have A Case?

We are often able to discuss these matters briefly by telephone in order to determine whether it is worth while for you to pursue a claim and then, if appropriate, schedule a meeting in our office should you care to come in. Neither the phone call nor the initial conference will obligate you in anyway nor do we charge for such consultations. After giving us some initial information, we will either talk to you by phone or call you back promptly. For further information on how we work with our clients, please read Our Philosophy. If you feel you have a case worth pursuing, obtain medical records as soon as possible to avoid “revisions” and, in death cases it is often advisable to demand an autopsy be performed. If either is denied you, contact an attorney promptly.

Who Is Qualified To Handle Medical Negligence Cases?

As you can see, medical negligence cases are complex, highly technical and should be undertaken only by attorneys who are experienced and knowledgeable in this area of legal practice. Since 1980, Richard J. Doyle has successfully worked with other attorneys on numerous medical negligence claims. A strong team effort is absolutely necessary to win these cases. You may ask what we mean by saying “A Winning Team Working For You”? In what way is a team effort involved? If you review the professional qualifications and backgrounds of the attorneys, paralegal, nurse consultant and legal assistants listed under Our Team on the menu bar, you will find people who have years of experience in fields such as medical training, which greatly assists us in determining the nature and extent of an injury or the existence of a malpractice. You will find people with extraordinary experience in the use of software specifically designed to assist attorneys in everything from organization, summarization and rapid computerized research, thus helping to assure us that all your evidence and the best law in your favor are presented at your trial. And you, too, are made a key team member throughout the case.

What attests to this firm’s capabilities?

Best results are always the best evidence. The firm has achieved a number of multi-million dollar recoveries over the years which has qualified all attorneys in the firm for membership in the prestigious Million Dollar Advocates Forum. To belong, an attorneys must have achieved multiple verdicts or settlements of one million dollars or more each. From the computerized digital images of your injuries, to the unfettered ability to do national and even international legal and medical research, our team works in a state of the art fashion to provide you with highly qualified expert testimony and complete case preparation and presentation. Every year our firm achieves large awards for our medical negligence clients.  For some of our past results, click on Our Results.