The best news to hear from a doctor is, “Everything is fine.” Unfortunately, test results aren’t always favorable. In some instances, medications can be prescribed, surgery may be recommended, or lifestyle changes may be needed. These are all expected occurrences when dealing with your health.
What you don’t expect is to be harmed by your doctor through a negligent act. When that happens, you might have actionable cause to sue for medical malpractice.
Filing this type of lawsuit is inherently complicated. It relies on medical experts, strong documentation, and compelling evidence to prevail. This type of lawsuit also needs the support of an experienced Marion medical malpractice lawyer to help navigate the complexities of Illinois medical malpractice laws.
If you feel that you or someone you care about has suffered harm from a doctor or hospital’s negligence, it is important that you find out what the legal boundaries are and what your legal options might be.
Meeting the Legal Definition of Medical Malpractice in Illinois
In order to sue for medical malpractice in Illinois, you need to meet a legal definition that is similar to other types of personal injury cases.
First, you need to establish the professional relationship that exists between you and the healthcare provider, and that the provider owed a duty of care that would be similar to any other trained professional under the same circumstances. This is the easiest aspect of medical malpractice to establish.
Basically, it means that the treatment you get from one doctor should be the same as the treatment you would get from another doctor with the same level of experience.
Next, you have to demonstrate that the medical practitioner deviated from that standard of care. This is considered a breach or an act of negligence. Closely tied to the breach is the next element you need to establish: causation. This directly connects the negligence to your injury.
Finally, you have to provide a complete assessment of the damages attributable to the harm.
This is the foundational framework for a medical malpractice lawsuit. Proving the breach can be especially challenging when several mitigating factors are present.
The Mandatory Section 2-622 Affidavit of Merit Requirement
Most car accidents are easy to prove fault. When a driver runs a red light, speeds, or is intoxicated, they are clearly responsible for the resulting crash. With a medical malpractice claim, you can’t merely accuse a doctor of causing you harm.
You need to back up that allegation with tangible evidence. That evidence begins with a mandatory Affidavit of Merit.
As spelled out in Illinois Section 2-622 (735 ILCS 5/2-622), this affidavit demonstrates that your claim of malpractice has merit. That doesn’t automatically mean you will win the lawsuit. It just means that there is sufficient evidence to warrant a trial.
The affidavit must meet the following requirements:
Qualified Reviewer
The affidavit needs to be prepared by a qualified professional who specializes in the same area of medicine that would be applicable to your injury. For instance, if you were harmed during rotator cuff surgery, then your Affidavit of Merit needs to be written by an orthopedic surgeon.
Meritorious Determination
The affidavit must indicate that the accused party failed to meet the standard of care for a similar professional and that failure resulted in your injury. These findings will be detailed but not rebutted. That happens in a trial.
Timing
In Illinois, the affidavit must be filed with the initial complaint to avoid the court dismissing the entire matter.
Obviously, preparing this affidavit will require you to present all of your relevant evidence to the qualified reviewer. That is when the support of a reliable medical malpractice attorney will prove to be invaluable.
Gathering Essential Evidence to Support Your Malpractice Claim
The strength of any medical malpractice claim will come down to a matter of evidence. In some cases, you might have to backtrack to gather some information, but it is essential to have a complete record of what occurred in order to convince an insurance company of the merits of your claim.
Your attorney will be able to help identify and help you procure the following critical pieces of evidence for your medical malpractice claim:
- All medical records
- Medical bills
- Insurance documents
- Any correspondence with a healthcare provider or Insurer
- Witness statements
- Treating expert opinions
- Your employment records
- Your personal journal
- Photos and videos
- Text messages
If the malpractice resulted in a wrongful death, it will be important to obtain the death certificate and autopsy report. When you present compelling evidence, it puts you in a stronger negotiating position.
The Role of Expert Witnesses in Proving Medical Error
Expert witnesses will prove to be invaluable for your medical malpractice claim. These will be the medical professionals who can testify to the core elements of your claim and pinpoint where the negligence occurred that caused you harm.
If your claim moves to a civil trial, your expert witness needs to convey what happened to the jury in terms they can understand. They will also be able to counter any arguments that the defense might try to raise, such as the assertion that what happened to you was unavoidable.
When selecting an expert witness, your attorney will need to find a relevant specialist who works in the same field as the defendant. They must also be qualified with training and experience. Their goal is to provide objective insight into the claim to help the average person understand the scope of what happened.
Adhering to the Illinois Statute of Limitations for Medical Negligence
In Illinois, the statute of limitations for a personal injury claim is two years from the date of the injury. However, the statute of limitations is a bit different in a medical malpractice case. It is also two years from the discovery of the injury, or from when it should have been discovered.
There is also a maximum deadline of four years from the act. This is referred to as the Statute of Repose. That means that no medical malpractice claim can be filed more than four years after an incident.
For example, you might have had your surgery three years ago, but only recently discovered the adverse effect. You would still be able to file.
The exception would be if a foreign object were left in the body. Is that possible?
CNN reported on a case involving a woman who had two surgical sponges left in her body for six years after an operation.
Additionally, a minor who was injured due to a doctor’s negligence has until their 22nd birthday to file a claim. You also need to know that a claim against a public hospital or government entity requires you to file within one year.
Why Experience Legal Counsel Matters
If all of this seems complicated, it is. That is why you need an experienced legal team like you’ll find at Prince Law Firm to help you make sense of it all. We have helped many clients navigate the complexities of a medical malpractice claim.
Our firm has access to a network of medical professionals who can testify to the details of the claim and provide the necessary Affidavit of Merit.
We recognize that a medical malpractice claim is emotionally complex, as you’re asserting that someone you put your trust in failed in their responsibilities. It’s understandable to feel guilty about the possible harm this complaint might cause to their reputation, but that shouldn’t deter you from seeking justice and accountability.
If you’ve been harmed by a medical professional, we want to hear what happened.
Reach out to our firm to schedule a free consultation, where we can answer your questions and advise you on possible next steps.
Don’t let time run out.
