Medical malpractice cases are a mainstay in personal injury litigation. They occur as a result of the misconduct of a healthcare professional such as a doctor or nurse. This article is designed to give you an understanding of the various laws and cases that surround medical malpractice cases so that you can better understand their outcomes.
The Stopwatch: Statute of Limitations.
Across the nation, states have independently moved to bar cases that are too far and removed from when they actually happened. The laws that limit actions that are too old are called statutes of limitation. They are time limits on your recovery. Illinois has these laws and they vary by the kind of case and injury. The underlying rationale for statutes of limitation is that it drains the court’s resources trying cases that are too old and that all citizens deserve to be free from the threat of litigation after a certain amount of time. Here are the four relevant sections surrounding Illinois medical malpractice cases:
- 735 ILCS 5/13-212(a): “Except as provided in Section 13-215 of this Act, no action for damages for injury or death against any physician, dentist, registered nurse or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first, but in no event shall such action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death.”
- 735 ILCS 5/13-212(b): “Except as provided in Section 13-215 of this Act, no action for damages for injury or death against any physician, dentist, registered nurse or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 8 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death where the person entitled to bring the action was, at the time the cause of action accrued, under the age of 18 years; provided, however, that in no event may the cause of action be brought after the person's 22nd birthday. If the person was under the age of 18 years when the cause of action accrued and, as a result of this amendatory Act of 1987, the action is either barred or there remains less than 3 years to bring such action, then he or she may bring the action within 3 years of July 20, 1987.”
- 735 ILCS 5/13-212(c): “If the person entitled to bring an action described in this Section is, at the time the cause of action accrued, under a legal disability other than being under the age of 18 years, then the period of limitations does not begin to run until the disability is removed.”
- 735 ILCS 5/13-212(d): “If the person entitled to bring an action described in this Section is not under a legal disability at the time the cause of action accrues, but becomes under a legal disability before the period of limitations otherwise runs, the period of limitations is stayed until the disability is removed. This subsection (d) does not invalidate any statute of repose provisions contained in this Section. This subsection (d) applies to actions commenced or pending on or after the effective date of this amendatory Act of the 98th General Assembly.”
- 735 ILCS 5/13-215: “Fraudulent concealment. If a person liable to an action fraudulently conceals the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within 5 years after the person entitled to bring the same discovers that he or she has such cause of action, and not afterwards.”
There are some important takeaways from these laws. First, the general rule is that plaintiffs have two years to file a medical malpractice action. If they did not discern that the malpractice (i.e. the injury), then that date might be pushed back. Second, however long it took to discover that malpractice occurred, plaintiffs only have four years from when it occurred to file an action. Third, special exceptions are made for minors and the disabled. Minors have 8 years to bring an action but must file before they turn 22.
The statute of limitations for the disabled is extended until the disability is removed. Fourth, and finally, if the malpractice was fraudulently concealed, then the plaintiff 5 years after discovering it to file the action. These define the parameters of the Illinois medical malpractice statute of limitations.
They are stopwatch on your case. You need to move quickly to file or time will run out and you will not be able to get recovery. Consult with an Illinois medical malpractice attorney if you believe you have been the victim of medical malpractice today!
Summons to Court: Wrangling Your Defendants Into The Case
Before you can actually get into the case, you need to formally serve the defendants with a summons to appear to court and a complaint. The service can be done either by the sheriff or, failing that, by a private person as long as that person is certified by the court. The summons should instruct the defendants when they are to appear before court or answer in writing. The typical return period is about 30 days. However, if there is no service, or if there is defective service, then the case will not go forward and you will loose valuable time and money refilling it. Here are the proper methods of service for your medical malpractice case:
- You can serve them personally or just leave a copy of the summons and complaint at their place of abode with someone over the age of 13 as long as you also mail it to them via certified mail. This is outlined in 735 ILCS 5/2-203: “Except as otherwise expressly provided, service of summons upon an individual defendant shall be made (1) by leaving a copy of the summons with the defendant personally, (2) by leaving a copy at the defendant's usual place of abode, with some person of the family or a person residing there, of the age of 13 years or upwards, and informing that person of the contents of the summons, provided the officer or other person making service shall also send a copy of the summons in a sealed envelope with postage fully prepaid, addressed to the defendant at his or her usual place of abode…”
- You can serve a corporation by serving their registered agent as 735 ILCS 5/2-204 provides: “A private corporation may be served (1) by leaving a copy of the process with its registered agent or any officer or agent of the corporation found anywhere in the State…”
- You can serve non-residents by serving the Illinois Secretary of State and then mailing a copy of the complaint and summons via registered mail to their last known address as 625 ILCS 5/10-301 states: “If such person is a non-resident of this State or at the time a cause of action arises is a resident of this State but subsequently becomes a non-resident of this State, or in the event the vehicle is owned by a non-resident and is being operated over and upon the highways of this State with the owner's express or implied permission. Service of such process shall be made by serving a copy upon the Secretary of State or any employee in his office designated by him to accept such service for him, or by filing such copy in his office, together with an affidavit of compliance from the plaintiff instituting the action, suit, or proceeding…”
Service of process is a gritty procedure. Often times, defendants duck it to waste times, prolong the court process, or otherwise avoid liability. While annoying, it must be done to perfection or your case will be over before it begins.
Crafting Your Case: Putting All The Puzzle Pieces Together
The Four Prongs Of Negligence
Medical malpractice cases typically involve a claim of negligence. This means that the healthcare provider did not serve the patient with the care that a similarly situated provider would have. In other words, their care fell below a standard of reasonableness that is customary to the circumstances. Claims of negligence involve four aspects and the plaintiff must prove every one of them.
- Duty: The defendant owed a legal duty to the plaintiff. Doctors, hospitals, nurses, and other associated medical parties owe a duty to every patient to provide care and services that are reasonable in the circumstances. This extends to misdiagnosis, selection of medication, selection of medical devices, instructions for care, delay in services, the supervision of care, and other related problems. Establishing duty is a holistic process. Illinois courts allow it to be established by custom, expert testimony, law, and other factors. See Kotvan v. Kirk, 321 Ill. App. 3d 733, 747 (1st Dist. 2001).
- Breach: The defendant breached that duty. Unless the procedure is very common or defendant’s conduct was so gross negligent that laypersons can understand its character, plaintiffs must prove breach with expert testimony. Prairie v. University of Chicago Hospitals, 298 Ill. App. 3d 316, 332 (1st Dist. 1998).
- Causation: The defendant’s breach was the legal and direct cause of the plaintiff’s injuries. In the civil context of a medical malpractice case, the standard of proof is a preponderance of the evidence. For causation, the analysis is similar because the question is whether or not the defendant’s breach probably caused the plaintiff’s injuries. Pantaleo v. Our Lady of Resurrection Medical Center, 297 Ill. App. 3d 266, 231 (1st Dist. 1998).
- Damages: The plaintiff’s injuries produced damages. The bar for demonstrating damages in medical malpractice cases is not hard to clear for plaintiffs. They need not show that a different outcome would have produced a superior result or even that, absent the defendant’s negligence, something different would have happened. They can either 1) prove damages or 2)show that the defendant’s negligence cost the plaintiff the chance of recovery by some percentage. Lambie v. Schneider, 305 Ill. App. 3d 421, 239 (4th Dist. 1999).
The Expert Certification
As mentioned before, it is not enough to merely state a standard of care and claim that the defendant breached that standard. With the complaint (or at least 90 days within filing it), plaintiffs must also attach an affidavit signed by an expert stating that the case has a meritorious basis. 735 ILCS 5/2-622 sets forth the rule in the following:
“(a) In any action, whether in tort, contract or otherwise, in which the plaintiff seeks damages for injuries or death by reason of medical, hospital, or other healing art malpractice, the plaintiff's attorney or the plaintiff, if the plaintiff is proceeding pro se, shall file an affidavit, attached to the original and all copies of the complaint, declaring one of the following: 1. That the affiant has consulted and reviewed the facts of the case with a health professional who the affiant reasonably believes: (i) is knowledgeable in the relevant issues involved in the particular action; (ii) practices or has practiced within the last 6 years or teaches or has taught within the last 6 years in the same area of health care or medicine that is at issue in the particular action; and (iii) is qualified by experience or demonstrated competence in the subject of the case; that the reviewing health professional has determined in a written report, after a review of the medical record and other relevant material involved in the particular action that there is a reasonable and meritorious cause for the filing of such action; and that the affiant has concluded on the basis of the reviewing health professional's review and consultation that there is a reasonable and meritorious cause for filing of such action.”
In sum, the expert must state that he or she has six years of experience in the relevant medical area, that has knowledge of the issues involved in the cases, has consulted the relevant records, and is qualified by experience to state that there is a meritorious basis for filing the case. Outside of the substance at stake here, the critical thing to remember is that finding an expert, letting them become acquainted with the record, and drafting a certification is a long process. With the statute of limitations in mind, it is best to begin this process early. Also, this is an expensive proposition-expert witnesses charge a lot by the hour. Then, to eventually use an expert witness at trial, he or she must be licensed in the relevant practice area and spend at least 75% of their time working in the relevant medical field.
Damages: Targeting Your Recovery
Analyzing the size and location of your recovery will be one of the foremost determinations in your medical malpractice lawsuits. The first thing to understand is that there are different kinds of damages: economic, non-economic, and punitive.
The first, economic damages, compensate the plaintiff for out-of-pocket losses such as medical bills, lost income, or damaged property. The second, non-economic damages, compensate the plaintiff for more intangible losses such as pain and suffering, disfigurement, and loss of support. The third, punitive damages, punish a defendant and seek to deter similar behavior in the future.
Illinois does not limit how much a plaintiff can be compensated for economic damages in medical malpractice cases. Illinois used to limit plaintiffs’ recovery of non-economic damages to $500,000 against a doctor and $1,000,000 against a hospital but the Illinois Supreme Court struck down these limits in LeBron v. Gottlieb Memorial Hospital in 2010. So, while the sky is limitless for the first two kinds of damages, it is crushing for punitive damages because they are not allowed in medical malpractice actions as the law sets out in 735 ILCS 5/2-1115.1(a):
“In all common law, statutory or other actions that seek damages on account of death, bodily injury, or physical damage to property based on negligence, or product liability based on any theory or doctrine, recovery of non-economic damages shall be limited to $500,000 per plaintiff. There shall be no recovery for hedonic (punitive) damages.”
Interestingly, the Court has ruled that a ban on punitive damages is constitutional. See Bernier v. Burris, 113 Ill. 2d 219 (1986).
Outside of the nature of your recovery, the other significant consideration will be its location. Naturally, the hospital and any of its employees may be liable for any of their acts and omissions during your stay there. Also, the doctors, surgeons, or other professionals are responsible in their own right as well because they typically act as independent contractors.
However, on a theory of vicarious liability you may be able to establish that the hospital is liable for the acts of doctors and these professionals. This is a theory of secondary responsibility. Its basic premise is that the person giving care was an agent of the hospital because the hospital controlled him or her, the person assented to the control, and the person was acting for the benefit of the hospital. This is a critical element to establish because it could lasso the hospital into the lawsuit and raise recovery possibilities.
Finally, there are two rules related to damages that must be mentioned. The first is the collateral source rule and this only exists in medical malpractice cases. 735 ILCS 5/2-1205 provides the following:
“Reduction in amount of recovery. An amount equal to the sum of (i) 50% of the benefits provided for lost wages or private or governmental disability income programs, which have been paid, or which have become payable to the injured person by any other person, corporation, insurance company or fund in relation to a particular injury, and (ii) 100% of the benefits provided for medical charges, hospital charges, or nursing or caretaking charges, which have been paid, or which have become payable to the injured person by any other person, corporation, insurance company or fund in relation to a particular injury, shall be deducted from any judgment in an action to recover for that injury based on an allegation of negligence or other wrongful act, not including intentional torts, on the part of a licensed hospital or physician; provided, however, that:
(1) Application is made within 30 days to reduce the judgment;
(2) Such reduction shall not apply to the extent that there is a right of recoupment through subrogation, trust agreement, lien, or otherwise;
(3) The reduction shall not reduce the judgment by more than 50% of the total amount of the judgment entered on the verdict;
(4) The damages awarded shall be increased by the amount of any insurance premiums or the direct costs paid by the plaintiff for such benefits in the 2 years prior to plaintiff's injury or death or to be paid by the plaintiff in the future for such benefits; and
(5) There shall be no reduction for charges paid for medical expenses which were directly attributable to the adjudged negligent acts or omissions of the defendants found liable.”
What does this mean? Basically, when hospitals or insurance companies are also responsible for the injuries of the plaintiff, the defendant can request a reduction in the award related to disability and lost wages income. However, the request must be made within 30 days of the verdict and can only be reduced by 50%.
The second rule that impacts damages relates to attorney’s fees. Illinois has a cap on them in the medical malpractice context as 735 ILCS 5/2-1114 provides:
“(a) In all medical malpractice actions the total contingent fee for plaintiff's attorney or attorneys shall not exceed 33 1/3% of all sums recovered.”
This is important because until recently Illinois maintained a graduated schedule that allowed plaintiffs’ lawyers to keep 33.33% of the first $150,000 in recovery, 25% of the next $850,000 recovered, and 20% of recovery over $1,000,000. Now, the cap is simply one-third of all recovery.
The Fault System In Illinois Malpractice Cases
There are three important rules regarding fault in Illinois medical malpractice law:
1-Comparative Negligence. 735 ILCS 5/2-1116 provides the following:
“In all actions on account of bodily injury or death or physical damage to property, based on negligence, or product liability based on strict tort liability, the plaintiff shall be barred from recovering damages if the trier of fact finds that the contributory fault on the part of the plaintiff is more than 50% of the proximate cause of the injury or damage for which recovery is sought. The plaintiff shall not be barred from recovering damages if the trier of fact finds that the contributory fault on the part of the plaintiff is not more than 50% of the proximate cause of the injury or damage for which recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of fault attributable to the plaintiff.”
Illinois has a modified comparative fault system. This means that plaintiffs can only recover if there negligence regarding the incident was less than 50% responsible for their injuries, and their recovery will be reduced by the amount of their culpability.
2-Joint and Several Liability. Joint and several liability exists when more than one party is responsible for the injuries of a victim but the victim can collect the entire amount of his or her damages from any of the parties. Illinois maintained this rule for a long time but in 1995 the legislature removed joint liability. This lasted only until 1997 when the Illinois Supreme Court, in Best v. Taylor Machine Works, ruled that this was unconstitutional. Therefore, the traditional system of joint and several liability continues today and applies to medical malpractice cases. This means that if a doctor, hospital, and pharmaceutical company are all liable for your injuries you can go after any one of them for all of your damages.
3-Contribution. 740 ILCS 100/2 provides the following:
“(a) Except as otherwise provided in this Act, where 2 or more persons are subject to liability in tort arising out of the same injury to person or property, or the same wrongful death, there is a right of contribution among them, even though judgment has not been entered against any or all of them.”
The real effect of contribution must be seen in the context of joint and several liability, because the latter allows the plaintiff to achieve the total recovery from any defendant, some defendants might wind up paying more than their fair share. Thus, contribution allows them to go back to their co-defendants for payment of their shares. The theory is that the courts will not delay a plaintiff’s recovery and that defendants should fight among themselves only after the victim has recovered. The practical effect of this is that plaintiffs’ lawyers should first go after the defendant where recovery seems the quickest and greatest.
Contact Us Today To Discuss How These Laws Impact You
If you think you have been the victim of medical malpractice at an Illinois facility, get in touch with Rosenfeld Injury Lawyers LLC today! We can walk you through the relevant laws and inform you of how they impact your particular facts and circumstances. Do not delay your recovery, call now!