Legal Steps to take to Initiate a Trial

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There is a very structured and common two-step dance that begins every medical malpractice case in Illinois. This page will give you some background on what takes place at the beginning of a case-what you need to do as a plaintiff’s lawyer and what you should expect.

Part 1: The Complaint

Cases based on medical malpractice arise out of common law but Illinois statutes also put requirements on their complaints. Specifically, plaintiffs must allege and prove three things:

1. There exists a certain standard of care in the relevant field of medicine that the defendant works in and it is one that can be calculated;

2. The defendant’s medical care or treatment deviated from that identified standard;

3. Because of the defendant’s deviation from the identified standard of care, the plaintiff directly and proximately was injured.

For more information, see 735 ILCS 5/2-622. If proving any of these elements requires skill or training, expert testimony is generally needed; however, if the care or treatment is so common or was so grossly negligent that its breach could be understood by a layperson, then generally expert testimony is not needed to establish these three elements. In certain instances, plaintiffs’ lawyers can use res ipsa loquitur to prove the element of deviation, or negligence. Res ipsa loquitur occurs when negligence can be found from the very occurrence or nature of the act itself but only when certain conditions apply. For Illinois medical malpractice cases, res ipsa loquitur can be used to prove negligence (i.e. a deviation from the standard of care) when the following conditions are present:

1. The plaintiff’s injury would not have ordinarily occurred without negligence;

2. The plaintiff was exclusively under the control of the defendant when he or she was injured.

Mechanically, the complaint must identify the parties involved in the medical malpractice incident, the facts surrounding the treatment or care, the basis upon which the lawsuit stands, justification for the court’s jurisdiction and venue, the damages suffered, and the relief which you are seeking. Legally, the plaintiff must show that the healthcare provider owed a duty to the plaintiff, breached that duty, and that that breach casually produced injury to the plaintiff. One interesting turn in the law that should be noted involves damages. Prior to 2010, the Illinois legislature had put in place a cap on non-economic damages (for subjective losses such as pain and suffering, disfigurement, loss of companionship, etc.), limiting recovery to $500,000.00 against a doctor and $1,000,000.00 against a hospital. However, the Illinois Supreme Court in 2010 ruled that this cap was unconstitutional in the case of LeBron v. Gottlieb Memorial Hospital. So, now there is no cap on damages of any kind in medical malpractice cases.

Finally, the other significant consideration when crafting your complaint is the statute of limitations. See 735 ILCS 5/13-212. Plaintiffs must file actions within two years from when they “Knew or, through the use of reasonable diligence, should have known of the existence of the injury or death for which damages are sought.” 735 ILCS 5/13-212(a). However, under no circumstances can actions be brought after four years from the time of the incident. Plaintiffs’ lawyers must allege and prove that the statute should be tolled to extend the two-year period by stating the plaintiff “Did not know nor should he or she have known, through the exercise of reasonable diligence, that he or she had sustained the injury and that the injury was wrongfully caused by the defendant more than two years before the filing of his or her complaint.” Knapp v. Galinski, 249 Ill.App.3d 243, 618 (1st Dist. 1993). Finally, under certain instances-legally minority or disability status-these two- and four-year periods can be extended. For sample Illinois medical malpractice suits, see these:

In addition to filing a complaint, plaintiffs in Illinois medical malpractice cases must also file an affidavit of meritorious basis for their suits. The report, signed by the health professional, must state that there is a reasonable and meritorious reason for filing the lawsuit and the grounds for why the professional believes so. Also, the plaintiff must state that 1) the professional is reasonably acquainted with the facts and issues involved in the case 2) the professional practices or teaches or has practiced or taught in the same medical field as is relevant to the case in the last 6 years and 3) is qualified by experience or practice to conclude that there is a meritorious basis for filing this complaint and that the plaintiff has reviewed the professional’s report and also believes there is a meritorious basis for filing the complaint. Ill. Rev. Stat. ch. 735, §5/2-622. For sample affidavits of meritorious basis, see here:

Part 2: The Answer

After the plaintiff makes the initial salvo in the form of a complaint, the defendant(s) in medical malpractice cases will normally file an answer. In the answer, they must either admit, deny or plead a lack of information to respond to every allegation made by the plaintiff. If the defendant chooses the last option, he or she must file an affidavit swearing to such insufficient knowledge. The defendant can also raise affirmative defenses to the complaint, known as counterclaims, and the plaintiff must respond to every one of them. For example, the defendant can attack the sufficiency of the complaint itself, raise new matter which makes the complaint legally insufficient, or claim that the plaintiff’s injury arose due to the negligence of some third party. These matters will be decided by the court and if the judge thinks that genuine issues of material fact survive, then the case will go to trial. To see sample answers from Illinois medical malpractice cases, see below:

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