Unfortunately, the very same people in sickness and despair who seek asylum from their illnesses are the ones hurt the most, by the people meant to help them. All across the country, patients are mistreated at the hands of doctors and nurses. While it is often unintentional, it does not make the pain easier, especially because it is unexpected. Generally, this is referred to as medical malpractice and includes any injury caused by a medical provider because of an act or omission that falls below an accepted standard. Illinois law gives a specific definition for this problem:
“Medical malpractice action” means 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 term “healing art” shall not include care and treatment by spiritual means through prayer in accord with the tenets and practices of a recognized church or religious denomination. (735 ILCS 5/2-1704).
While standards for malpractice from state to state, and country to country, typically, there are common elements you need to show in order to bring a case against a provider and receive compensation for your injury.
First, you must establish that you had a doctor-patient relationship with the person who you are claiming harmed you. You have to illustrate that you sought their professional attention and they agreed to help you.
Second, you must illustrate that the doctor was negligent in his or her care for you. This means that the provider must have acted in a way that was worse than most providers would have acted. They only have to treat your reasonably-not perfectly-and the line of reasonableness is defined by the particular context of your medical procedure. Reasonableness is defined as how most providers in that context would have acted.
Third, you must connect the dots between that claimed negligence and your injury. Finally, you have to demonstrate that this caused you damages. These damages can take many forms and include some of the following:
- Physical injuries such as scarring.
- Mental distress such as anxiety.
- Increased medical bills to correct the inadequate care.
- Loss of earnings because of an inability to work.
- Loss of companionship because of the wrongful death of a partner.
Outside of these basic parameters, there are specific things to consider when bringing a medical malpractice case to trial. The first is timing. All states have statute of limitations that bar actions after a certain amount of time but Illinois has specific rules for these cases. According to Illinois law, plaintiffs have two years from when the injury occurred or from when they should have know it occurred to file suit and cannot file in any case after four years. For minors, there is the added wrinkle that they can bring lawsuits up to eight years after they turn eighteen as long as they file before turning twenty-two. 735 ILCS 5/13-212.
Another important factor to consider is that Illinois medical malpractice lawsuits require expert testimony. This will guarantee additional time spent finding competent medical professionals as well as money to pay them for their time and expertise. Finally, one must never forget damages because that is often the first and final reason why patients become plaintiffs. For a long time there was a cap on non-economic damages in Illinois for such as things as pain, anxiety, suffering, loss of companionship, disfigurement and others. However, in 2010, the Supreme Court repealed the cap on non-economic damages in LeBron v. Gottlieb Memorial Hospital. Previously, there was already no cap on actual economic damages for such things as medical bills and loss of work. Now, the sky for damages is limitless.
Medical Errors Far More Common Than Anticipated
Across the nation, tens of thousands of people die every year in hospitals due to the negligence of doctors and other medical providers. Out of this grief, almost 20,000 lawsuits emerge against doctors for various combinations of injury and compensation. The New England Journal of Medicine reports that almost all doctors operating in high-risk environmental will be sued for some of medical malpractice.
It goes on to say that cases deemed “frivolous” by the public often do not see compensation and that most settled cases actually did involve provider error. It even derides the healthcare industry for slamming medical malpractice suits on one hand while actually spending the majority of their money in litigation on administrative expenses.Medical Malpractice Jury Verdicts in Illinois
Before giving any in-depth analysis of the results of medical malpractice jury awards and settlements in Illinois, it is necessary to draw the landscape of their results in dollars and cents, as well as other dimensions. This discussion will focus on the last ten years of legal decisions and settlements, since the beginning of 2004. As is the case in many other areas of law, claims of medical malpractice are often shut down right away, slamming the door in plaintiffs’ faces.
Thus, in plotting out all the outcomes, one must follow an inverse bell curve across the page. Approximately half of all cases netted zero gain to the plaintiff. This is a stunning realization because, first of all, there normally some injury in any cases, regardless of whether the suit is deemed frivolous or not, and second, there is considerable time spent bringing a case to action. Unfortunately, it is all for naught in a little over one out of two instances.
The real dearth of cases, however, lies at the bottom to medium range of compensation. Plaintiffs receiving awards or settlements between one dollar ($1.00) and five hundred thousand dollars ($500,000.00) only accounted for fifteen percent (15%) of all cases, and only four percent (4%) of all persons brought in less than one hundred thousand dollars ($100,000.00).
On the other hand, as one goes up the range of return, outcomes get progressively better for plaintiffs. Seven percent (7%) of them received between five hundred thousand dollars ($500,000.00) and one million dollars ($1,000,000.00); eighteen percent (18%) received between one million dollars ($1,000,000.00) and five million dollars ($5,000,000.00); finally, twelve percent (12%) received more than five million dollars ($5,000,000.00).
In terms of where plaintiffs decided to bring their lawsuits, the story is that they overwhelmingly came to Cook County to seek legal redress of their injuries. Almost two out of three plaintiffs, or sixty-six percent (66%) to be exact, filed in this jurisdiction. Other favorable counties that plaintiffs decided to bring suit in were DuPage (8%), Kane (7%), Lake (6%), and Madison (3%). Compared to the general, statewide average compensation amount of $1,460,120.35 for plaintiffs, those in Cook County fared a little better by bringing in approximately $1,670,598.01.
However, whatever area of the state victims brought their claims, they almost uniformly chose state court federal court; yet, those outside Cook went to federal court at a rate much higher than those inside Cook, almost nine times more. Finally, the rate of settlement was high in all jurisdictions approaching nearly with juries actually deciding relatively few cases.Deciphering Outcomes in Illinois Medical Malpractice Cases
Several themes resonate out of many medical malpractice cases in Illinois. The first is the battle that often takes place in the procedural framework that plaintiffs must operate within when bringing their suit to court. The first, and often most significant, hurdle they must clear is satisfying the statute of limitations. As mentioned above, it is the time limit by which all cases of certain categories must be brought. These are included to encourage would-be plaintiffs to act promptly, to give a sense of repose to all parties involved, and to conserve judicial resources by trying cases as closely to the incident as possibly.
As outlined above, for the purposes of medical malpractice actions, victims have two years from the date of injury to bring a suit (with adjustments for minors). However, Illinois has also adopted the “discovery rule” which does not start the clock for statute of limitations until “A plaintiff knows or reasonably should know of an injury and also knows or reasonably should know that it was wrongfully caused.” Golla v. General Motors Corp., 167 Ill. 2d 353 (1995). Yet, in all cases, plaintiffs must bring the lawsuit with four years of the time when “The act or omission … alleged … to have been the cause of [the complained of] injury (occurred).” 735 ILCS 5/13-212.
These rules have strict consequences. For instance, in 2007, a plaintiff brought action against a hospital because it did not inform her that the blood she had received in a transfusion potentially contained Hepatitis-C. While the time that had passed since the claimed negligence was well beyond the four-year window, she argued that the silence on behalf of the hospital should preclude application of the statute of limitations bar. She was wrong. The court stated it was not enough to remove the time limit and dismissed her case. Orlak v. Loyola University Health System, 228 Ill. 2d 1, 18 (2007).
On the other hand, there are certain instances where the four-year time period is not extended per se but defined differently. For instance, if the negligence of a healthcare provider is not one act but a chain or course of negligent care, then the four-year period does not begin until that course has come to a complete stop. This issue was squarely handled in Cunningham v. Huffman. In this case, the plaintiff sought the attention of a gynecologist. In their appointment, the doctor prescribed and applied an intrauterine device her. Subsequently, she began to experience pain from the device. The plaintiff would later contend than in later meetings the doctor continued to act negligently in his care.
The court stated that an ongoing course of inadequate treatment is treated as one occurrence for the purposes of the four-year limit. Conversely, it will not count as one occurrence, and the four-year period will begin to run, if the succeeding treatment is either unrelated or beneficial. Thus, if it directly emerges out of the same issue and all treatment thereafter is negligent, then the time period does not start until it is over.
One exception to this rule is that if at any point the doctor discloses to the patient the nature of the negligent care, then the four-year window starts. However, it is interesting to note that the premise of the rule does not change following this precedent-it is still four years. What did change following this case was the concept of what a legally recognizable incident is and this clarified that one incident can take place over a long period of time.
One significant carve-out to this general formula deals with fraud. Under Illinois law, and as set forth from case precedent, if a person has negligently harmed another and then fraudulently conceals that conduct, then the aggrieved person has five years to bring action from when they discovered they could bring such an action. 735 ILCS 5/13-215. Further, the Illinois legislature specifically adopted laws to ensure that this concept applied in the medical malpractice context. 735 ILCS 5/13-212. Significantly, courts have interpreted silence on behalf of medical providers to be a legally insufficient basis to constitute fraudulent concealment.
This was markedly demonstrated in Foster v. Plaut when the plaintiff contended that his doctor, a psychologist, negligently misdiagnosed and failed to provide for adequate care. To prove this point, he showed that the doctor failed to follow up with the patient and return his phone calls. Further, he argued that his situation worsened after visiting the doctor but did not realize it and that his provider was under an obligation to inform him of this. The court refuted all of these contentions. It stated that for purposes of the four-year period, silence cannot equal concealment (absent an existing legal duty) and that it did not toll the period for statute of limitations purposes.
Standard of Care in Medical Negligence Cases: What Should the Physician Do?
Another issue consistently found distinguishing victory and defeat in many cases is the success that plaintiffs have clearing the hurdle of the standard of care. As mentioned above, even if the plaintiff presents evidence that the provider injured him or her, the provider can rebut the claim of negligence if it shows, independently, that it acted within the standard of care. There are many implications to this rule.
One significant lesson that has played out in many cases is that doctors are not responsible for minor or even significant complications in the course of treatment as long as they operate within the standard of care. For instance, in Campbell v. U.S., the plaintiff entered the hospital for problems related to Ischemia. The doctors decided to perform several surgeries to respond to the growing complications.
Unfortunately, in the middle of these procedures, he suffered a stroke and died. The court ardently stated that while this outcome was the least desirable, it was also not negligence. It utilized a fact intensive analysis to come to the conclusion that they providers stayed within the standard of care while maintaining that doctors are not gods, sometimes the unlucky happens, and very unsuccessful doctor visit should not breed a lawsuit.
Growing out of this legal precedent is the idea that doctors cannot and will not be held to a standard requiring them responsible for every part of every patient. To impose this burden on doctors and healthcare providers would raise prices to intolerable limits and in the guise of perfecting medicine, destroy it. The legal ramifications of this were remarkably demonstrated in Netto v. Goldenberg. In this case, the plaintiff entered the medical facility for a quadruple coronary bypass. During the procedure, significant complications developed all throughout his body and while the doctors maneuvered to regain his health, they were unsuccessful. The court stated the medical profession should be held to the miraculous or unforeseen, only the reasonable response in those specific contexts. Here, they found that the staff acted more than reasonably and, thus, could not have been negligent.
These crucial substantive and procedural issues color the myriad of medical malpractice cases sprouting out of Illinois. Most of the time, they stand out so much, and legal issues are so resolved, that they normally do not need trial absent strong factual issues. This explains high settlement rates. The variation in verdict and settlement amount normally only signifies the specific degree of error in each particular circumstance. If you have experienced injury or injustice at the hands of the medical profession, it is critical that you speak with an experienced attorney. He or she can review your experiences and explain to you where to go next and how compensation can be achieved.
Sources and further reading:
- LeBron v. Gottlieb Memorial Hospital, 237 Ill.2d 217 (2010)
- Jena AB, Seabury S, Lakdawalla D, Chandra A (August 2011). “Malpractice risk according to physician specialty”.N. Engl. J. Med. 365 (7): 629–36.doi:10.1056/NEJMsa1012370. PMC 3204310.PMID 21848463.
- Claims, Errors, and Compensation Payments in Medical Malpractice Litigation, New England Journal of Medicine,May 11, 2006.
- Medical Malpractice Study, Disproving Frivolous Myth , Jeffrey B. Bloom, Gair, Gair, Conason, Steigman & Mackauf, The National Law Journal, July 3, 2006
- Golla v. General Motors Corp., 167 Ill. 2d 353 (1995).
- 735 ILCS 5/13-212.
- Orlak v. Loyola University Health System, 228 Ill. 2d 1, 18 (2007).
- Cunningham v. Huffman, 154 Ill.2d 398 (1993)
- 735 ILCS 5/13-215.
- 735 ILCS 5/13-212.
- Foster v. Plaut, 252 Ill.App.3d 692 (1st Dist., 1993)
- Campbell v. U.S., 904 F.2d 1188 (1990)
- Netto v. Goldenberg, 266 Ill.App.3d 174 (2nd 1994)