Illinois has several things in place to help people with brain injuries including common law negligence standards, personal injury statutes, and jury instructions.
What Cause Of Action Should I Pursue If I Sustain A Brain Injury?
Most likely, the laws that govern the accident that gave you your brain injury will be those of negligence. Negligence lawsuits attempt to show that the defendant acted unreasonably or did less than what a reasonable person would have done in the circumstances. Therefore, this is a very fact-intensive analysis. A reasonable standard for driving cars is completely different for that of performing surgery. Rosenfeld Injury Lawyers can marshal many different facts, customs, laws and other variables to establish a standard at trial. Here is the definition of negligence according to Illinois law:
“The failure to do something which a reasonably careful person would do, or the doing of something which a reasonably careful person would not, under circumstances similar to those shown by the evidence.”
Illinois Pattern Jury Instructions 10.01
What Elements Make Up An Illinois Negligence Claim?
Of course, this is a question for the jury. However, in arriving at that decision, the plaintiff must prove to them that the defendant breached a duty and that breach caused injury to the claimant. Here are the elements spelled out:
“First, that the defendant acted or failed to act in one of the ways claimed by the plaintiff as stated to you in these instructions and that in so acting, or failing to act, the defendant was negligent; Second, that [the plaintiff was injured] [and] [the plaintiff's property was damaged]; Third, that the negligence of the defendant was a proximate cause of [the injury to the plaintiff] [and] [the damage to the plaintiff's property].”
Illinois Pattern Jury Instructions 21.02
What Is The Standard For Illinois Negligence Cases?
The standard for this question is a preponderance of the evidence. This means that if the jury thinks it was more likely than not the defendant was negligent, then they should find for the plaintiff. Common examples of negligent behavior that might lead to a brain injury include: drinking and driving, mishandling construction equipment, motorcycle collisions or improperly administering medical treatments.
Are There Other Suits I Could File For Brain Injury Claims?
Yes, if you suffer a brain injury in Illinois because of another person’s misconduct, then you could use a variety of other kinds of suits besides negligence. We only highlight negligence because it is the most common breed of litigation for these injuries. But here are some others:
Medical malpractice actions are typically brought when a healthcare provider harms a patient. Illinois sets forth the laws related to medical malpractice in 735 ILCS 5 and gives the basic definition for a medical malpractice suit in 735 ILCS 5/2-622(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...”
There are basic elements in any Illinois medical malpractice action, including those for brain injuries. You must allege that 1) the healthcare provider owed you a specific medical duty 2) the healthcare provider breached that duty 3) you suffered damages and 4) the healthcare provider’s breach caused those damages. Of course, there are many other things you must do in a medical malpractice case (such as getting a physician’s certificate of merit) but these are the basic elements that will let you win at trial.
Plaintiffs bring products liability cases when they are injured while using a product they purchased. Illinois defines these causes of actions in 735 ILCS 5/13-213(3):
“’Product liability action’ means any action based on any theory or doctrine brought against the seller of a product on account of personal injury, (including illness, disease, disability and death) or property, economic or other damage allegedly caused by or resulting from the manufacture, construction, preparation, assembly, installation, testing, makeup, characteristics, functions, design, formula, plan, recommendation, specification, prescription, advertising, sale, marketing, packaging, labeling, repair, maintenance or disposal of, or warning or instruction regarding any product. This definition excludes actions brought by State or federal regulatory agencies pursuant to statute.
These lawsuits have basic elements as well. They include the following: 1) you were reasonably using the product 2) it had a defect 3) you were injured while using it and 4) the defect caused your injuries. To understand the exceptions and intricacies law, and to learn how they’ll impact your brain injury case, consult a qualified personal injury attorney in Illinois.
Want To Know More About Illinois Laws Regarding Brain Injuries?
Rosenfeld Injury Lawyers has assisted many victims of personal injuries get the recovery they need to move on after an accident. We can help you too. You’ll probably have many questions about how the laws and cases in Illinois affect your ability to recover for a brain injury. We can answer all of them and get the ball rolling on your case. All you have to do is call Rosenfeld Injury Lawyers today and we can take care of the rest!
If you would like to know more about brain injuries in Illinois, please read the following pages: