Your Chicago Medical Malpractice Lawsuit: The Basics
Created by FindLaw's team of legal writers and editors | Last reviewed May 25, 2017
The doctors at Jackson Park Hospital were so nice to your grandfather before and after the surgery, but her two-week check-up revealed that their kindness was not matched by their competence. Apparently, someone left a rubber glove inside his body during the surgery, and that glove caused a bacterial infection. Now, grandpa requires more surgery and physical therapy, not to mention all the stress and pain that goes with it. Now you want to stand up for your rights, but the Illinois legal system is daunting, to say the least. To help prepare you for what lies ahead, FindLaw has created this guide to your Chicago medical malpractice lawsuit.
Medical malpractice occurs when a doctor, other healthcare professional or institution breaches the standard of care when treating a patient, and this breach results in an injury or death. The standard of care is the generally accepted set of standards and practices that other medical professionals would take when treating a similar patient. Illinois courts give "treatment" an extremely broad reading, and can include misdiagnosis, incorrect prescription, or even unreasonably delaying treatment.
Proving medical negligence can be tricky, but is often the hinge on which your entire case turns on. First, you must demonstrate the expected standard of care that health care professionals are required to provide under the circumstances. Then you must point out exactly how the treatment you received fell below this standard of care. Since juries are typically ignorant of medical procedures you should consider enlisting the aid of an expert witness in the applicable medical field.
Knifing someone in Englewood could result in a battery lawsuit, but surgeons regularly slice people up with no consequences. What gives? Turns out you can inflict harmful contact on someone so long as they consent. Health care professionals must obtain informed consent from their patients before they may perform a treatment. Informed consent must meet three requirements:
- disclose to the patient all the risks, benefits and alternatives of the treatment;
- the patient must understand the disclosure; and
- the patient must sign a voluntary (non-coerced) waiver or "release."
You can sue both the health care professional who injured you or the hospital where he or she is employed under the doctrine of "respondeat superior," which provides that an employer is responsible for the negligent action of an employee acting within the scope of his or her employment.
A hospital can also be sued independently under the "corporate negligence" doctrine. For example, the hospital may fail to maintain sanitary conditions, fail to screen employees for proper credentials, or improperly discharge a patient.
You may also have a products liability lawsuit against the pharmaceutical company that created a medicine with unreasonably dangerous side effects that you were not made aware of, or against the company that designed or manufactured a defective medical device.
An action for personal injury or death against a physician, dentist, nurse, or hospital must be filed within two years from the date the claimant knew or reasonably should have known of the injury. In no event may a claimant bring an action more than four years after the date on which the alleged malpractice occurred.
However, if the claimant was under the age of eighteen when the malpractice occurred, the limitation period is eight years from the date of the alleged act or omission, except that in no event may such an action be filed after the minor claimant's 22nd birthday. If the claimant is mentally incompetent, the period of limitations does not begin to run until the disability is removed.
Starting Your Lawsuit
All you need to start your lawsuit is a complaint, which is a brief summary of the alleged malpractice, your injuries, the names of the defendants and a request for compensation.
You can file your lawsuit in the nearest Illinois Circuit Courthouse, which will cost $337 if the amount you seek is more than $15,000 or $247 if the amount is less (as of 2011). Once it is filed, hire a professional process server to deliver copies of your complaint to every defendant. This service typically costs $75 for each delivery.
Avoid making crucial mistakes at the beginning of your lawsuit by scheduling a free consultation with an experienced medical malpractice attorney. Most personal injury lawyers work on a contingency fee basis, which means they are paid a portion of your recovery. Yes, they won't get paid until you win the case.
In Illinois, an attorney's contingent fee in a medical malpractice case is limited to 33.3% of the first $150,000 recovered, 25% of the next $850,000 recovered, and 20% of any amount over $1,000,000.
You can recover for both the quantifiable financial burdens associated with the injury, and the subjective physical and emotional toll you've endured. The financial costs are called economic damages, and include medical bills or loss of income from inability to work. There is no upper limit to the amount of economic damages you may recover.
The subjective damages are designed to compensate you for the "pain and suffering" you've borne due to the malpractice. These non-economic damages include compensation for your pain and suffering, lost enjoyment, anxiety, disfigurement, and other effects of the defendant's medical negligence.
Illinois is rare amongst states because there is no upper limit to the amount of non-economic damages you may recover in your medical malpractice lawsuit. Illinois has twice adopted tort reform legislation that included caps on non-economic damages for medical malpractice claims, but both acts were deemed unconstitutional (the latest in 2010) so neither remains in force.
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