Medical malpractice cases typically arise when a patient is injured due to the conduct of a doctor or other medical professional. Medical malpractice can arise in a variety of contexts, including regular check-ups, surgeries and birth deliveries. While common law principles of negligence often guide the formation of a medical malpractice claim, states like Illinois also have developed their own relevant case law. Those injured by the medical malpractice of a healthcare professional should understand:
- Basic principles of negligence law in Illinois
- The interpretation of a medical professional’s “duty of care” under Illinois law
- The Illinois statute of limitations for medical malpractice claims
- Evidentiary standards for expert witnesses consulted during trial
- Caps on medical malpractice damages
- Apportionment of damages under modified comparative negligence principles
- Laws governing punitive damages
- Joint and several liability
- Periodic payment plans
- Collateral Source Rule
- Tort immunity for government entities
Proving Medical Malpractice in Illinois
Medical malpractice refers to a type of negligence claim filed by an injured victim. Some examples of medical malpractice are:
- Misdiagnosis of an illness
- Failure to provide follow-up care after a surgery
- Failure to provide the correct medication
- Unreasonable delay in diagnosing an illness, such as cancer
When a medical professional has failed to provide care in accordance with the applicable legal standard of care, he or she may have been negligent. To prove that a medical professional has engaged in medical malpractice, a plaintiff must show:
- The medical professional or healthcare facility owed a duty to the plaintiff
- The surgeon, doctor, nurse, staff assistant or hospital administrator breached that duty
- The breach served as a legal and direct cause of the plaintiff’s injuries
- The plaintiff suffered actual injuries
Illinois Statute of Limitations for Medical Malpractice Actions
The statute of limitations sets a limit for the amount of time that a plaintiff may file a claim. For cases involving medical malpractice, a patient only has 2 years to file a claim from the date he knew or should have known of the injury. 735 ILCS 5/13-212(a).
In no event may a patient may assert a medical malpractice claim more than 4 years from the date in which the medical malpractice occurred. Id.
For individuals under 18 years old, Illinois carves out a special exception that allows for the filing of a medical malpractice claim for up to 8 years from the date of the medical malpractice occurrence. The lawsuit must be filed before the individual turns 22. Id.
In the event that a victim has not discovered his or her injuries due to fraudulent concealment of medical malpractice, the victim has 5 years from the date of discovery to file a claim.
Illinois’ Definition of “Duty” In Medical Negligence Cases
In Illinois, the plaintiff must prove that a medical professional owed a duty to him or her. Illinois law maintains that a doctor must use the “knowledge, skill, and care ordinarily used by a reasonably careful” doctor in the community. This standard also applies to nurses, therapists, healthcare providers, dentists and other professionals. If a doctor fails to diagnose an illness that a reasonable doctor in the same locality would likely diagnose, then this would be an example of “professional negligence.” The determination of whether a doctor breached his or her duty of care is a question of fact for the jury to decide.
Hospitals and healthcare entities also owe a duty to patients. They owe patients a “duty of protection and must exercise reasonable care toward him as his known condition requires.” Slater v. Missionary Sisters of the Sacred Heart, 20 Ill.App.3d 464, 314 N.E.2d 715 (1st Dist.1974). In addition, a hospital must use reasonable conduct in treating a patient. The hospital also has a duty to review and supervise the treatment that a patient receives.
Illinois law maintains that the duty owed by a defendant may be defined by hospital by-laws, expert testimony, customs, accreditation standards, legal statutes and community practice. Some of these standards may be defined by government agencies like the Illinois Department of Human Services, Illinois Department of Professional Regulation and Illinois Administrative Code: Public Health.
A doctor may also hold a duty to disclose certain information to patients. A doctor may hold a duty to disclose the risks associated with a course of action, the results of a test and alternative treatment options.
Expert Reports in Illinois Medical Malpractice Cases
A key part of medical malpractice cases typically involves testimony offered by other doctors, psychologists and nurses in the community. These medical professionals may testify in order to establish the customary medical treatment and standards used in community hospitals. In Illinois, an expert may only testify if he or she is licensed in the same medical specialties as the defendant. Also, an expert must have dedicated at least 75 percent of his or her time to the treatment, teaching and research related to the treatment at issue.
According to 735 ILCS 5/2-622, the plaintiff’s attorney must also attach an affidavit to a complaint that states expert testimony will be offered at trial in a medical malpractice case. The affidavit must be attached to the complaint within 90 days of the filing of the complaint. The affidavit must also state that the expert has at least six years of teaching or experience in the same area of medicine at issue in the case, the expert has shown competency in the medicine area at issue, and that the expert has determined in a written report that a reasonable and meritorious claim exists for filing the complaint. The plaintiff’s attorney may withhold the identity of the expert.
Medical Malpractice Damages Cap
Illinois does not cap the amount of compensatory damages a victim of medical malpractice may receive. Compensatory damages include lost wages, medical expenses and other forms of economic loss. Victims may not receive punitive damages in medical malpractice cases. Punitive damages refer to funds awarded to punish a defendant for willful or grossly negligent behavior. In 2005, the Illinois legislature implemented a $500,000 cap on non-economic damages. Non-economic damages refer to intangible concepts, such as pain and suffering or loss of consortium. Several judges have overruled the cap as unconstitutional, so the rule remains in controversy.
Collateral Source Rule
The Illinois modified collateral source rule only applies to medical malpractice cases. The defendant may apply for reduction in the award within 30 days of amount. This rule comes into play when an insurance company or hospital is also liable for the damages of a plaintiff. Within 30 days, a defendant must apply for reduction under the rule. The rule has the effect of reducing the award by 50 percent of the lost wages or disability income paid to the plaintiff by another person, hospital or insurance company. The judgment may not be reduced by more than 50 percent. In addition, an award may be increased by additional premiums or insurance costs that a claimant must pay.
A hospital may be vicariously liable for the negligent acts of the doctors it hires on an independent contractual basis. If a patient believed the doctor was serving as the agent of the hospital, then the hospital may be liable. Principles of agency law become relevant in assessing situations in which a hospital may be vicariously liable for the torts of its employees.
Learn More About Medical Malpractice Laws in Illinois
If you are interested in learning more about medical malpractice laws in Illinois, you should speak with a medical malpractice attorney. An Illinois medical malpractice attorney will be familiar with recent developments in precedent and the application of Illinois medical malpractice laws in your case.