People often ask me, “Can I sue my doctor?” The answer, as with most legal matters, is that “it depends.”
Medical malpractice is a particularly nuanced and specific area of personal injury law.
The biggest difference between a “normal” personal injury case and a medical malpractice case is that you cannot just file a lawsuit without some additional investigation and effort. Medical malpractice lawsuits must be filed with, or accompanied within 90 days of filing, a physician’s affidavit. Governed by the Illinois Code of Civil Procedure Section 735 ILCS 5/2-622, this requires that a physician state that he or she has reviewed all of the relevant medical documentation, and that, in his or her opinion, the normal standard of care that should have been followed in this type of treatment, was not followed in this case.
All that does is allow your case to be filed and survive a motion to dismiss. Failure to either file the case with a 2-622 affidavit, or file an affidavit within 90 days (and the filing of the lawsuit accompanied by an attorney’s affidavit stating the 622 is forthcoming), will result in dismissal of the lawsuit. This is a vary narrow exception, usually used only in cases where the time limit for filing the case is expiring, and does not allow the physician expert sufficient time to both obtain and review the medical records.
As with most personal injury cases, most medical malpractice cases must be filed within two (2) years of the date on which the alleged malpractice occurred.
There are limited exceptions that may “toll,” or extend the statute of limitations (SOL). In cases where the malpractice was not discovered until after the two years has run, the injured party may have up to four (4) years from date of the alleged malpractice to file the lawsuit.
There are also extensions if the malpractice occurred if the person harmed was either under the age of 18 (majority), or was under a physical or mental disability (a coma, mental incapacity). These are rarely applicable. In the case of a minor, that person has two (2) years after he or she turns 20. For the person who is incapacitated, he or she has two (2) years from the date the incapacity is over.
The key thing to remember is that if you think malpractice may have occurred, you should contact a lawyer immediately. It takes quite a number of months to obtain all the medical records and have the medical expert doctor review them.
Much like most personal injury cases, medical malpractice cases follow a similar format. In medical malpractice cases, the 2-622 affidavit (or an attorney’s affidavit) must accompany the lawsuit.
A lawsuit is filed, that lawsuit is served upon the defendants (the medical providers) by the Sheriff. Each defendant has the option of either filing a motion to dismiss the case or answering the complaint.
Once all the parties are “at issue,” the discovery process begins with written questions answered by all parties. When those are completed, depositions begin. These begin with the parties injured, then move to the doctors and hospital personnel being sued. Next, it moves toward any experts retained by either party. Typically, the costs of retained experts is the majority of costs expended by the plaintiff in a medical malpractice case, as there may be multiple experts retained by parties.
Experts make medical malpractice cases outrageously expensive. Many malpractice matters can cost a plaintiff’s attorney upwards of $200,000 in advanced costs.
Did I mention the high cost of pursuing these? Keep in mind that the lawyer can only “advance” the costs; he or she cannot loan money to the client, so the client may be ultimately responsible for costs. Many attorneys waive this provision, understanding that many clients are not able to pay these large sums.
In addition to the sheer cost, medical malpractice cases require specialized expertise. Many of us think we understand the basics of a car crash, “whiplash,” and “pain and suffering,” so personal injury cases seem relatable. Nothing could be further from the truth, as my prior blog “An Injury Lawyer Means More Money in Your Pocket” addressed.
In medical malpractice, you are dealing with extremely arcane and detailed medical procedures, written hospital policies and procedures, thick tomes on medical expertise, and literally thousands of pages of medical records and depositions.
Finally, medical malpractice cases almost never settle. That means that unless you are capable of trying a complex matter before a jury, you have zero chance of recovery handling it without a lawyer. And not just any lawyer; only a lawyer who regularly tries medical malpractice cases can succeed against such steep odds. There are many things smart people can do themselves, but handling a medical malpractice case is not one of them!
If you've been in an accident and have questions, contact Chicago personal injury attorney Stephen L. Hoffman for a free consultation at (773) 944-9737. Stephen has nearly 30 years of legal experience and has collected millions of dollars for his clients. He has been named a SuperLawyer, has a 10.0 rating on Avvo, and is BBB A+ accredited.
Stephen handles personal injury and workers' compensation claims on a contingency fee basis, which means you don’t pay anything upfront and he only gets paid if you do. Don’t wait another day, contact Stephen now.