(Mal) Practicing Medicine

a conceptual image of medical malpractice represented with surgical scissors left inside a patient after the surgery

Many people have a bad result from a medical procedure and immediately assume they have a medical malpractice case.

However, not every unfortunate result is malpractice. There are even many instances when there is malpractice but there is not a realistically viable case to be pursued. For instance, a doctor might order a medication for one patient that is intended for another, but the patient who receives the medication is not harmed by it. The doctor certainly made a serious error that a reasonable doctor would not have made, but without injury or damages, there is no case.

Standard Procedure

The beginning point for any analysis of a potential medical or dental malpractice case is to review what the reasonable standard of care is for that particular type of medicine and procedure. For example, if you go in to have your right knee operated on and the doctor and hospital never confirms with you which knee it is that is the problem and mistakenly operates on the left knee, you have a fairly obvious screw-up.

There exist specific and accepted standards of care for certain procedures. There are also some known risks of certain procedures. If you undergo back surgery, there is a very real chance you could experience a poor result or even paralysis. As with nearly any medical procedure, infection is also an assumed risk in most cases.

As I will discuss below, the best way to determine the standard and whether it was breached is a review of the medical records by a medical expert.

Make a Record of It

Every medical malpractice or dental malpractice case begins with the review of all of the patient's medical records by a medical expert in the area of medicine involved. In complex cases, multiple fields of medicine may be involved.

Either the patient/client has his or her entire chart available for the lawyer to have reviewed by an expert or the lawyer obtains these records with the client’s consent.

In order to have a case that can be filed in court without being dismissed, a medical expert must sign a Section 622 affidavit. This comes from the Illinois Code of Civil Procedure Section 735 ILCS 5/2-622, which requires that the affidavit state that the applicable standard of care was not followed, and that as a result, the patient/plaintiff suffered some harm.

While a lawsuit can, in limited situations, be filed without a 622 affidavit attached initially, the law is clear that this must be remedied quickly—within 90 days of filing.

This allows the case to be filed and not dismissed on its face. It does not necessarily mean that the case is a winner. Much more is required to get the case all the way through the court system.

My Expert Opinion

Medical malpractice is a battle of costly experts once a case is filed in court. It is not uncommon for the plaintiff to retain multiple experts for their testimony in the case. Similarly, the defense will often retain multiple experts. Since most medical malpractice cases involve multiple defendants (the hospital or facility, all doctors who had anything to do with the procedure, and any nurses or other personnel involved), this can often mean dozens of experts.

This is the main reason malpractice cases are so costly. If you do the math and understand that the cost to have just one expert review several thousand pages of medical records, testify about those records at least twice (deposition and trial) will be multiplied by that many hours and their hourly rate, you will understand how cases can run well in excess of six figures in costs for each side.

Yes, you read that correctly. If you are a plaintiff bringing a medical malpractice action, it is realistic that your attorney may pay as much as $200,000 or $300,000 to bring your case from inception through trial.

The good news is that every malpractice case is handled via contingency fees, limited to one-third of the gross settlement or verdict, and the lawyers typically recover costs only in the event of a settlement or verdict in the plaintiff’s favor.

This is also a major reason not every case is viable. You would never spend $100,000 on a case with minor damages that might be worth $25,000. There are also some horrific results that simply cannot be proven to be malpractice ascribed to a particular practitioner (such as where multiple doctors were involved, or where the patient had other health issues that could have caused problems).

In fact, comorbidities (diabetes, obesity, high blood pressure) can be a problem in many cases, as the defense will lean heavily on these factors as a significant cause of the problems claimed.

Time is On My Side—Or Not

The general requirement is that all malpractice cases must be filed within two years of the alleged malpractice event. There are some limited exceptions.

The statute of limitations (the rule requiring it to be filed within two years) can be tolled (suspended) in some cases, such as being below the age of majority, disability, or the like. An example would be a 16-year-old who undergoes a knee surgery that leads to complications and severe and permanent damage that leaves her with a permanent disability. In that case, the minor plaintiff would have until two years following her 18th birthday (age of majority) to file the lawsuit.

One other example of a tolling of the statute of limitations would be a person in a coma, clearly under a medical disability rendering them unable to function. Let’s say a person undergoes a procedure, winds up in a coma, and awakens from that coma three years following the procedure. In that case, they would have up to four years total following the procedure in which to file the suit.

As in all cases, but especially with malpractice, filing as early as possible and naming all possible parties as defendants is very important. Once the statute of limitations has passed, it doesn’t matter how strong your claim; you cannot file a case.


  • Medical malpractice requires expert analysis to determine if there is a case
  • Medical malpractice requires damages that are significant to justify the extreme costs
  • Special rules apply to medical malpractice cases that do not exist for other personal injury cases

Contact Chicago Personal Injury Lawyer Stephen Hoffman

As in all cases involving injury and potential liability, if you have been hit by a vehicle, immediately get medical treatment, report the crash to police and your own insurance company, and contact a lawyer with expertise in your type of case, such as bicycle accidents or pedestrians hit by cars.

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 overly 30 years of legal experience and has collected millions of dollars for his clients. He is listed as a SuperLawyer, has a 10.0 rating on Avvo, and is BBB A+ accredited. He is also an Executive Level Member of the Lincoln Square Ravenswood Chamber of Commerce.

Stephen handles personal injury claims on a contingency fee basis, which means you don’t pay anything up front, and he only gets paid if you do. Don’t wait another day; contact Stephen now.

Categories: Medical Malpractice