Medical Malpractice

Lots of people think they understand how medical malpractice works, but, based on my conversations with most people, it is clear this is an area of law in which many people need a refresher course.

What is Medical Malpractice?

In the most basic sense, medical malpractice is when a doctor, medical facility, or other health care professional either does something that is wrong, or fails to do something right, acting differently than a normally careful and competent practitioner would have in those circumstances. As a result of this breach of the practitioner’s duty of care, the patient is harmed and suffers damages.

If you have ever had a medical procedure, you were undoubtedly asked numerous times about what you were there for, which body part the medical team was supposed to be working on, and you may have even had your body part labeled by the doctor. My wife’s ankle was signed by her doctor so the team was crystal clear about which of her ankles they were to operate on that day. When I had my shoulder surgery, I was asked by multiple people to confirm which one was going under the knife .

Believe it or not, this was not always standard procedure. There are, sadly, cases where a surgeon removes the wrong body part, operates on the wrong body part, or otherwise makes a huge mistake, sometimes with disastrous consequences.

Another example of medical malpractice would be failing to notice that a woman who is nine months pregnant has dangerously high blood pressure—preeclampsia—and failing to take the accepted route of performing a Caesarean promptly.

Sometimes medical mistakes are as simple as failing to notice things, like patient complaints, bed sores, fevers, infections, and the like.

Harm is Required

However, there is no viable medical malpractice case if you “could’ve died” or “that might have been a disaster.” If your dentist puts in the wrong size implant, and your bone becomes infected, that’s a medical malpractice case. What if she does, you complain, and she takes out the wrong size implant and installs the correct sized one and you are out of pain and have no complications? It stinks that you had to go through a second procedure, but there is no serious and permanent harm, so you have no viable case.

Notice I said viable. Medical malpractice cases are expensive. Very expensive, often running the attorney handling them well into the six figures, in addition to many years of work to get to trial. They almost never settle, so you need to plan on a trial to resolve things.

If the patient’s harm, damages, or injuries are not significant or permanent, it may be a case of medical negligence, but there is not a realistic case, as the costs might outweigh the possible recovery. Spending $150,000 to receive an award of $25,000 clearly makes no sense to anyone.

Affidavit Needed Just to Begin

In order to file a lawsuit complaining of medical negligence or malpractice, you must accompany your complaint with a doctor’s 2-622 affidavit, or at least promise to get one on file very shortly after filing. Otherwise, the case will be dismissed.

How do you get this doctor’s affidavit, and what does it mean? You must have a doctor in that area of medicine (for a case of a back surgery gone bad, you probably need either an orthopaedic surgeon or a neuro surgeon) attest to having reviewed all of the medical records related to the incident, state that in his or her or their opinion that the normal standard of care was not followed, and that the harm or injuries complained of were caused by that failure or breach of medical protocol.

That just means your case won’t get dismissed immediately; it does not necessarily mean that you win. Victory might take years. And you might lose. Many medical malpractice trials go to jury only to receive an award for the defendant(s).

The Nuts and Bolts of the Case

Please don’t think of medical malpractice as just another type of lawsuit. It’s not the same as when you sue the guy who painted your front steps the wrong color in small claims court. Medical malpractice cases are very complicated.

First of all, there will be lots of expert testimony on both sides of the case. The plaintiff alleging the malpractice will have numerous experts. For example, in a case where it is alleged a team of doctors failed to diagnose a cancer in a patient, and, unfortunately, that patient died, you would first retain an expert for the affidavit.

Then, you’d require an oncologist in that area of cancer to opine about the normally expected diagnostic procedures, the standard signs to look for, and the like. If the doctor who missed the initial cancer was not an oncologist, you will need an expert of a similar type of doctor to testify about what a normally careful and competent doctor of that type should have done.

You may have several other experts, in areas from life care, long-term care, economics, and nursing protocols. Some cases involve dozens of experts on each side. Needless to say, the defense will retain their own experts to counter what the plaintiff’s experts are expected to testify to.

Each side will take depositions of each of the witnesses who will be testifying, from the plaintiff and her family, to the doctors involved, to any experts named. Often, depositions are transcribed and videotaped, adding to the costs and hours of trial preparation.

Getting to trial isn’t the finish line. Trials in these cases can take months. Yes, months. When I began my career, our office had referred a malpractice case to a well-known lawyer. He took the case, which involved a difficult birth, to trial. After a ten-week trial, there was a hung jury; the jury could not agree on a verdict.

So the attorney tried the case again, and it took another ten weeks. And this time, there was a verdict, but the verdict was not in the plaintiff’s favor. Not only did the plaintiff go home empty-handed, but the attorney received no fee even after all the time and resources he invested in the case. This is far more common than people realize.

Review and Screening

I do not litigate medical malpractice cases myself, but if someone contacts me with a claim that seems to have merit, I am always willing to listen to them, and, if appropriate, connect them with an attorney I would trust to handle such a case for me or my family. I work with some of the best medical malpractice lawyers in Illinois, and clients that I have referred to them over the years have had very good results.

A lawyer taking a call or email from a prospective client claiming medical malpractice has to understand the basics of medicine. Otherwise, there is no way to distinguish between a viable medical malpractice claim and an unfortunate outcome that wasn’t caused by malpractice.

I know the questions to ask. I know how time limits affect the viability of a malpractice case. If someone says “This happened to me when I was ten years old, and now I’m 18,” I know that there might be time to file a case, as the two year time limit on filing a case would not begin to run until the person reaches the age of majority—18.

If someone hasn’t seen the doctor who allegedly did something wrong to them for five years, and they were over 18 when the alleged malpractice occurred, I know it’s probably too late, no matter what legal gymnastics I perform.

But if I hear anything that sounds like a case, with legitimate injuries that cannot be fixed, I immediately get in touch with one of my trusted contacts. If I can’t achieve justice for a client myself, I want to make sure they work with someone who can.

Takeaways

Contact Chicago Personal Injury Lawyer Stephen Hoffman

If you have been injured, whether by an auto accident, bike or pedestrian crash, dog bite, work accident, or medical malpractice, seek medical attention immediately. Report accidents to the police and your own insurance company, or to your employer if you were injured at work. Then contact a lawyer with experience in your type of injury matter.

If you have 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 over 35 years of legal experience and gets results; he has collected millions of dollars for his satisfied clients. He is listed as a SuperLawyer, has a 10.0 rating on Avvo, and is BBB A+ accredited. Stephen is also an Executive Level Member of the Lincoln Square Ravenswood Chamber of Commerce.

Stephen handles injury cases on a contingency fee basis, which means you pay nothing up front, and Stephen only gets paid if you do. You have only a limited time to file a claim, so don’t wait another day; contact Stephen now to get started putting your life back together.