|
Medical Malpractice
Between 44,000 and 98,000 Americans die in hospitals each year due to preventable medical errors. According to a recent study from the National Academy Institute of Medicine, each year more people die from medical errors than from motor vehicle accidents (43,458), breast cancer (42,297) or AIDS (16,516). Total national costs (lost income, lost household production, disability and healthcare costs) for medical errors are estimated to be between $17 billion and $29 billion per year. The emotional and personal toll that medical malpractice takes upon a family is immeasurable.
Dwyer & McDevitt, Ltd. is prepared to evaluate your potential medical malpractice case. This typically involves a review of the medical records associated with the medical care as well as the involvement of an expert witness to determine whether malpractice occurred. We are extremely selective in the medical malpractice cases that we agree to handle. Medical malpractice cases are complex, expensive and require countless hours of investigation. The claims must be supported by expert testimony. Despite what is portrayed in the media, medical malpractice cases are difficult to win on behalf of plaintiffs. One recent study of jury verdicts in medical malpractice cases found that 23% of patients win their cases before juries. For these reasons our office carefully screens and selects those medical malpractice cases that we believe are compelling and likely to succeed. The medical malpractice cases our office accepts are limited to those involving death or catastrophic injury. For those cases that merit litigation, our office has the experience and resources necessary to successfully prosecute your claim.
Answers to some frequently asked questions are provided below. If you believe you have been victim of medical negligence, please contact our office today for a free case evaluation.
What is medical malpractice?
Medical malpractice is the negligence of a doctor or other healthcare professional which causes injury or death.
The plaintiff in a medical malpractice case bears the burden of proving that the care rendered by a doctor or other healthcare professional failed to meet the applicable "standard of care". The "standard of care" represents the knowledge, skill and ability that an ordinarily careful professional would exercise under the circumstances. The plaintiff must also demonstrate that the failure of the healthcare professional was a cause of the damage suffered.
What is the statute of limitations for a medical malpractice claim?
Any action for personal injury or death against a physician or hospital must be filed within two years from the date the claimant knew or reasonably should have known of the injury. In no instance may a claimant bring an action more than four years after the date on which the alleged act or omission occurred.
If the claimant was under the age of 18 at the time of the alleged negligence the statute of limitations is tolled. A claim may be brought for injuries suffered by a minor within two years of their 18th birthday or within two years of the date on which the claimant knew or should have known of the alleged negligent act. 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.
Wrongful death actions are governed by a two year statute of limitations that begins to run on the date of death. Wrongful death actions may be maintained only if, on the date of death, the decedent could still have commenced a malpractice action for the injury that caused the death.
How is medical malpractice litigation different than other personal injury cases?
In any medical malpractice case, the plaintiff's attorney must attach to the complaint an affidavit stating that (a) he has consulted with an expert who has practiced or taught within the last six years in the same area of medicine that is at issue; (b) the expert is qualified by experience or demonstrated competence in the subject of the case; and (c) the expert has determined in a written report, after review of the medical record and other relevant material, that there is a reasonable and meritorious cause for the filing of such action. A copy of the report must be attached, although the identity of the expert may be withheld.
The requirement that an affidavit and medical report must be filed with the complaint was first instituted in Illinois in 1986 to reduce frivolous lawsuits. This legislation requires an expert be involved in the review of records and any other materials before the litigation commences and any discovery may be taken. Although this results in more significant litigation costs initially, it provides insight into whether the plaintiff's case is meritorious.
How is the Attorneys fee calculated in a medical malpractice case in Illinois?
An attorney's contingent fee in a medical malpractice case is regulated by Illinois statute. The attorney fee in a medical malpractice case is structured as follows:
(a) 33 1/3% of the first $150,000.00 recovered;
(b) 25% of the next $850,000.00 recovered; and
(c) 20% of any amount over $1,000,000.00.
If the claimant's attorney performs extraordinary services involving more than the usual time and effort, the attorney may petition the court for additional compensation.
What expenses are associated with medical malpractice litigation?
The cost of litigation in addition to the contingent attorney fee must also be considered when evaluating a medical negligence claim. Significant litigation costs are typically involved in the prosecution of a medical malpractice case. Such costs include the charge for filing a lawsuit, serving the defendants with a copy of the lawsuit and summons, deposition transcripts, involvement of medical experts and travel for discovery purposes. It is not unusual for the costs advanced in a straightforward medical malpractice case against one physician to exceed $50,000.00 to $100,000.00.
What if the plaintiff was also negligent?
What if the plaintiff failed to follow a doctor's advice or otherwise did something that contributed to his injury or death? Under Illinois law, a claimant's action is barred if his comparative fault is found to be more than 50% of the cause of the injury or damage for which recovery is sought. If the amount of comparative fault is found to be less than 50%, the claimant's recovery is diminished in proportion to the percentage of fault. For example, if a jury awards $100,000.00 but finds that the plaintiff is 25% comparatively negligent, the jury award is reduced to $75,000.00.
What elements of damage may be recovered in a medical malpractice case?
Many of the same elements of damage that apply in other negligence cases apply in a medical malpractice case. In the case of someone's death, the next of kin can recover for the money, goods, services, love, comfort and companionship the decedent provided. Damages for pain and suffering, disability, loss of wages and the cost of additional medical care required are recoverable for injuries suffered. Whether such elements of damage apply in a specific medical malpractice case depends upon an assessment of the particular circumstances at issue.
Can a hospital be held liable for a doctor's negligence?
Under certain circumstances, a hospital may be liable for the conduct of doctors, nurses or other healthcare professionals that staff the hospital. If the hospital employs the physician, nurse or other healthcare provider, the hospital may be liable for their conduct. Whether the hospital is liable depends upon a careful review of the circumstances surrounding the employment status of the physician. Additional factors including method of payment, facilities provided, perception of the public and nature of the medical care rendered must also be assessed.
In addition to potential liability for the conduct of employees, hospitals may also be liable for the acts of non-employees under certain circumstances. For example, the hospital may be liable for granting privileges to an unqualified physician. A hospital may also be liable for inappropriately staffing the facility or failing to appropriately determine the professional competence of a physician before granting staff privileges. A hospital has a duty to make continuing assessments of its physicians' competence and the failure to do so may constitute negligence.
What about the medical malpractice "crisis"?
The subject of medical malpractice reform and "crisis" have received a great deal of media attention as of late. The past few years have seen a sharp increase in premiums for medical malpractice liability insurance, a product which hospitals require of their doctors to grant staff privileges. A Congressional Budget Office Report dated January 8, 2004 attributed an increase in insurance premiums to the growth in malpractice awards and reduced income from insurance company investments and short term factors in the insurance market.
A recent Chicago Tribune article cited anecdotal evidence that many doctors are leaving the practice of medicine in the State of Illinois because of their malpractice premiums. The General Accounting Office investigated this issue in five states with reported access problems and found reduced access to emergency surgery and newborn delivery "in scattered, often rural, areas where providers identified other longstanding factors that affect the availability of services." The GAO report concluded that many reported reductions in supply by healthcare providers "could not be substantiated" or "did not widely affect access to healthcare." |
Free Case Evaluation
Our law firm has helped many recover compensation for their injuries. Contact us today for a free case evaluation
|
|
|
