Illinois Medical Malpractice Law - 40 Things You Should Know

In my day to day job, I educate people about all areas of Illinois law and provide lawyer referrals.  With education in mind and having spoken to probably 20,000+ people who are looking for medical malpractice lawyers in Illinois, here are 40 things that I think you should know.  Nerdy lawyer caveat that you shouldn't take any of this as legal advice, every case is different and don't make any decisions without talking to a lawyer. If you want a free consultation you can call me any time at (312) 346-5320.

1.    There is a statute of limitations in every medical malpractice case.  In most cases it's two years, but depending on who the defendant is, it could be as little as one year from when it happened to up to eight years if it was a child injury.
2.    To win a malpractice lawsuit you need to show negligence along with a bad result that would not have otherwise occurred.
3.    In most cases, if you have negligence, but the harm suffered is minor, it's not worth pursuing.
4.    There is no chart outlining how much your case may be worth if you win or settle.  Every case is different.
5.    A bad result doesn't mean that there's a case. Many procedures are very risky.
6.    To bring a case you need to have a doctor in the same area of medicine certify in an affidavit that they believe malpractice occurred.
7.    There is no cap as to how much you might win in a case, but there are no punitive damages.
8.    Medical malpractice attorneys work on a contingency basis. Meaning they don’t get paid unless you win.  Under Illinois law, lawyer fees are capped at 1/3 of what is recovered.
9.    These cases are very expensive to bring.  In many cases the attorneys shell out over $100,000.00 in expenses for expert fees and other case costs.
10.    If you signed a consent form, you might still have a case.
11.    Medical malpractice can stem from everything from failure to diagnose a problem, failed or botched surgery, incorrect medication etc.
12.    Cook County is the most plaintiff friendly place in Illinois to file a case, but the success rate for cases that go to trial is only around 20%.
13.    Hiring an inexperienced attorney can ruin your chances of winning a case.  There are very few firms that have the ability to bankroll a case and the track record of winning.
14.    Birth injuries are some of the most devastating and serious cases that are brought with some of the highest damage amounts.
15.    In some small downstate counties there has never been a successful medical malpractice trial for a plaintiff.
16.    Medical malpractice is the third leading cause of death (Journal of the American Medical Association).
17.    Medical malpractice isn’t always known right away, sometimes the symptoms take time to appear.
18.    There must be a direct link between an alleged negligence and the injuries claimed to be from the negligence.
19.    The honest truth is that it's very hard to win a medical malpractice case for an eldery person, no matter how bad the care was as their life expectancy is so short that it limits damages.
20.    If you think you might have a case, document every appointment, conversation, procedure and test completed.
21.    Ordering your medical records as soon as you possibly can is a good idea.
22.    Almost no Illinois medical malpractice case resolves quickly. Insurance companies delay to see if there is any way of fighting the case.  Don't get frustrated.  It's a marathon not a sprint.
23.    That said, good lawyers are aggressive and will get cases resolved as quickly as possible without sacrificing value from a case.  In other words, you'd rather a case take four years and be worth $10 million than take 18 months and settle for $2 million.
24.    It's not unusual for a medical malpractice trial to last for 2-3 weeks.
25.    In Illinois, a medical malpractice case is usually filed in the county the malpractice occurred in.
26.    Many law firms have doctors and/or nurses on staff to perform initial reviews of the cases.
27.    While there is no law against it, most law firms that handle these cases aren't one man shops.  The firms we recommend have multiple lawyers and experienced staffs.
28.    Illinois doctors are not required to carry malpractice insurance, but most do.
29.    Doctors don’t like to talk poorly about other doctors so often an expert is sought from out of state.
30.    Most infection cases are a risk of having a medical procedure.
31.    What is considered “standard of care” can shift depending on location.
32.    On average it takes a lawyer 3-6 months to investigate a case from the time you first call them.  At that time they will decide to file a lawsuit or not go further.
33.    The plaintiff, or person filing the case has the burden of proof. It is their responsibility to prove the doctor/nurse/hospital, etc was negligent.
34.    Medical malpractice lawyers also handle personal injury cases, but most personal injury lawyers don't handle medical malpractice cases.
35.    There is not a published list of how many times your doctor has been sued or settled a case.
36.    Veterans Administration hospitals can be held liable for medical malpractice under the Federal Tort Claims Act.  The rules and procedures are much different.
37.    While young (less than five years experience) attorneys will assist on a case, your best chance of a good result is a very experienced attorney taking the lead at trial.
38.    A  good lawyer will spend 1,000+ hours or more working on a case. Again this is a marathon, not a sprint.
39.    One of the reasons these cases can take so long is often you are suing a doctor, a nurse, a hospital, another doctor, another nurse and maybe a rehab facility.  Each person would have their own lawyer and would need to be at each deposition.  To coordinate that many attorneys can be difficult so often a deposition will be scheduled for many months down the road.
40.    Your trial award can be reduced by your percentage of fault (e.g. if you ignored doctor's instructions). If you are found to be more than 50% at fault you will get nothing.

If you have any questions about Illinois medical malpractice law, please do not hesitate to contact us for a free consultation.

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