Illinois Medical Malpractice Law
Medical malpractice is a negligence claim related to medical care. As with any negligence claim, to win his case a plaintiff needs to prove that the defendant owed a duty to the plaintiff, the defendant breached that duty, the plaintiff suffered damages, and the breach of defendant's duty caused the damages. In Illinois, most of the rules and procedures for litigating a medical malpractice claim are the same as for any negligence suit but there are some specific requirements that medical malpractice litigants must fulfill.
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Expert Affidavit
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According to the Illinois civil procedure rules enumerated in the Illinois Compiled Statutes, plaintiffs suing for damages related to medical or "healing art" care must file with their petition a written affidavit or report from an expert. The expert signing the affidavit must have practiced or taught in the same area of medicine as the defendant for at least five years. For example, a dentist regarding a dentist defendant must be "knowledgeable in the relevant issues involved" and attest to having reviewed the medical record and other pertinent documents and believes there is "a reasonable and meritorious cause for filing" the lawsuit. An expert affidavit must be filed for each defendant in the case and if for some reason it is not possible to file the affidavit with the petition, the plaintiff generally has 90 days to file it.
Res Ipsa Loquitor
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"Res Ipsa Loquitor" is a Latin term that translates to "The thing speaks for itself." According to Illinois law, to make a medical claim based on the res ipsa loquitor doctrine, a plaintiff must demonstrate "proof of an unusual, unexpected or untoward medical result which ordinarily does not occur in the absence of negligence." An extreme example of this would be a plaintiff who goes into the operating room to have carpal tunnel surgery but comes out with an amputated leg. If a plaintiff is relying on this doctrine in his suit, the expert affidavit filed with the petition must delineate this.
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Medical Studies Act
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Hospitals and other medical facilities often go through extensive processes to approve doctors to practice in their facilities. Additionally, to ensure quality care, medical facilities often have internal procedures for evaluation of healthcare professionals' work practices. Both processes involve obtaining evaluations and recommendations from other health care professionals. Therefore, prohibiting disclosure of this information in lawsuits may help encourage individuals to participate. Specifically the Medical Studies Act prohibits disclosure of "all information, interviews, reports, statements, memoranda, recommendations, letters of reference or other third-party confidential assessments of a health care practitioner's professional competence" in any court, board or other similar entity.
Damages
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Damages that may be recovered in medical malpractice claims in Illinois include such economic damages as medical charges or funeral expenses, and such non-economic damages as pain and suffering that occurred in the past or which are likely to occur in the future. Punitive damages or damages designed to punish a defendant are not allowed in Illinois medical malpractice cases. The Illinois General Assembly has approved laws setting a maximum amount that plaintiffs can win in medical malpractice cases, but the Illinois Supreme Court declared these laws unconstitutional in "Best v. Taylor Machine Works", 689 N.E.2d 1057 (1997) and "Lebron, et al. v. Gottlieb Memorial Hospital, et al.", 2010 WL 375190 (2010).
Potential Parties
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When plaintiffs do not know if a certain healthcare professional may be responsible for their damages, Illinois law allows them to designate a potential defendant in their petitions as a "respondent in discovery" until they can determine through discovery or deposition if she should be a defendant. The plaintiff has six months after filing his petition to name the "respondent in discovery" as a defendant. Illinois also allows plaintiffs to sue defendants as unknown parties until they are identified in the lawsuit proceedings.
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References
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