Top 10 Challenges Facing Medical Malpractice Victims in Illinois

1. Even if they survive, many people never realize they were a victim of malpractice.

Studies show that between three and five percent of admitted hospital patients suffer a preventable injury from medical mismanagement. These medical mistakes include misdiagnosis, delayed treatment, and medication error. In fact, as reported in a 2006 Newsweek Magazine article, nearly 100,000 patients die in the U.S. each year as a result of preventable medical mistakes. Yet, only 10,000 medical malpractice suits are filed each year. Thus, almost ninety percent of deaths resulting from medical malpractice never result in a lawsuit. For these reasons, it appears most Americans never realize when they (or a loved one) are a victim of medical malpractice.

2. In many instances, no autopsy was performed.

Medical malpractice cases are often very difficult to prove. When medical malpractice results in death, the autopsy report often becomes a critical piece of evidence. Without this evidence, it can be very difficult if not impossible to try to recreate what went wrong. After all, the doctor or hospital need not prove anything; the plaintiff has the burden of proof. The plaintiff must prove the wrongful death occurred because of malpractice. When no autopsy is performed, the plaintiff’s ability to prove malpractice becomes extremely difficult.

3. The statute of limitations may bar recovery.

The statute of limitations provides a time period by which a lawsuit must be filed. This time limit can vary from state to state. No matter how outrageous the malpractice, if the statute of limitations has run out and no exceptions can be met, you will be barred from recovery. For this reason, it is critical to consult a knowledgeable medical malpractice lawyer who can advise you when the statute of limitations may expire in your case.

4. Many attorneys are inexperienced or ineffective at handling malpractice cases.

Medical malpractice is one of the most complicated areas of law. Even in a city as large as Chicago, Illinois, very few lawyers posses the knowledge and experience to successfully handle a medical malpractice case. If you retain a lawyer who is inexperienced or ineffective in handling medical malpractice cases, your chances of obtaining full compensation are quite small.

5. Even if malpractice occurred, the cost of prosecuting the case may exceed the value of the case.

Medical malpractice cases almost always require testimony from medical experts. Spending $50,000 to $100,000 is not uncommon in a medical malpractice case. Large case can cost much more. For these reasons, even assuming you can prove malpractice, the cost of prosecuting these cases can often be more expensive than the amount of money a jury would ever award.

6. Even if the physician was negligent, the victim may be unable to prove the physician’s negligence caused the injury or death.

In a medical malpractice case, it is not enough to prove the health professional “deviated from the standard of care” (ie., was negligent). You must also prove that deviation from the standard of care caused the injury or death. Usually, causation is the toughest element to prove in a medical malpractice action. In many instances, the defense attorney will argue the patient was injured or died as a result of their underlying condition rather than anything the health professional did wrong. Thus, even if the plaintiff can prove the health professional was negligent, they may be unable to prove the harm occurred because of medical malpractice rather than the patient’s underlying condition.

7. The physicians rarely admit their mistakes to the patient or the patient’s family, particularly when their mistake results in serious harm or death.

In a recent Newsweek article on “Fixing America’s Hospitals,” the first suggestion offered was that the health profession should begin “Facing Up to Mistakes.” However, if history is any guide, the likelihood that a health professional will admit a serious medical mistake to a patient or their family is virtually unheard of.

8. The physician may refuse consent to settle, despite malpractice out of their our concern their malpractice insurance rate may increase.

There is no question malpractice insurance rates have risen over the last five years. As recent studies confirm, the reason for this rise has far more to do with the declining stock market rather than malpractice lawsuits which have remained the same or declined over the years. With malpractice rates at an all time high, physicians are even more reluctant to consent to settle a case since this will further increase the cost of their malpractice insurance. Consequently, more and more physicians are refusing to consent to settlement and, instead, are choosing to allow an increasingly conservative jury pool to decide the case.

9. In Illinois, the vast majority of jury verdicts are in favor of the physician and against the patient (or their family).

Medical malpractice cases in Chicago are typically filed in Cook County, Illinois. Although Cook County is considered among the more liberal section of the State, 80% to 90% of malpractice verdicts in the county are in favor of the health professional and against the plaintiff. In more conservative counties like DuPage County, Illinois, verdicts against the patient or their family are approximately 95%. Indeed, juries are becoming increasingly more reluctant to return a verdict for patients or their families in medical malpractice cases.

10. The current cap on non-economic damages in Illinois substantially limits non-economic damages, even in the most egregious cases.

In Illinois, as in many other states, state legislatures are passing caps on non-economic damages in medical malpractice cases. The Illinois cap on non-economic damages is $500,000 per physician. This cap will apply no matter how outrageous the conduct and no matter how severe the injury, even when the medical error resulted in death. To the extent the costs of prosecuting a medical malpractice case continues to rise, many victims of medical malpractice will soon see the courthouse door closed to them based on simple economics.

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