Illinois Medical Malpractice Laws

If you are thinking of pursuing a claim of medical malpractice, it is likely that you have suffered a significant injury at the hands of your health care provider. This type of litigation can be incredibly nuanced, the complexities of which require skilled and experienced legal counsel. If you or a loved one has been a victim of medical malpractice, you have a specified time period in which you are able to bring a claim. If you fail to file a claim within that timeframe, it is quite possible that you will not be able to do so at any point and you will not be permitted to recover for your pain and suffering. This page is intended to provide a brief overview of what you may expect if you are pursuing a medical malpractice claim in Illinois; however, the best course of action to take if you are considering doing so is to consult with an experienced medical malpractice attorney licensed in Illinois. An experienced attorney will be able to guide you through the specifics of the laws that are more finely tuned with the details of your medical malpractice claim and explore whether your claim has the requisite merit to be filed in court.

Suing for Medical Malpractice in Illinois

In Illinois, a medical malpractice case may be brought by an injured patient against any licensed health care provider, including a medical doctor, nurse, physical therapist, and mental health care professional. The law in Illinois places a set time period for which a medical malpractice claim may be filed. If named as a defendant in a medical malpractice case, the law in Illinois allows the defense of modified comparative negligence to be used which allows a damage award to be reduced in proportion to the percentage of fault assigned by a court.

When it comes to medical malpractice claims, many cases settle out of court prior to the case advancing to the trial stage of litigation. Illinois is one of a few states that does not place a limit on damages that may be awarded to a plaintiff in a medical malpractice case.

How long do I have to file a medical malpractice case in Illinois?

The first step in bringing a claim for medical malpractice against a healthcare provider is making certain that you are permitted to do so. The law in Illinois mandates that an action for personal injury must be filed within two years from the date the cause of action accrues. [1] This time limitation is known as the “statute of limitations” which refers to the period from the time an injury occurs or is discovered to the final date on which a medical malpractice lawsuit can be filed. If you decide to bring an action after the statute of limitations have passed, a court can dismiss your case and you will be left with no other legal option to pursue justice. The reason behind placing a time limitation on when you may file a medical malpractice claim is based on the notion that a court is interested in credible evidence in order to establish a cause of action. As time passes, it is possible that the crucial evidence that would initially aid your case would become less compelling, making your case all the more difficult to prove.

It is important to note that Illinois law states that the statute of limitations clock does not begin to run until your injury has been, or should have been, discovered. This rule is known as the “discovery rule.” Once you discover or should have discovered, your injury, the two-year window to file your lawsuit begins. However, you may not bring an action for medical malpractice more than four years from the time date that the alleged malpractice took place, regardless of when you actually discovered your injury.

If the injured party is a minor, the law states that they have until the earlier of eight years since the time of the malpractice or turning 22 years old to file a medical malpractice lawsuit. [2]

In Illinois Medical Malpractice Cases, who is Responsible?

In Illinois, you may bring a medical malpractice lawsuit for an injury you suffered against a licensed health care professional or health care provider based upon their negligence, misconduct, errors or omissions.

Those that can be held responsible due to being included in the definition of a “health care professional” include any individual in any of the following license categories: licensed physician, licensed dentist, licensed optometrist, licensed naprapath, licensed clinical psychologist, or licensed physical therapist. [3]

Those that can be held responsible due to being included in the definition of a “health care provider” include any entity in any of the following license categories: licensed hospital, licensed home health agency, licensed ambulatory surgical treatment center, licensed long-term care facilities, or licensed emergency medical services personnel. [4]

When bringing a medical malpractice claim against a healthcare professional or provider, the burden of proof rests with you and you must prove:

• The standard of care in the medical community for which the defendant’s treatment should be measured,
• That the defendant deviated from that standard,
• That the deviation proximately caused your injury.

What if I am partially to blame? Can I Still Recover Money for Illinois Medical Malpractice?

Illinois, along with 32 other states recognizes the doctrine of modified comparative fault. The doctrine allows a court to assign a percentage of blame to each party involved in the lawsuit and any damage award is reduced in proportion to your apportioned fault. Of the 33 states that follow a modified version of comparative fault, Illinois is one of 22 states (Connecticut, Delaware, Hawaii, Indiana, Iowa, Massachusetts, Michigan, Minnesota, Montana, Nevada, New Hampshire, New Jersey, Ohio, Oklahoma, Oregon, Pennsylvania, South Carolina, Texas, Vermont, Wisconsin and Wyoming) that follow a 51% rule where you are only able to recover damages for an injury if a court determines that your apportionment of fault for your own injury is 50% or less. [5] In other words, if you wish to recover a monetary award for your injury, you must not have contributed more to the injury that the health care provider that you are suing.

For example, imagine you become sick after ingesting medication that was prescribed to you by your doctor. A court finds that your sickness was caused by a combination of a disclosed allergy and food that was against the doctor’s instructions that you consumed while on the medication. The court ultimately finds that the doctor should never have prescribed that specific type of medication due to your allergy and assigns the defendant 50% of the blame while assigning 50% of the blame to you for not following the doctor’s instructions when you consumed food that was not permitted while on the medication. Since you were assigned 50% of the blame, you would be able to recover a portion of damages because you were not found to have been 51% or more at fault for your injury. If the court awarded $100,000 in damages, you would be able to recover $50,000 after the apportioned 50% of fault is applied.

Some states do not adhere to a modified form of comparative fault and instead follow a doctrine of pure comparative fault where a plaintiff is able to recover for damages even if they are found to have been 99% at fault for their injury. An argument against the adoption of pure comparative fault is that it is contrary to the nature and purpose of the legal system to allow a plaintiff who has substantially contributed to their own injury to recover damages for any portion of their loss. This is a reason why Illinois decided to adopt a modified system.

Are there medical malpractice recovery caps in Illinois?

If you are ultimately successful in your medical malpractice claim, you will be awarded damages in accordance with the doctrine of comparative fault. The term “damages” is synonymous with a monetary award which is used to compensate the plaintiff for the injuries they sustained as a result of the plaintiff’s negligence.

Compensatory Damages are meant to place you in the position you would have been in had your injury never occurred as they are meant to compensate you for your injury. Compensatory damages are usually split into two categories – economic damages and non-economic damages.

Economic damages reimburse you for out-of-pocket items that can easily be accounted for like:

• Medical bills
• Prescription fees
• Nursing costs
• Physical therapy costs
• Wages lost from an inability to work

Non-economic damages compensate you for occurrences that are hard to properly value. For example:

• Pain and suffering
• Loss of consortium
• Loss of enjoyment of life
• Future medical costs
• Loss of future wages

Illinois differs from the majority of states in that the law does not allow an award of punitive damages for lawsuits involving medical malpractice. Punitive Damages are different from compensatory damages in that they are intended to punish the defendant rather than provide compensation to you.

Illinois does not have a cap on the amount of economic damages that you are able to recover during a medical malpractice lawsuit. The state has gone back and forth on placing a cap on the amount of non-economic damages that may be awarded. At one point a $500,000 cap was put into place but the Court in LeBron v. Gottileb Memorial Hospital declared such a cap as being unconstitutional. [6] LeBron v. Gottileb Memorial Hospital

Expert witness reporting and testimony

The testimony given by an expert witness is not only invaluable to you but required by law, if you are bringing a claim of medical malpractice. It is the expert that will be able to establish that the defendant either lacked or failed to exercise the requisite degree of knowledge or skill held by healthcare providers in their field and that as a proximate result of the lack of knowledge or skill or the failure to exercise this degree of care, you suffered injuries that would not otherwise have been incurred.

The state of Illinois has seen numerous medical malpractice claims be filed against healthcare professionals despite the fact that the claims were frivolous and lacked merit. Those cases tied up the court system and caused many skilled physicians to lose their practices due to insurance increases. To help remedy this problem, Illinois has implemented a procedure requiring you to file an affidavit which accompanies your initial Complaint when filing your medical malpractice lawsuit with the court. [7]

Therefore, when filing a medical malpractice lawsuit, you must complete an affidavit that states an expert who has practiced or taught medicine within the last six years in a relevant area, and is experienced in the type of medicine that caused your injury, has reviewed your medical records and concluded that your case has merit and the lawsuit should proceed. [8]

If you do not file the affidavit, it is likely that your case will be dismissed.

Are some parties immune from medical negligence cases?

The Illinois Tort Immunity Act, provides immunity from liability to public entities and their employees in the event of hospital or medical negligence for an act or omission by an employee, physician or other hospital-employed medical provider when the malpractice claim is based upon a misdiagnosis or in choosing not to correctly diagnose an illness or condition that caused your injury. [9]

Settling medical malpractice cases in Illinois

Many medical malpractice cases settle out of court. For this reason, many states have enacted laws that require some type of mandatory pretrial mediation or screening panel. However, the law in Illinois does not require mandatory arbitration, mediation, or the submission of your medical malpractice case to a screening panel as a form of alternative dispute resolution prior to the claim reaching the trial stage of litigation. [10]

However, if both parties are interested in reaching a settlement in lieu of going to court, an arbitration proceeding may be sought.

To proceed with a voluntary arbitration proceeding, you must serve a notice of demand for arbitration along with a statement of your claim and the cause of action upon all involved parties.

When compared with going to trial, settlement conferences can be appealing due to their low cost and expedited resolution.

Litigating medical negligence cases in Illinois

A claim for medical malpractice in Illinois is initiated by preparing a Complaint that must be served on the named defendants in your case. The defendant is then required to file a document that is called the Answer which provides responses to the allegations you made in the Complaint and will also list the affirmative defenses that will be used.

Initiating the Case

If the parties to a medical malpractice lawsuit are unable to reach a settlement, the claim will proceed to civil court. In Illinois, a civil action begins by filing a Complaint with the clerk of the court. A Complaint should include:

• The proper name of every plaintiff and of every defendant.
• The venue for which you would like the case to be heard.
• A statement of facts constituting the cause of action.
• A demand for relief.

A civil Summons is also required and notifies the court and the defendant that you are filing a lawsuit. The Summons must be signed by the clerk of the court and must then, along with the Complaint, be delivered to all named defendants in the lawsuit. In addition to serving the Complaint and Summons, in order to begin your case, you must file an affidavit that states that a physician has reviewed your case and all relevant medical documents and is of the opinion that your claim has merit and your case should go to trial. [11] All named defendants are then required to provide a response to the complaint in the form of an Appearance and an Answer within 30 days of being served. [12] An Appearance notifies you and the Court that the defendant is aware of the lawsuit. An Answer is the defendant’s legal response to the Complaint.

Preparing for Litigation

After the Complaint, Affidavit, Summons, Appearance and Answer have been filed in the appropriate court, the parties may begin the discovery process. Discovery is a procedure designed to allow disclosure between both sides of a lawsuit which allows both sides to know what to expect at trial.

In a medical malpractice case, medical records and doctor’s notes are usually items that will be requested for disclosure.

Each side may obtain discovery by:

• Deposition
• Written interrogatories
• Production of documents
• Physical or mental examinations
• Requests for admission [13]

A deposition is a fact-finding tool where the opposing side is permitted to ask questions of the witness being deposed who is under oath. A deposition does not usually take place in a courtroom. Instead, the questions are usually asked in an attorney’s office where attorneys are present in order to help advise their client on how to answer certain questions as well as to make objections if necessary. Through the question and answer session, opposing counsel will try to find out what facts the opposing party believes to be true and what facts they may be exaggerating. A court reporter is usually present during a deposition.

Written interrogatories are written questions sent to the opposing side that request answers which will be used to establish the facts that will be presented once the case goes to trial.

Production of documents is a request made to the opposing side whereby tangible documents are sought. In a medical malpractice case, an example of a request for production of documents would be a request to view the medical records of the claimant.

Request for admission is a set of statements drafted by one side and sent to the other where the receiver must answer in the affirmative or the negative. In a medical malpractice case, an example of a request for admission would be a statement like, “the defense has no evidence to support a basis that the claimant caused their own injuries.” If the defense answers in the negative, the claimant would know that the defense is intending to proffer some type of evidence in an attempt to prove that they were at least partially to blame for their own injury.

In a medical malpractice case, it is possible that you will need to be medically evaluated in order to corroborate that the injury being complained of does in fact exist. You must comply with any request unless you file a written objection stating the reason or reasons for your objection.

Pretrial Litigation

Litigation can be expensive and there is no guarantee that either side will come out unscathed. For these reasons, it is not uncommon for a case to settle prior to reaching the trial stage of litigation.

You can attempt to settle your case by way of informal conversations between representing attorneys or through alternative dispute resolution.

The law in Illinois does not require the use of alternative dispute resolution as a means of settling a case but does allow its use on a voluntary basis. If the involved parties agree, an arbitration proceeding may be sought which is less formal than a standard civil trial. An award made at arbitration is non-binding. [14]

Trial

During a trial, all admissible evidence will be presented to the ‘trier of fact’ who is a person or group of people who hear testimony and review evidence in order to issue a ruling in favor of one party or another. There are two potential triers of fact in a personal injury case in the state of Illinois: a judge or a jury. If either party would like the case to be heard by a jury, a specific request must be made. Illinois currently utilizes 12-member juries in most civil cases. It uses six-person panels only when the claim for damages is $50,000 or less unless one of the parties requests a 12-person jury. [15]

To choose a jury, a procedure known as “voir dire” is conducted whereby attorneys ask potential jurors questions in order to determine what biases the panel members may have in favor or against the cast being brought before the court. Once this process is completed, both sides will decide what parties they would like to remove from juror consideration. The law in Illinois allows each side to have five peremptory challenges where jurors may be eliminated from consideration. [16] Once each side finishes announcing the parties they wish to have removed, the jury is impaneled.

In Illinois, a person is considered to be qualified to be a juror if they are:

• a citizen of the United States;
• a resident of Illinois
• at least 18 years of age; and
• of sound mind [17]

After the jury selection is completed, opening statements will begin. An opening statement is an outline of what each side thinks the evidence will be and is offered to help jurors understand and follow the evidence during the trial.

From there, the plaintiff will begin to argue their case. The plaintiff will call witnesses at this time and each witness will be questioned by the plaintiff’s attorney and then likely cross-examined by the

opposing side’s attorney. After all the plaintiff’s witnesses have been called and evidence has been presented, the plaintiff will rest their case.

Once the plaintiff finishes the presentation of their case, the defense will begin to present their evidence. The defense will present the physician’s side of the case and attempt to show why negligence was not involved in creating the patient’s injury.

Once both sides have argued their cases, closing arguments will take place. During closing arguments, each side’s attorney will explain to the jury what they believe the evidence proves. In the final argument, each side will summarize the facts that were presented during the trial and attempt to show how they support their client’s case. The closing arguments allow the jury to better understand the case.

Finally, jury instructions are then be given by the judge to the jury and the jury is then free to deliberate and come back with a finding.

Appeal

Many times the losing side in a medical malpractice case will opt to appeal a decision from the lower court. An appeal is a legal proceeding which allows a higher court to review the decision rendered by a lower court. The notice of appeal must be filed with the clerk of the circuit court

within thirty days (30) after the entry of the final judgment. [18]

How to find the best Illinois Medical Malpractice Lawyer for your case

Achieving the best possible outcome in your medical malpractice case is often contingent upon securing the best possible counsel to represent you in your action. Finding skilled legal representation can take your mind off of the legalese involved in a lawsuit so that you can focus on healing your injury.

One of the main motivating factors in bringing a medical malpractice lawsuit against a health care provider that caused your injury is to receive proper compensation for the pain, suffering and losses you have likely endured. Without a damage award, it is likely that you would be forced to go out-of-pocket in order to help heal your injury. Therefore, it is easy to see why hiring proper legal counsel is of the utmost importance.

When looking to hire legal representation, it is important to remember that the attorney will be working for you – not the other way around. The process of hiring an attorney or law firm should be on your timetable, not theirs. Do not let an attorney or firm pressure you into hiring them on the spot. In fact, you should interview more than one law firm to make sure that the counsel you end up with is the right fit. Once you have several candidates lined up, weigh the pros and cons of each and decide which you feel most comfortable with.

When looking for legal representation, you will want to search for an attorney or firm that has a wealth of knowledge and experience in cases that are similar to your own. Do not be afraid to ask an attorney or law firm their level of experience. It may also be wise to ask if they have ever litigated a case similar to yours and whether or not they were successful. If they have had experience with cases with facts similar to yours, they may be able to give insight into how long the case may last and what your expected damages may be. They can also inform you of the estimated cost of litigation. Do not be afraid to ask about their fee structure and if they prefer to litigate on an hourly or contingency rate.

You may want to get a feel for if you actually like the attorney or law firm that you are interviewing. While you do not have to be best friends with your legal counsel – in fact, it is best not to be – you need to decide if the person or people representing you are people you want to be in constant contact with day in and day out. Communication between attorneys and clients is incredibly important. You should also ask your potential attorney or firm how they communicate with their clients. People communicate in different ways which can lead to frustration if the methods used between the parties do not mesh. Your attorney should adapt their communication methods to fit your needs. If the attorney or law firm is unwilling to communicate with you the way you prefer, move on and find representation that will.

Some notable medical malpractice law decisions from Illinois

These cases represent awards to plaintiffs in medical malpractice cases in Illinois. These results are in no way a guarantee that subsequent, similar, cases will see the same results.

Ewing vs. University of Chicago Medical Center

The plaintiffs, Lisa Ewing and her son, Isaiah, filed a medical malpractice lawsuit against U of C Medicine, for an incident that took place when Isaiah was born.

Upon being born, Isaiah was in fetal distress and suffered from deprivation of oxygen which caused a severe brain injury. The hospital, known as an academic hospital that treats complex cases, treated Isaiah and his mother for an infection which was related to cerebral palsy.

The plaintiffs outlined 20 errors by doctors and nurses that took place after Lisa Ewing arrived at the hospital and was experiencing less movement by her then unborn baby. Those errors included failures to perform a timely cesarean section, follow a chain of command and be aware of abnormal fetal heart rate patterns that indicated distress to the baby, including hypoxia, or a drop in the supply of oxygen.

The hospital claimed that Isaiah was born with normal oxygen blood levels and was not deprived of oxygen. The hospital also claimed that his injury occurred before being treated and that Isaiah’s injury was due to an unknown disease.

The plaintiffs claimed that doctors and nurses covered up their mistakes in order to protect the hospital from paying damages.

The jury agreed with the plaintiffs and ordered the University of Chicago Medicine to pay $53 million in damages.

Gulino v. Zurawski

A medical malpractice lawsuit was filed by the wife of a man that died of a rare blood disease against the man’s primary care physician, an ER doctor at Palos, Advocate Christ Medical Center and the nurse that Advocate Christ Medical Center dispatched, alleging claims of medical negligence.

The lawsuit claimed that the father had complained to doctors beginning in October 2009 about a range of symptoms, including nausea, fatigue, shortness of breath, chills, and lightheadedness. After running an electrocardiogram and other tests, doctors initially diagnosed anxiety and prescribed anti-anxiety medications. However, the symptoms became worse and later in the month, the man was rushed to Advocate Christ Medical Center. At that time his speech was slurred, he had problems with mobility in his left arm and paralysis on the left side of his face.

Blood tests were run and revealed low platelet counts and kidney and liver failure. A TTP diagnosis was made at that time. TTP is a rare blood disease in which a protein in the plasma causes blood platelets to clump, clogging blood vessels and preventing the flow of oxygen through the body.

The disease is almost always fatal unless treated with a procedure known as plasmapheresis. The doctors then ordered plasmapheresis. The hospital conveyed that order to Acute Extracorporeal Services, a specialized medical contractor the hospital works with to provide plasmapheresis. However, the order requesting Acute Extracorporeal Services to dispatch a nurse to the hospital to treat the man on an emergency basis was issued at 4:42 pm but she did not arrive at the hospital until approximately 11 pm. The nurse had allegedly first stopped at another hospital to perform a non-emergency procedure on another patient and then went to her home before traveling to the hospital. The man died about 40 minutes after the nurse arrived.

A jury awarded a $12 million after finding that there was a failure to correctly diagnose the man’s condition and provide adequate medical treatment to save his life.

The award was appealed based upon the claim that the circuit court erred by not granting a motion for a judgment notwithstanding the verdict but the decision was upheld on the basis that the plaintiffs’ witnesses were credible enough, and, the nurse’s delay in traveling to the hospital was so grossly negligent that expert witness testimony regarding the requisite standard of care was not required in this case.

Footnotes

[1] 735 ILCS § 5/13-212(a)

[2] 735 ILCS § 5/13-212(b)

[3] 770 ILCS § 23/5

[4] 770 ILCS § 23/5

[5] 735 ILCS § 5/2-1116

[6] LeBron v. Gottileb Memorial Hospital, 237 Ill. 2d 217, 251 52 (2010)

[7] 735 ILCS § 5/2-622

[8] 735 ILCS § 5/2-622

[9] 745 ILCS § 10

[10] 710 ILCS § 15/1

[11] 735 ILCS § 5/2-622

[12] Ill. S. Ct. R. 181(a)

[13] Ill. Sup. Ct. R. 216

[14] 735 Ill. Comp. Stat. § 5/2-1004A

[15] 725 ILCS § 5/115-4

[16] 735 ILCS § 5/2-1106

[17] 705 ILCS § 305/1

[18] Ill. Sup. Ct. R. 303(a)(1)