Illinois Medical Malpractice Laws

Data have shown that hospitals around the country have been fielding malpractice lawsuits in recent years and paying settlements totaling as much as 10 figures annually. In Illinois, because there are no limits to the compensation victims of medical malpractice can receive, a verdict award for a particular case can hit beyond six figures.

In other news, studies have found that around 250,000 deaths in the U.S. each year are attributed to avoidable medical errors. This is the number according to an investigation published in a PubMed article. Another study from the Better Government Association found that insufficient procedures and human mistakes are the main causes of these errors. 

While this involves a small fraction of the population, situations resulting from such common errors can happen to anyone in the Prairie State. Those who have had the misfortune of being caught in one and are considering filing a medical malpractice lawsuit must understand the complexity of these cases. As previously mentioned, the possible costly outcome of these lawsuits adds to their high-stakes element. 

Case in point: a local Chicago law firm has reported online the record-breaking verdict on its medical malpractice case involving wrongful death. The case was tried in Cook County Circuit Court and awarded a whopping $42 million in 2022. 

Another Chicago law firm reported online a multi-million-dollar win in 2023 against Central DuPage Hospital’s ER Department for failure to diagnose on time. The victim lost a foot as a result of the negligence, and the court awarded him $32 million. Of the total award, $6.5 million was allocated for the victim’s loss of quality of life. 

Another person’s negligence can make someone’s life take a turn for the worse. Read on for awareness of the legal intricacies of medical malpractice lawsuits and how to pursue compensation. 

What Qualifies as Medical Malpractice in Illinois?

Medical malpractice happens when a medical provider fails to fulfill the required standard of care, which in turn causes the patient’s death or injuries. In Illinois, it can also be known as medical negligence. 

Generally, negligence is just one component of medical malpractice. To be able to sue for malpractice, there must be a provable link between the injury and negligence. 

Some of the common cases of medical negligence are:

• Misreading the results of a diagnostic test.

• Prescribing the wrong medication or dosage.

• Not giving the proper diagnosis on time.

• Discharging a patient prematurely.

• Leaving a foreign object inside the patient’s body.

Note that not all injuries that stem from the course of treatment can be considered medical malpractice. For example, well-known side effects of prescriptions cannot be the result of malpractice if the doctor properly warns the patient of such effects beforehand. 

Medical malpractice cases fall under personal injury laws in Illinois. However, they are different from most personal injury cases because of the highly technical aspects of malpractice cases. 

For instance, a jury may be able to quickly understand the cause of a car accident. But in a malpractice case, a medical expert has to explain the standard of care and how deviations from the standard of care caused the injuries. 

Who Can You Sue for Medical Malpractice in Illinois?

Any healthcare professional can be sued for malpractice in Illinois. They can be physicians, nurses, psychologists, dentists, therapists, optometrists, and pharmacists. They can also be specialists such as anesthesiologists, naprapaths, surgeons, and oncologists. 

However, lawsuits are not limited to individuals. Entities such as hospitals, long-term care facilities, home health agencies, and ambulatory treatment centers can be sued as well. 

Exemptions

Some statutes exist to serve as affirmative defenses for those charged with negligence. Cases like these are generally subject to strict conditions and requirements.

Therefore, there are some limitations as to who can be sued for malpractice.

Local Governmental and Governmental Employees Tort Immunity Act

A local government hospital and its employees cannot simply be sued for negligence. Such provisions are afforded under the Illinois Local Governmental and Governmental Employees Tort Immunity Act. 

For actions to become malpractice, it must be proven that these professionals have acted in wanton conduct. This means the medical provider intentionally caused harm, thus, they can be sued for malpractice. 

Good Samaritan Law

In emergency medical situations, certain types of laypersons and healthcare providers can seek liability exemptions under the Illinois Good Samaritan Law. These people can be:

• Providing or accepting emergency telephone instructions.

• Using basic cardiopulmonary resuscitation as volunteers.

• Operating an automated external defibrillator as a volunteer.

• Emergency medical care professionals transporting patients.

But to be able to gain protection under such laws, the following criteria must be met:

• The assistance given was only because of an emergency.

• No gross negligence was involved.

• Permission was sought if the injured person was conscious or coherent.

• The defendant did not cause the emergency situation.

Medical Malpractice Liability Insurance Requirements

There are currently no state laws requiring medical professionals to carry malpractice liability insurance. Nonetheless, insurance can offer protection against financial losses from professional negligence lawsuits. Losses that are covered include litigation costs, attorney fees, and punitive and compensatory damages. 

Even if malpractice insurance rates in Illinois have experienced double-digit increases in the past few years, such coverage is indispensable. The state ranked in the top 10 with the most claims in 2022. Data spanning almost a decade also showed Illinois to be in the same spot for the most paid amount in claims. This is according to data extracted from the National Practitioner Data Bank. 

What Is the Statute of Limitations in Illinois for Medical Malpractice Cases?

The Illinois statute of limitations is two years after the patient discovers or should have reasonably discovered that the injuries were due to malpractice. Additionally, state laws no longer allow patients to file a lawsuit four years after the last treatment for such injuries, regardless of the discovery date.

If the negligence resulted in the patient’s demise, a medical malpractice lawsuit must be filed within two years after the death.

Discovery Date

Contesting the discovery date is one of the legal maneuvers a defendant can make. For the benefit of patients, the discovery date is ascertained to be any of the following:

• The date any person would reasonably have found out about the injury.

• The date on which the patient was informed about the occurrence of the injury.

Exemptions

There are exemptions to the two-year statute of limitations:

• Children under 18 years old have to bring a lawsuit by their 22nd birthday.

• When the negligence is concealed, the statute of limitations becomes five years.

• For disabled patients, the two-year deadline starts when they are physically able to proceed with the lawsuit. 

Can the statute of limitations be paused?

Yes. In certain cases, the statute of limitations may be paused if:

• The court issued a hold order.

• The defendant flees the state.

• The case is dismissed or reversed in court, with certain requirements fulfilled.

What Do You Need to Prove in an Illinois Medical Malpractice Case?

Elements of Negligence

To be able to have a medical malpractice case, you need to prove the following main elements:

• The defendant owed the patient a duty of standard care.

• There is a violation of the standard of care.

• Injuries stemmed from the violation.

• Damage to health resulted from the injuries.

However, another aspect differentiating these types of cases from personal injury cases is the submission of an Affidavit of Merit. This has to be done within 90 days of filing the lawsuit. The affidavit shall declare that the lawsuit is based on meritorious or reasonable grounds. It must be signed by a medical expert who has to meet certain standards.

Along with the affidavit, a case report must also be filed by the expert. Under the standards of Illinois medical malpractice laws, these experts must:

• Have taught or worked for the last six years in the same medical field as the case.

• Possess relevant knowledge of the medical issues surrounding the case.

• Conform to the Illinois expert witness standards.

In addition to these, several other methods of proving negligence exist. 

Informed Consent Violation

Negligence can also come in the form of violating informed consent provisions under the law. This means that the medical professional failed to properly notify the patient of a procedure’s risks, benefits, and alternative options.

Patients have the right to know any relevant information about a medical procedure so they can make better decisions. It goes beyond just telling patients some information; they also need to understand the information and be given the chance to ask questions about it. 

Certain exemptions exist for this kind of negligence. For instance, an ER doctor treating an accident victim with catastrophic injuries does not have time to inform the patient properly.

Breach of Contract or Warranty

Medical professionals must not promise favorable results for any medical procedures because they cannot be certain of the results. When they make promises and the outcome is different, they can be held liable for breach of contract or warranty. The failure to produce the results can be grounds for medical negligence.

An example is a plastic surgeon who promised a certain result to the patient but failed to do so. In this case, the victim may be able to pursue recourse through legal action.

Res Ipsa Loquitur Legal Doctrine

Certain medical negligence cases may be difficult to prove. One such case is the presence of a foreign object inside the patient’s body after surgery. 

Victims in these kinds of cases can seek protection from Res Ipsa Loquitur law doctrines, which shift the burden of proof to the defendant. 

Under this doctrine, negligence is considered so obvious that it does not take a medical expert to be able to explain it. Therefore, the burden rests on the defendant to prove no negligence was involved. 

How Much Can You Sue for Medical Malpractice in Illinois?

Each claim is unique. Even the same injury can have different effects on two people.  The health, age, and career of a medical malpractice victim in Illinois affect the damages—legalese for financial compensation—that can be recovered. 

While there is no exact formula to compute compensation for a medical malpractice case, certain guidelines exist. 

Types of Damages

One of the guidelines is generally categorizing damages into two: economic and non-economic damages. A third type—called punitive damages—is expressly prohibited by state laws in medical malpractice cases. 

Economic Damages

Economic damages are cash lost due to medical malpractice. These include:

• All past, present, and future medical expenses.

• Lost income or salary plus potential earning loss.

• Rehabilitation costs, including medications, assistive devices, and therapy.

Non-economic Damages

Non-economic damages are losses that cannot be quantified. Some examples of these losses are:

• Pain and suffering.

• Loss of enjoyment in life.

• Loss of companionship for family members.

• Emotional and psychological trauma.

How non-economic damages are determined would depend on the assigned seriousness factor, or “non-economic multiplier.” The factor ranges from 2 to 5. Legal teams usually use factors between 4 and 5, while insurance companies use factors between 2 and 3. 

Damage caps

In 2010, the Illinois Supreme Court ruled caps on damages unconstitutional. Therefore, medical malpractice cases filed after this year no longer have any caps on any type of damages. 

As reported in the preceding paragraphs, the insurance company may improperly valuate the worth of a claim. With the help of a medical malpractice law firm in Illinois, the victim can determine a fair compensation amount for their claim.

Negligence System

Illinois medical malpractice laws follow the modified comparative negligence system, which limits how much compensation victims can obtain if they have some degree of fault. The compensation would then be reduced by how much fault they have contributed to their injuries. 

For example, a patient who does not properly follow the dosage prescribed in the doctor’s orders may be found to be 20% at fault for the resulting injuries. If the court awards $100,000 to the patient, the award will be deducted by $20,000, or 20% of the $100,000, for the contributed fault. This brings the patient’s total compensation to $80,000. 

However, if the percentage of fault exceeds 51%, the claimant can no longer obtain compensation. This goes to say that if the victim is at most responsible for their injuries, they will be barred from making a financial recovery. 

Methods of Obtaining Compensation

Many malpractice cases in Illinois do not go to trial. Out-of-court settlements can happen at any time in the case: early on, as the case progresses, or before trial. Nevertheless, a case going to court cannot be ruled out.

An Illinois medical malpractice lawyer can help the injured with settlement negotiations, evidence preparation, and court representation. Their legal team can assist in building the case to improve the chances of securing fair compensation, whatever the method of financial recovery is. 

Alternative Dispute Resolution

State laws do not require the use of alternative dispute resolution methods such as mediation or arbitration prior to trial. Alternative methods must be done voluntarily. If both parties are interested in settling, they may seek an arbitration proceeding.

Litigation

When early settlements between the victim and the defendant and their insurers fail, the claim will proceed to civil court. Once the lawsuit is filed, the case will undergo different stages: deposition, pre-trial litigation, and trial. 

During the trial, a judge or jury will hear the facts of the case and issue a decision or verdict that may either favor the injured or the defendant. If the decision favors the injured, they will be awarded compensation.

Under the Illinois judicial system, a trial by a six-person or 12-person jury can be adopted to resolve the case. To do so, either party must make a specific request. A six-person jury is utilized for cases with damages less than $50,000. 

How Much Does It Cost to Pursue a Medical Malpractice Case in Illinois?

There are many costs associated with a medical malpractice case in Illinois. For this reason, some lawyers and their clients enter into a formal agreement with legal financing companies to fund litigation costs. 

Some of the costs are for medical records, legal teams, expert witnesses, and court fees. Because the cases are documentation-intensive, administrative expenses can significantly eat up the legal costs. The expenses include hiring court reporters, shipping documents, and producing transcripts. 

The bulk of the costs are for lawyer’s fees. However, some Illinois law firms may advance case-related costs. Added to this, working with a medical malpractice lawyer in Illinois does not entail upfront payments from the client. 

These lawyers usually offer free consultations and agree on a contingency fee basis. The contingency fee means they will only get paid once the client receives the settlement payout or verdict award. 

Medical malpractice laws in Illinois limit the percentage of what lawyers can get. The percentage should not exceed 33 1/3% of all the client’s damages. 

Legal Resources for Medical Malpractice Victims in  Illinois

Becoming a victim of negligence can be a trying time for the injured and their family. At any point in their case, they can check out some online resources that may aid them in making informed decisions and taking specific actions. 

Illinois State Bar Association

The State Bar’s website offers various information, such as getting legal help, cautioning against self-representation, and learning about the Illinois judicial system. Victims with limited financial means can check out different legal aid organizations in their area. For clients who are experiencing problems with their lawyer, the Illinois State Bar Association can also provide guidance. 

Illinois Department of Public Health

This department investigates cases such as medication errors, care quality issues, and patient harm allegations in certain types of healthcare facilities, like hospitals, rural health clinics, Medicare-certified mental health clinics, and hospices. Injured patients and their families may report negligence cases anonymously. They can reach the Central Complaint Registry Hotline at 800-252-4343.

Illinois Department of Financial and Professional Regulation

The IDFPR regulates practitioners under the Illinois Medical Practice Act. These practitioners include MDs and DOs, chiropractors, and physician assistants. The department’s Physician Profile Search engine can help patients check if their medical provider has been disciplined before. Patients who want to file a complaint can get in touch with the IDFPR Division of Professional Regulation Complaint Intake Unit. They can call 312-814-6910 and make an anonymous report initially.