What Happens in an Illinois Medical Malpractice Case?
A medical malpractice lawsuit is a specific type of legal claim. Medical malpractice cases in Illinois can be highly technical and complex. They involve going through a series of steps. If you believe that medical malpractice harmed you or a loved one, then you should know what goes into each step.
1. Choosing a lawyer.Some accident and injury cases involve fairly simple and straightforward issues. Medical malpractice is not one of those cases. If you suspect that a doctor, nurse or other medical professional injured you through his or her negligence, then you will need to work with an experienced legal professional.
You should do your research and find a lawyer who has a background in this specific area of personal injury law. You should also meet the lawyer to discuss the details of your case and get answers to any questions you may have about your rights and options.
Most medical malpractice lawyers provide free initial consultations. They also use contingency fee agreements. Under these agreements, the client pays no upfront costs or legal fees unless the lawyer obtains a financial recovery for the client. The lawyer's fees will come from a percentage of that recovery.
In Illinois, like most states, you must file a medical malpractice lawsuit within a specific period of time. This is called the statute of limitations.
The Illinois statute of limitations for medical malpractice claims is two years from the date when you discovered (or reasonably should have discovered) that you were harmed by a negligent act or omission.
In no case can you bring a medical malpractice claim more than four years from the date when the negligent act or omission occurred - regardless of when you discovered it.
If the medical malpractice victim is under age 18, or a minor, the victim will have eight years from the date of the negligent act or omission to bring the claim, or until the minor turns 22 years old.
If medical negligence caused the death of your loved one, you will have two years from the date of death in which to bring a claim.
A medical malpractice claim involves extensive preparation. For this reason, you should meet with a lawyer as soon as possible in order to ensure that your claim is timely filed.
2. Preliminary Investigation.When you talk with a lawyer for the first time, the lawyer will ask you many questions about your medical treatment and the nature and extent of harm that you suffered.
The lawyer will then conduct a preliminary investigation. The lawyer may obtain copies of your medical records, interview witnesses and consult with medical experts.
After this initial investigation, the lawyer will advise you on whether to move forward with your medical malpractice case.
3. Filing the Complaint.If you and your lawyer agree to move ahead with your case, the lawyer will file a lawsuit on your behalf in the appropriate court.
A lawsuit is called a "complaint." It will assert the factual and legal basis for your claim. The complaint will also request damages, or compensation.
Your lawyer will file the complaint in the Circuit Court in the county where the medical facility is located or in the nearest U.S. District Court.
In addition to filing a complaint, your lawyer must also file a "certificate of merit." This is a sworn statement, or affidavit, which states that:
o Your lawyer consulted with a medical expert who reviewed the facts of your case.
o By virtue of his or her experience, the medical expert was qualified to review your case.
o The expert, in a written report, concluded that there is "reasonable and meritorious cause" to file the medical malpractice lawsuit.
4. Pre-Trial.Once your lawyer files the complaint and serves it on the other side, a formal investigation process called "discovery" will begin. This process involves exchanging questions and requests for documents. Both sides may also conduct depositions, obtain affidavits and request a medical examination.
Prior to the trial date, both sides will enter settlement negotiations. Typically, the parties will use a neutral third party, or mediator, to resolve their differences and reach an agreement.
In a medical malpractice case, a medical professional's willingness to reach a settlement typically will depend on the strength of the evidence and the nature and extent of the victim's injuries.
Settlement talks can - and often do - continue through trial and may even take place after a jury returns a verdict.
5. Trial and Judgment.If the case goes to trial, each side will present their witnesses and evidence before a judge and jury. After each side presents their evidence and makes their arguments, the jury will deliberate and return a verdict on liability, damages, or both. The court will then enter a judgment.
Following the verdict, either side may file post-trial motions or an appeal to a higher court.
6. Award.If the jury returns a verdict in your favor, or if you reach a settlement with the other side, your lawyer will collect and disburse the funds.
As part of this process, your lawyer will resolve any health care liens or other claims on your recovery (which can involve extensive negotiations), account for costs and legal fees and disburse the rest to you in either a lump sum or through a series of payments.
The time it takes to resolve a medical malpractice case varies. Some defendants will try their best to delay the process by asking for continuances or refusing to turn over requested information.
Medical malpractice cases, in this sense, require patience. However, if you face years of medical bills and therapy due to your medical malpractice injury, it will be worth going through the process.