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Three Questions to Consider before Filing a Medical Malpractice Case

On Behalf of | Nov 2, 2014 | Firm News

Do you really have a medical malpractice case?
Many times I receive phone calls from grieving parents or a spouse who has had a tragic loss as a result of a medical procedure or event. The question becomes whether or not they have a medical malpractice case.

There are a number of different considerations in deciding whether or not you have a case and whether or not you should file a case. It is important to note that these are two different decisions.
Consideration #1: Are you within the statute of limitations?
In deciding whether or not you have a case, understand that the law in Illinois is fairly restrictive for medical malpractice cases.
First of all, there is what they call a two year statute of limitations and a four year of statute of repose. That means the state of Illinois requires that if you do have a medical malpractice case, you have to file within two years of the medical malpractice, or two years from when you knew or should have known about the malpractice, which is called the Discovery Rule.  The four year statute of repose bars any medical malpractice case after four years from the date of the malpractice.

For example, a doctor leaves a sponge inside the surgical site. The sponge sits there for two years and six months until you go into the hospital to have an x-ray and they discover it. In this case, you are beyond the two year statute of limitations, but within the four year statute of repose. In this example, although the two year statute of limitations has expired, the case would not be barred because you discovered the malpractice two years and six months from the surgery, so the Discovery Rule would apply.

Understand that if you discover the malpractice four years after medical treatment, most times you are out of luck.

Consideration #2: Will another doctor certify your case?

In the state of Illinois, only a doctor can say that another doctor committed negligence.
Therefore, in order to have and file a medical malpractice case in the state of Illinois, you must have your case certified by having it reviewed by another physician. The physician must prepare a statutory 2-622 affidavit that in summary says “I have reviewed the medical records and I find there to be a meritorious case” supported by opinion and facts.

You can have the greatest medical malpractice case in the world, but if you cannot get a doctor’s affidavit to sign off on it, you cannot file it.

If you think you have a medical malpractice case, you need to take it to an attorney who specializes in medical malpractice cases. Litigators who aren’t experienced in medical malpractice may not have the experience to handle a complicated medical case.  In addition, they may not have the relationships with physicians needed to determine whether or not the case is meritorious.

Consideration #3: Is the event life changing?
Even if you determine that negligence has been committed by a medical provider, in order to justify the expense and effort involved in a medical malpractice case, the resulting damages need to be life changing.

The hiring of doctors to certify the case, the hiring of physicians to be experts, the depositions of multiple physicians and medical providers who are spread throughout the country, including not only the travel and deposition costs, but also the cost of having each one of those depositions reviewed by your expert, can easily total $50,000-$100,000.

I can’t tell you how many times I’ve had clients call me and say, “the doctor almost killed me.” I say, “If the doctor had killed you, you would have a better case.” Because there are no damages, you cannot justify filing the case. You can’t sue for what almost happened.  And you can’t sue for a case with limited damages because of the economics involved. Usually medical malpractice cases that justify filing involve the loss of life or a limb, a permanent disability, or considerable disfigurement.

If you think you have a case, talk to an experienced medical malpractice attorney. They will be able to tell you whether or not your claim warrants further investigation.