Medical Malpractice in Illinois 2016: When Health Care Mistakes Hurt or Kill the Patient

Medical Malpractice in Illinois 2016: When Health Care Mistakes Hurt or Kill the Patient

Like Indiana, Illinois lawmakers have also passed laws that place limits on the damages that a patient can get if they are a victim of medical malpractice. (See our last post for details on Indiana’s Medical Malpractice laws.)

The Illinois Medical Malpractice laws are not the same as those of Indiana. Each state independently controls how medical malpractice claims are handled for mistakes and negligence by health care professionals that occur within its state lines.

Illinois Courts Changing Illinois Medical Malpractice Laws

And state legislatures don’t have the final say. Back in 2010, the Illinois Supreme Court reviewed the state’s medical malpractice statutes and ruled against parts of those laws.  Lebron v. Gottlieb Memorial Hosp., 930 N.E.2d 895, 237 Ill. 2d 217, 341 Ill. Dec. 381 (2010).

After the state’s highest court issued its opinion, medical malpractice victims hurt by doctor mistakes or health care errors in Illinois could get more damages awarded to them for some kinds of damages resulting from the malpractice than the lawmakers had provided.

Because of this Supreme Court decision, Illinois medical malpractice victims do not have a cap on the amount of “non-economic damages” that a jury can award to them. These are damages that cannot be proven with things like receipts or invoices. Pain and suffering, for example, is a type of “non-economic damage” that can be awarded without a cap to Illinois medical malpractice victims now.

This was such big news back then that it made the New York Times.  See, “Illinois Court Overturns Malpractice Statute,” by Kevin Sack; published on February 4, 2010.

And recently, in a case out of Cook County, Illinois’ First District Appellate Court ruled in a case of first impression on medical malpractice tragedies, where the patient dies (this issue has never before been decided by an Illinois court).  The appeals court ruled that if a patient files a medical malpractice lawsuit in Illinois and then passes away while their case is pending in the state courts, that patient’s family can continue the litigation based upon the medical mistake under the Illinois Wrongful Death laws.  Lawler v. The University Of Chicago Medical Center, No. 1-14-3189 (Ill. App. Ct. Mar. 25, 2016).

Deadlines to File Medical Malpractice Claims in Illinois

Lots of other medical malpractice statutes remain valid, of course. For instance, there is a law on the Illinois books that puts a deadline on patients who have been harmed by a doctor’s mistake or a hospital’s error (along with nurses, clinics, etc.).

Illinois’ Statute of Limitations sets a two (2) year time frame for medical malpractice cases. If the patient who was harmed is a minor, the child gets more time. Child who are victims of medical malpractice in Illinois get an extension.

The key here is figuring out when the Illinois time clock begins to run. The “2 Year Deadline” starts to run from: (1) the date of the injury itself; or (2) from the date it’s determined that the patient reasonably would have discovered they had been harmed by the malpractice. This can happen when the mistake isn’t easily felt or immediately painful to the patient, like when a surgeon leaves a sponge inside the body during a surgery.

There is a legal bottom line for medical malpractice cases in Illinois, too. If a claim for damages resulting from a medical mistake is filed four (4) years after the date of injury, then it is considered time barred under the Illinois medical malpractice statute of limitations.

Comparative Negligence in Illinois Medical Malpractice Cases

Here’s another important factor to know about Illinois medical malpractice law.  Illinois’ doctors and their insurance carriers are legally encouraged to investigate facts that suggest the patient is to blame for things.

That’s right: expect the doctor-defendant to finger-point at the patient who has been seriously injured and already dealing with the daily stress of a life-altering injury and all that comes with it — pain, rehab, etc.

This is because of the way that negligence law is structured in Illinois. The state law holds that if the patient can be shown to be 50% or more responsible for what’s happened to him, then he cannot be awarded malpractice damages. If the patient can be shown to be say, 30% responsible, then his award can be reduced by the percentage he’s considered to be the cause of his injuries.

Not all states follow this way of doing things, called the “comparative negligence” structure. Other states opt for a “contributory negligence” standard. The comparative negligence system is the version that the Illinois lawmakers preferred to use when they drafted and passed these laws.

Illinois Faces a Doctor Shortage

So, how are things in Illinois right now?  Last week, news reports from Illinois revealed that the state is facing a shortage of doctors to serve the public, and it has been a problem for over a decade.

One reason is because of the cost of getting that medical education and the need to pay off student loan debt. By specializing in practice areas, physicians can make more money and therefore better cover those debts. Since primary care doesn’t bring in the same revenue as a specialty, that means less doctors to practice in primary medicine as general practitioners.

In tandem with this, we’ve already posted on the rising trend of tele-medicine. That’s a whole new ball game of risk for medical mistakes, and a rising national trend because it eases the burden on the primary care physician.  See our post, “Telemedicine Malpractice in Indiana and Illinois: When Doctors Make Mistakes in Virtual Medical Care are They Less Liable?

This all means there are simply less doctors to serve the general public of Illinois now than in the past. It’s this very argument that is made by lobbyists to legislators for medical malpractice caps to be placed on damage awards. (An argument that has been successful in Indiana, for example.)

Illinois and Indiana Medical Malpractice

The reality today is that a patient who is hurt or killed in Illinois by medical malpractice will be able to be awarded a higher total damage amount than a patient with an identical injury who was harmed by a medical mistake in Indiana. This is because Illinois law recognizes medical malpractice awards of “non-economic damages” without a cap, or upper limit, and Indiana law does not.

Fair? Justice? The reality is that there are patients in both states that entrust their care to health care providers who harm them seriously, sometimes permanently, and even fatally — and laws in both states work to structure (and limit) their medical malpractice claims in specific ways. Courts can change things. Let’s all be careful out there!

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