Dwyer & McDevitt has experience representing Chicago clients who have suffered injury or the death of a loved one as a result of medical negligence in a wide range of settings. This includes cases involving emergency room care, nursing errors, surgical errors, obstetrical malpractice, and pharmacy errors. We have resolved medical negligence cases for our clients through a jury trial, mediation, and settlement.
What is medical negligence?
Medical negligence or “medical malpractice” involves a doctor, nurse or other healthcare professional failing to meet the “standard of care”. Professional negligence by a doctor, nurse or other healthcare provider is the failure to do something that a reasonably careful doctor, nurse or healthcare provider would do or the doing of something that a reasonably careful doctor, nurse or healthcare provider would not do under the circumstances.
These cases involve evidence regarding the “standard of care”. The plaintiff must present testimony from an expert, typically a doctor or other healthcare professional who practices in the same specialty as the defendant to establish not only what the standard of care is, but that the defendant failed to meet it and as a result, the patient was injured.
Do I have a case?
It is difficult to assess without medical record whether someone was the victim of medical negligence. The evaluation of a medical malpractice case must be thorough. It typically includes an evaluation of the medical records directly related to the care. In addition to those records, other supplemental records are often times necessary including records from well before the incident occurred. What specific records are required depends upon the nature of the case. In a case involving a surgical error, the documents associated with the surgery are critical. In a case involving nursing care, the nurses’ notes play an important role in assessing the treatment. It is difficult for an attorney to provide an honest evaluation of the likelihood of success without having the opportunity to read the medical chart.
In addition to the Chicago attorney reviewing the chart, it is often necessary to involve a physician to review the materials. The physician can then assist the attorney in identifying issues in areas of concern. The consulting physician may also be of assistance in identifying what additional records are necessary to assess the care.
Litigating a medical malpractice claim
Very few medical malpractice claims are resolved before litigation. These cases are often complex and the exchanging of written information and the taking of depositions is necessary for the parties to fully recognize their exposure and understand the errors in the medical care and the cause of the injury or death to the patient.
The lawsuit filed on behalf of the injured or deceased patient must involve a consulting physician. A report must be filed for each defendant. The written report must be from a physician licensed to practice medicine who is qualified by experience with the standard of care and must identify that a reasonable and “meritorious” cause for the filing of the action exists. This is designed to protect doctors and hospitals from “frivolous lawsuits.”
Statute of Limitations
An action for damages for injury or death against any physician, dentist, registered nurse, or hospital must be brought within two years from the date the claimant knew or should have known of the injury or death, whichever occurs first. In no event may an action be commenced more than four years from the date on which the allegedly negligent act occurred.
There is a separate limitations period for minors. An action for damages for injury or death against any physician, dentist, registered nurse, or hospital must be brought within eight years from the date of the act or omission complained of when the person entitled to bring the action was, at the time the cause of action occurred, under the age of eighteen years. In no event may the case be brought after the injured person’s twenty-second birthday.
Is there a claim against the hospital?
A hospital may be legally responsible for doctors or nurses who negligently treat patients. A hospital may be legally responsible for the negligence of its “apparent agent,” even if the negligent doctor was not employed by the hospital.
In order for an apparent agency relationship to exist, the plaintiff must prove that the hospital held itself out as a provider of complete medical care and that the plaintiff neither knew nor should have known that the doctor was an employee of some other entity, rather than the hospital itself.
The plaintiff must also prove that he did not choose the doctor personally but relied upon the hospital to provide the care. If the jury finds that the doctor was the apparent agent of the hospital and that the doctor is liable, then both the doctor and the hospital are liable.
If the patient knew the doctor before the hospital admission or has seen the doctor at the doctor’s office and then decided to see the doctor at the hospital, that doctor is not likely the apparent agent of the hospital. Oftentimes consent forms will disclose in small print to the patient that the doctor is not employed by the hospital. The language in those consent forms should be reviewed by a lawyer to determine whether an apparent agency claim can be made.
In addition to claims based upon the actual or apparent agency, direct actions of negligence can also be brought against the hospital. For example, if the hospital is negligent in credentialing a doctor who should not otherwise be allowed to provide the services that were provided at that hospital, the hospital may be liable. A hospital is not an insurer of a patient’s safety, but it owes the patient a duty of protection and must exercise reasonable care.
The hospital has an independent duty to its patients to review and supervise care. Whether or not the hospital has conformed to the standard of care may be proved by a wide variety of evidence including expert testimony, hospital bylaws, accreditation standards, customs, and community practice. These are additional issues which a Chicago lawyer will evaluate when considering a medical malpractice case.
We have experience at Dwyer & McDevitt handling a wide range of medical malpractice cases including claims involving obstetrical care, emergency room treatment, orthopedic care, cardiology, surgical care, and prescription errors. If you believe you or a loved one were the victims of medical negligence, contact our Chicago office to arrange a free consultation.