If you suspect that medical malpractice is the cause of your illness or injury, you may be asking yourself, “what damages can I seek in a medical malpractice case?” You should consult a medical malpractice lawyer for help understanding what damages are available to you in your case. An experienced lawyer can explain the laws and help you recoup damages in a medical malpractice case.
If your injury or illness occurred after medical care in Illinois, contact Chute, O’Malley, Knobloch, and Turcy medical malpractice lawyers in Naperville. Call today for a free consultation, 630-412-4747.
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What Is Medical Malpractice?
According to Illinois law, medical malpractice is a legal cause of action taken when a healthcare professional or hospital causes injury, illness, or death to a patient. Under Illinois laws, medical professionals must provide their patients with an accepted standard of care to prevent harm. Medical malpractice is usually linked to patient harm when a medical professional deviates from the accepted standard of care for medical practices and procedures. Within the medical profession, the accepted standard of care is compared to the actions of other reasonably competent medical professionals with the same level of training. In Illinois medical malpractice cases, the law decides if a medical professional’s actions are acceptable by comparing them to the actions of other trained medical professionals and what they did under similar circumstances.
When reviewing damages in a medical malpractice case, Illinois medical malpractice lawyers look at five important factors to determine if there is cause for legal action:
- The duty of care the medical professional owed to the patient
- The likelihood of harm to the patient
- The consequences of harm to the patient
- Costs to the medical professional to prevent harm to the patient
- Ease with which the medical professional could have prevented harm to the patient
When patients suffer harm from substandard medical care, who can be held liable for medical malpractice? Under Illinois laws, certain parties can be held liable for patient injury, illness, and death when medical malpractice is to blame. Liable parties include:
- Medical clinics, surgical centers, and hospitals
- Doctors and surgeons
- Nurses and other healthcare workers
- Drug manufacturers
- Pharmaceutical companies
According to medical statistics, hospitals, doctors, and surgeons have the highest number of complaints of injuries and illnesses caused by medical malpractice. Under the legal doctrine of vicarious liability, hospitals are responsible for the actions of their employees including doctors and surgeons, nurses, and lab technicians, when they are acting within the scope of their normal duties. Additionally, hospitals, outpatient clinics, and urgent care facilities have a responsibility to operate safe, clean facilities to protect patients from injury and illness.
Doctors and surgeons who fail to provide the accepted standard of care expected of them are often sued for medical malpractice. Lawsuits against doctors and surgeons commonly involve injuries referred to as “never events” that cause significant trauma, injury, illness, or death to patients. Never events usually involve egregious medical errors like operating on the wrong patient, operating on the wrong body part, or leaving sponges and surgical instruments inside of patients. These types of errors are referred to as “never events” because they are never supposed to happen. When “never events” occur, they usually lead to serious patient injury and wrongful death, as well as substantial damages in a medical malpractice case.
What Are Compensatory Damages?
Compensatory damages are money awarded to an injured party that compensates that party for damages caused by injury, illness, death, or another incurred loss. Compensatory damages are awarded in civil court cases where the victim’s loss has occurred as a result of the negligent or unlawful conduct of another party. To receive compensatory damages, the injured party (the plaintiff) must prove that a loss occurred and that it was directly attributable to the responsible party (the defendant). The plaintiff must also be able to quantify the amount of his or her loss in the eyes of the civil court jury or judge.
Compensatory damages are broken down into two types – economic damages and non-economic damages:
Economic Damages
Economic damages are intended to provide the monetary amount necessary to replace what was lost and nothing more. These damages are awarded for medical expenses such as hospital and emergency room visits, doctor visits, lab tests, prescription medications, and loss of income and earning capacity. Economic damages may also include:
- Ambulance expenses
- Transportation expenses
- Domestic service expenses
- Medical equipment costs
- Rehabilitation costs
- Physical therapy costs
Non-Economic Damages
Non-economic damages include estimates of loss, not actual monetary expenditures. Since these damages are estimated, some courts use the “multiplier method” which calculates general damages by multiplying the total of the plaintiff’s actual damages by a number that signifies the seriousness of the injury. In some jurisdictions, courts may use the “per diem” method, which attaches a dollar value to each day a plaintiff suffers and adds the value of all those days together. Some damages in a medical malpractice case may be calculated by a combination of these methods. Non-economic damages may include:
- Disfigurement
- Mental anguish
- Future medical expenses and lost wages
- Long-term physical pain and suffering
- Loss of consortium
- Loss of enjoyment of life
Damage Caps in Illinois
Until 2010, Illinois imposed damage caps on non-economic damages in medical malpractice cases. Victims could only claim up to $500,000 for pain and suffering against a medical professional. If a claim was against a hospital or medical facility, victims could recover up to $1 million in non-economic damages.
Currently in Illinois, damage caps are not imposed on medical malpractice claims. In all medical malpractice lawsuits filed after 2010, victims have the legal right to recover compensation for the full value of both actual and general damages. If a patient dies from medical malpractice, Illinois laws permit the patient’s family members to file a wrongful death lawsuit on the patient’s behalf to collect both economic damages and non-economic damages.
Does Illinois put damage caps on medical malpractice lawyer fees? In Illinois, medical malpractice lawyers are limited to charging 33 1/3% of the first $150,000 recovered in a medical malpractice case, and 25% of the next $850,000, and 20% of any damages awarded to the patient over $1 million.
Are Punitive Damages Available in a Medical Malpractice Case?
Currently, Illinois laws do not allow victims or their family members to recover punitive damages in a medical malpractice case. Unfortunately, it doesn’t matter how long a medical malpractice case takes, what types of injuries occur, or even if medical negligence causes a patient’s death.
The current medical malpractice statute only addresses punitive damages for wrongful death and survival actions. For these types of actions, plaintiffs are required to file a motion to take leave of the court and have a hearing to plead their claim.
Filing a Medical Malpractice Claim in Illinois
When you file a medical malpractice lawsuit in Illinois, you have a limited amount of time to file for damages. This deadline is referred to as the statute of limitations. In Illinois, the statute of limitations for medical malpractice cases is two years after the date when the patient became aware of his or her injury caused by medical malpractice. If the patient does not file his or her lawsuit within the two-year statute of limitations, Illinois courts may dismiss the case.
If a patient does not discover his or her injury right away, the patient has up to four years after the medical malpractice injury or illness occurs. After four years pass, the patient loses the legal right to file a lawsuit.
If a patient is under 18 years of age when his or her medical malpractice injury occurs, the filing deadline is extended to 8 years instead of 2 years from the date of the injury. However, when the patient reaches 22 years of age, the claim can no longer be filed with the court.
Court Trial vs. Settlement
Because court trials are complex and can take up to four years to resolve, the majority of medical malpractice cases are resolved through out-of-court settlement agreements between medical malpractice lawyers and insurance companies. Medical statistics show that 96.9% of successful medical malpractice claims are settled out of court. Before you decide, talk to a medical malpractice lawyer who can review your case and explain the pros and cons of a court trial vs. an out-of-court settlement agreement. Every case is different, and damages in a medical malpractice case can vary significantly depending on patient injuries. It’s best to get legal advice from an experienced lawyer who regularly handles medical malpractice cases.
If you are a victim of medical malpractice in Illinois, contact us for a free consultation to discuss your case. Call us today and talk to our Naperville medical malpractice lawyers at 630-412-4747.