COVID-19 Notice: Malman Law’s staff is working at office & from home so that we can do our part to fight the spread of this virus within our community.

Learn more x
Free Consultations | Tap To Call Today: 1.888.625.6265

Speak to a Lawyer 24hrs a Day

1.888.625.6265

Free Consultation, Call Now!

Understanding the Complexities of Filing a Medical Malpractice Case

Schedule Free Case Review

Monday, May 22, 2017

Understanding the Complexities of Filing a Medical Malpractice Case

Experienced Attorney Helping Victims File Medical Malpractice Cases in Chicago

As a patient, you have the right to expect that your physicians treat you with expertise, competency, and out of your best interests. Unfortunately, that is not always the case. Medical errors happen, and more frequently than some would like to admit.

When you are the victim of malpractice, you might wonder what options you have available to you. One is that of a malpractice claim. Filing a medical malpractice claim is not as easy as it sounds. In fact, these types of cases are extremely complex. Therefore, it is best if you familiarize yourself with how they work, the issues that you will face, and what you can do to improve the chances of a successful case.

Dispelling the Myths of Medical Malpractice

Before going into detail about the complexities, first, there is one important myth that must be dispelled. Any unfavorable outcome of a medical procedure or treatment does not automatically constitute malpractice. For example, if you were unhappy with the way your plastic surgery turned out, you still might not have a reason to file for compensation. To have a claim, you must meet the requirements for a viable case. Medical malpractice is often defined differently from state-to-state, which only makes matters more difficult. If you intend to file a malpractice case in Illinois, it is best that you consult with a medical malpractice attorney in the area.

The Issue of Medical Errors

You go to hospitals and physicians because you trust them. You know that they have completed years of school and countless hours of training; therefore, they should be more than qualified to diagnose and treat. Sadly, hospitals and other health care providers do not always adhere to the high standards required of them. In fact, there are instances where they blatantly ignore those standards. When this happens, a patient could suffer an extreme injury – if not fatal results.

But, how do you define a medical professional’s negligence, and what is the standard of care that one must deviate from to qualify as a malpractice event?

Exploring the Numerous Complexities of Malpractice Claims and What You Can Do to Overcome Them

1. The Requirements of Malpractice

To have a viable malpractice case, you must meet several basic requirements. These requirements include:

  • The existence of a doctor-patient relationship. You must prove that the physician you are suing has seen and treated you. If your physician consulted another, but that other physician did not physically see or treat you, his or her advice (even wrong advice) does not constitute the doctor-patient relationship required. Also, a casual chat with a physician at the dinner table is not a doctor-patient relationship.
  • Deviation from the standard of care. We will dive into this more in a moment, but you must show negligence, which is a deviation from the standard of care.
  • Negligence is the direct cause of your injuries. Furthermore, you must establish that the physician’s deviation from the standard of care was the direct cause of your injuries.
  • Negligence led to damages. Lastly, there must be damages. Damages can include lost wages, physical pain, mental anguish, medical costs, and so forth. You cannot sue a doctor for malpractice, even if he or she was negligent, if there were no damages associated with the negligent act.

2. What is the Standard of Care?

One term that will come up frequently during a malpractice case is the “standard of care,” but what does that entail? To determine if a physician was negligent, you must prove that the defendant, the physician, breached the standard of care. This means that the duties and responsibilities in terms of conduct fell below what others in the same field would expect as the “acceptable” level of care. Essentially, the physician ultimately must have performed worse than another physician with the same qualifications and experience would have in the same situation.

For example, say a physician made an incorrect diagnosis. However, you kept information from the physician. In this scenario, the physician cannot be liable for the wrong diagnosis, because he or she would not be expected to diagnose without correct information.

In another example, say you gave the doctor all of the information, and the physician still came to the incorrect diagnosis because he or she failed to perform an in-depth examination or review laboratory tests that would have revealed a different diagnosis. In this instance, you have a claim against the physician, because he or she ignored the obligation to care for you, and then came to an incorrect diagnosis.

3. Different Scenarios Leading to Various Outcomes

Another issue for a malpractice case is the type of malpractice. There are different errors that might lead to different types of malpractice claims. These errors, while malpractice, have different requirements. Sometimes, more entities than just the physician are responsible in a certain type of malpractice case.

Common types of malpractice claims include:

  • Prescription errors. Prescription errors come in numerous forms. A physician might fail to review your history and prescribe a medication that dangerously interacts with one, or could prescribe something that you are allergic to. Other times, the physician’s instructions were unclear, forcing the pharmacy to dispense medication with the wrong amount, dosage, or instructions.
  • Misdiagnosis or delayed diagnosis. There are instances where the diagnosis is entirely wrong, while other times the physician eventually reaches the correct diagnosis after the damage is done.
  • Failure to obtain informed consent. With every medical procedure, there are risks. It is a physician’s legal obligation to his or her patient to get the patient’s informed consent – which means informing the patient of all options, risks and benefits, and dangers of skipping the treatment.
  • Improper treatments used. The diagnosis might be correct, but the physician uses unorthodox treatments or medications in a way that they were not intended to be used.
  • Unnecessary procedures and treatments. Other times, a physician engages in overly aggressive treatments – with instances of unnecessary procedures or treatments performed on the patient. In this case, the patient could suffer unnecessary medical expenses, pain, suffering, and mental anguish.

Unique Challenges in a Medical Malpractice Case

There are unique challenges that can occur in a malpractice case. Even when you have evidence that proves the above-mentioned issues, it still can be difficult to prove and win the case itself.

First, your attorney must hire experts – often more than one. These experts cost your case money, and you must find experts who can not only corroborate the evidence but who can testify that your physician’s actions deviated from what should have been done.

Furthermore, these cases might take longer than one expects. This is because it takes time to sort through medical records, locate witnesses, interview experts, and so forth. Negotiations will go back and forth during this timeframe, but they are not always successful. A malpractice case might take as little as one year or as long as five to six years.

Do not let time discourage you, however. There are ways to pay for your costs while waiting for your settlement. Your attorney will also ensure the other side is not unreasonably delaying your case so that you are desperate to take any settlement offered.

The Statute of Limitations

There is a statute of limitations for a malpractice case, and the sooner you bring the complaint, the easier it is for your attorney to find evidence. The statute of limitations is essentially a clock. If you pass the limitations, you can no longer seek compensation, regardless of how powerful the evidence is.

The Exception to the Statute of Limitations

As with all rules, there are exceptions. The statute does not begin until the date of discovery. Therefore, if you do not discover that you are a victim of malpractice for six years, then the clock does not start to count down until then. However, the statute clearly states that you must “reasonably discover.”

The Affidavit of Merit

Before you can file your medical malpractice claim, the courts require that you obtain an Affidavit of Merit. This is a professional review by a doctor that certifies that negligence occurred. This might be difficult depending on the type of malpractice claim you have. The doctor who certifies your claim must be in the same specialty as the one you are making a claim against. If the physician you are making a claim against comes from a rare specialty, finding a physician to certify becomes difficult, but not impossible.

The Introduction of Multiple Parties

Another complexity is the multitude of parties that might be involved in your case. For example, a doctor can make an error that might also include their employer (i.e., the hospital). Your attorney can examine the facts of your case and decide how many parties might be liable.

Contact an Illinois Medical Malpractice Attorney Today

While these cases are complicated, they are not impossible. Therefore, your best chance for a successful case is to speak with a malpractice attorney as soon as you realize an error occurred. Call the personal injury lawyers at Malman Law today for a free, no-obligation consultation or send a message online.

Related Posts

Why People Choose Malman Law

You’ll want your lawyers to be this good.
You’ll want our experience on your side.
  • Icon

    Credibility & Experience

    25,000+ Cases over 25 Years
  • Icon

    Track Record of Success

    25,000+ Cases over 25 Years
  • Icon

    Team of Litigation Lawyers

    25,000+ Cases over 25 Years
  • img

    They area very helpful and when it come to getting things done with your case I had the pleasureof working with Jason Kellerman he was awesome I highly recommend them.

    - Britany Weaver

  • img

    I’m very pleased to recommend Malman Law to my friends and relatives! I have to mention how efficient and professional in dealing with my case has been with everyone that I’ve been in contact with at Malman Law. Mrs. Sabo is outstanding as well as her secretary and assistant in responding quickly to any of my questions or concerns. This firm has gone above and beyond to keep me updated and get answers to my questions at any time, weekends included! Malman Law rules in my opinion!

    - Cheryl Wagemann

  • img

    I’ve been knowing about this Law firm for many years through friends, referrals & advertisements , never I thought I would need their services , because I believed things & situations don’t happen to me like this , long story short I was in situation that I needed help & advice!!! The right direction , I connected with the Firm & a very patient , understanding professional woman by the name of Margie assisted me in what I needed 🙂 Thank you I will refer as I was as referred as well This firm really does care !

    - Elvira G.

  • img

    I was rear-ended by a semi-truck on my way to work. I was transported to the hospital and my car was totaled. In the aftermath, Dan Petrich and Anna Schmidt from Malman Law helped me get set up with physical therapy and negotiated with the insurance companies to make sure the resulting settlement would cover my medical bills and a rental car until I could get a new car. I would highly recommend their services.

    would do everything they could for me.

    - Tony S.

  • img

    I contacted Malman Law go my work injury. So professional from my first phone call. Mr. Malman’s investigator, Dan, came right out to our home. Everything was explained in detail so I know what to expect during this process. I certainly recommend anyone ever in need of a personal injury lawyer to call Malman Law. Truly the best!! Thanks everyone!

    - Devin Jones

  • img

    Attorney Greg Lamorena was my lawyer when I slipped and fell. He kept me updated throughout the case and was always available to talk when I had questions. He is a great lawyer and could not be happier about my settlement!

    - Annie Ong

  • img

    Alexis was the attorney on my case! She kept me in the loop about everything with my case. If I had any concerns I was able to contact her and she’ll answer my questions right away. If your interested in working with Malman Law I would highly recommend Alexis she was GREAT. I would highly recommend Malman Law if you’re ever in need!

    - Eugenia Cathery

  • img

    They are so efficient and professional.Always available to help.Attoney Boyer was great and very good with my case.I really appreciate mailman law firm. I gave them 5 star because there is nothing higher.

    - Omolewa Snyder

  • img

    I have had an amazing experiences with Malman law so far. From the start Dan was super easy to work with, got me the medical attention I needed and fast. Couldn’t ask for better communication. Neil Kilcoyne has been nothing but the best I could not recommend a better attorney. Malman Law is a 10 out of 10 law firm.

    - Trevor Harris

  • img

    Hi I just want to acknowledge Jay McCarron, Kelly & the Firm at Malman Law for representing me as they continue to work on my case. Thanks for keeping me updated & responding quickly to any of my questions or concerns. I would Highly recommend you and your firm to friends & family. E. P.

    - Ernest Pitts

  • img

    Alexis was the attorney on my case and she was GREAT. She made sure I was updated on everything about my case. I would highly recommend Malman Law if you’re ever in need.

    - Ariel Fleming

  • img

    I had the best experience with Jason and Jay attorneys from Malman Law they really went all the way to settle my case I’m telling you there just the best!! Recommend 100%!

    - Carmen Rivera

  • img

    Adam Meadow acted as the attorney for a family member who was in a car accident. He was highly personable and actively listened to our issues throughout the litigation process. He was able to get us a settlement for the repairations of the accident. We would recommend their services!

    - Greg Gustafson

  • img

    Excellent customer service and great experience. Malman law handled the whole process and it was very smooth. The settlement was a great success. I would choose malman law again in the future.

    - Malak St.Clair

  • img

    Helped me out of a big jam when my auto was hit twice when and the other drivers had no insurance. Adam Meadow is the only Lawyer I will call for helping me an my daughter.

    - Devri Lott

  • img

    I cannot give enough praise to the team at Malman Law, for helping with my case . My children were involved in a auto collision and the attorney Adam along with his paralegal Michelle worked diligently until the matter was resolved and my entire family was happy. I would definitely recommend Malman Law for anybody going through legal troubles.

    - Adrian Lopez

  • img

    A close friend recommended me to Malman Law. I currently have a case with them due to a car accident I had and ever since the accident they have been taking care of everything for me without me having to worry about anything. They took care of the medical bills & helped me get physical therapy right away. I highly recommend them.

    - Vanessa Leon

  • img

    Bella Feinstein, Jason Kellerman, and Terry Davey, have been instrumental in helping me though many difficult situations. Not only did they work to get my mom a settlement, they have continued to help me through the legal process of relocating my mom to a different state. I’m very grateful for their hard work and good advice.

    - Nyah Vuljanic

  • img

    This law firm is the best they got me paid and meymen law kept in constant communication with me which meant a lot to me I would highly recommend this law firm to anyone who. In the position they are awesome sincerely. Jeff walker

    - Jeff Walker

  • img

    Mr. Kellerman of Malman Law shows compassion for his clients. Returns calls and emails promptly, takes time to listens to his clients and gather facts accordingly.

    - Steve Acosta

  • img

    Everyone at Malman Law made me feel welcomed and heard. My lawyer, Adam Meadow, as well as staff kept me up to date and were more than happy to do so! I would highly recommend their services. Also- a plus is many employees are fluent in Spanish. My experience was easy and worthwhile.

    - Adrianna Gomez

  • img

    Dan Petrich was the best man for my case of falling through my porch of a apartment I rented. He made sure I got what I deserved not only $ wise but medical wise and that my hospital bills and Dr bills were left at a $0 balance before closing my case. I was definitely happy and glad I choose him. Thank you. 5 stars

    - Jose Cruz

  • img

    Steve Malman helped me with my auto case. He quickly responded and answered any and all the questions I had. My case was a success as well as 2 other family members I recommended to him won their cases as well. Definitely a 5 star!

    - Meagan Cruz

  • img
    Malman Law goes above and beyond handling your legal injury case needs. From the first appointment through to the ending verdict my sister and brother in law were very happy with their case results. Highly recommended!

    - Eddie Villarreal

  • img

    I am very impressed with Malman Law and my experience with Tiffany Alberty. She was very professional and knowledgeable. I appreciate the great communication and never felt out of the loop. She was very patient and hard working on my case. I would highly recommend this firm. Thanks for the hard work and all your help!

    - Madissen Miller

  • img

    Malman Law is definitely professionals and skilled at what they do. Mr. Adam Meadow always kept me informed and never hesitated to answer my questions and was open to hearing my concerns. Wouldn’t think twice about referring them to family and friends. Thank you to all at Malman Law!

    - Christina Ocon

  • img

    Mailman Law, Excellent firm!! Tiffany Alberty and her assistant Margie Gallegos were super efficient and knowledgeable. Great communication—very quick response and great follow up! My case was resolved sooner than expected. I highly recommend them!

    - Adriana Martinez

  • img

    So glad I contacted malman law regarding my accident. Professional and caring. Thank you Mr Malman. I most definitely recommend to anyone if you need the best to call Malman Law!!!

    - Virgil Sanner

  • img

    I really appreciated and enjoyed Yennin Calderon’s service. I called asking questions and she was so helpful. Not only did she answer all my questions and concerns. It was also a bonus that she was bilingual in Spanish! Loved the warmth she brought. Thank you!

    - Jazlyn Caraballo

  • img

    My experience with Malman Law was great. I worked with Attorney Tiffany Alberty and her assistant Margie. Both communicated what was going on with my case, explained next steps and got my case to resolved early. I would highly recommend Malman Law.

    - Ashley Jenkins

View more testimonials
img

What’s your case worth? Submit for a free case review

ALL FIELDS REQUIRED

2 years ago I was involved in a trucking accident involving a 14-wheeler truck that nearly disabled me for life. Steve fought to make sure that I received the most possible compensation for my injuries. I was about to take the insurance company’s lowball offer, but decided to call Steve first – it was the best decision I’ve made yet

NOAH TAFFELPersonal Injury Victim