Can You “Afford” to Sue For Medical Malpractice? Yes!
Let me start this post by saying that I’m not a Tumblr user, but once in a while, something comes out of that site and into the rest of my social media that gives me pause. This, in particular, is one I hope hasn’t made too much of impact because it’s just chock full of misinformation. Also, unfortunately, too many people get their ideas about litigation and their right to pursue justice in the civil court system from people who don’t know about a thing about it but aren’t deterred from flapping their gums anyway. I think that lawyers have an obligation to inform or at least to mitigate the pervasive misinformation campaigns in all media, and especially the ones rife on social media.
As a personal injury and medical malpractice lawyer, I’m not shocked that there are people who think this nonsense is true. After all, most people get their ideas about litigation, the practice of law, and the court system, from television and film. In entertainment, what is factual seems to take a backseat to what is entertaining. This why people actually think you can actually have a surprise witness waltz into the court in real life, or just introduce new evidence at the last minute, or start yelling at opposing counsel in court as if that’s actually what trial lawyers do.
And there are people who don’t apparently know that plaintiffs don’t have to pay out-of-pocket to sue for personal injuries. It does a disservice to those who are currently suffering from medical malpractice or may in the future to be falsely lead to believe that justice is not accessible and that the curse of medical malpractice is that one cannot afford to be made whole again.
Let me break the spell for you:
You absolutely can afford to assert your rights. It’s not even a question of whether you can afford it.
What is Medical Malpractice?
Medical malpractice, more formally known as medical negligence, occurs when a doctor or medical professional acts or failure to act appropriately during the course of a patient’s treatment. The action or inaction is not a normal practice among doctors in that field and/or in the medical community, and the action or inaction causes an injury that would not have happened otherwise.
Like all torts of negligence, the actor must have a duty to fulfill, must breach that duty, the duty causes harm directly or proximately, and the harm causes another an injury.
The actor must be a bona fide healthcare professional acting in the course of treatment.
Someone impersonating a doctor cannot be held liable for malpractice since they’re not supposed to practicing in the first place (though they can be held liable for battery, fraud, and other unlawful acts). Likewise, a doctor or other healthcare professional must be acting within the scope of their employment in treating someone; getting into a car accident with a nurse is not medical malpractice, nor is it medical malpractice if your doctor’s golf club slips out of his hands and hits you when you’re on the green.
Medical Malpractice is Unlawful.
Medical malpractice is a civil wrong, but it is not illegal: it’s unlawful. There’s a difference.
Sometimes, it can be confusing whether something is unlawful or illegal.
Something that is illegal is a crime, and there are statutes forbidden the actions. It can be punished by a criminal court by fines or imprisonment. Crimes are wrongs against society, even if they are directed toward an individual. Something that is a crime against society is wrong all the time, no matter what circumstance or persons involved. For example, stealing is always a crime. Killing is always a crime.
Something that is unlawful is wrong, and it can be punished by awarding damages or other non-penal remedies in a civil court. Medical malpractice, personal injuries, contract disputes, and the like are dealt with in civil court.
Unlawful behavior is a civil wrong, in that they are wrongs against individuals. For example, it is not wrong to give someone medication; it is wrong to negligently give someone medication that could be contraindicated because of another drug the person is known to be taking. It is not illegal to pass someone on the right when driving on the highway. It is wrong, however, to do so without looking so that a car accident occurs. It is not illegal to do a purposely do a bad job when painting someone’s house, but it is a civil wrong to keep the money you were paid for doing a decent job of painting the house.
Sometimes, an act can be both a crime and a civil wrong. For example, the crime of murder or manslaughter can also be the civil wrong of wrongful death. The crime of larceny can also be the civil wrong of conversion. Fraud can be criminal and civil. Battery and assault can also be both criminal and civil.
Medical malpractice, like all malpractice, is largely a civil wrong (though sometimes, the acts can also be criminal). It’s not malpractice to pull a tooth; it is malpractice to pull the wrong tooth because the dentist didn’t read the chart correctly. It’s not medical malpractice to deliver a baby via C-section. It is medical malpractice to pull the baby out in such a way that it severs the nerves in the baby’s shoulders. The remedy for medical malpractice is to sue.
Medical Malpractice Happens More Often Than It’s Reported.
Only about 2% of all lawsuits filed each year in state court are for medical malpractice. Only about 5% of those medical malpractice lawsuits make it to trial, as the other 95% of lawsuits are settled. However, medical errors are the third leading cause of death in the United States.
My Doctor Made a Mistake. Is that Malpractice?
In short, no. Mistakes aren’t malpractice in and of themselves. However, is the mistake is due to the doctor failing to meet the standard of care, and if the mistake causes you injury, then it may be malpractice.
Medical Malpractice Claims Are Not Frivolous Claims Filed for a Quick Buck.
Contrary to popular belief, medical malpractice lawsuits are not common, nor are they filed frivolously. A frivolous lawsuit is one that has no legal merit and is insufficient at law, or futile. A lawsuit is frivolous when the party filing it has reason to know that it has no merit, that there is no controversy to settle, or that the claim is insufficient.
In Illinois, every malpractice suit has to be filed with a “622” or Certificate of Merit. A Certificate of Merit is prepared by the plaintiff’s attorney swearing that the suit has merit because the facts of the case have been reviewed by a medical professional who has worked and/or taught medicine or healing arts in the same area of expertise that the injury falls under, and that the medical professional believes that the injury could be reasonably believed to have been caused by medical malpractice. The medical professional attaches a report to the certificate of merit, and it is filed with the complaint in state court.
Medical Malpractice Suits Are Not Jackpots.
As I addressed in a previous post, winnings of millions of dollars are not windfalls. Windfalls mean getting something for nothing, a good bit of fortune in getting something extra. However, when it comes to medical malpractice lawsuits, saying that the verdicts are windfalls is akin to saying that it’s a windfall to get all the money you will ever have in your lifetime all at once, or it’s a windfall that instead of having your beloved spouse, your mother, or your father alive and taking care of the family, you and the others left behind in grief and loneliness get some money instead. Or perhaps saying that winning a medical malpractice suit is a windfall is like saying that being able to now pay all the creditors who are threatening to take your house and everything you ever had is some sort of windfall.
That’s a really morbid outlook, don’t you think?
But imagine for a moment that you’re not sick. You don’t have an illness that will cost you your savings, or your ability to earn, or your ability to move. Say you go to the hospital for a routine procedure, but something goes very wrong. Or, perhaps you were administered the wrong medication or too much of a medication, and you ended up having a terrible reaction to it. Or, say your illness is misdiagnosed during the stage in which it was easily treatable, but you didn’t find out about it until it requires very costly, very intense and painful treatment.
How will you pay tens, even hundreds of thousands of dollars of medical bills, especially if you can’t work? What about your ongoing expensive medical care? How about your other bills and expenses?
Most people can’t.
The number one cause of bankruptcy in America is unpaid medical bills. This includes not only people who are victims of medical malpractice, but people who simply have a major illness.
However, You Don’t Have to Pay the Costs of Litigation Upfront.
Almost all medical malpractice attorneys don’t require you to pay the costs upfront. We work on contingency, meaning that you pay your legal fees only when you win or settle the lawsuit. However, if you don’t win anything, you won’t pay.
There’s good and bad to this. First, if you can’t get a lawyer to take on your case, it’s likely that the lawyer doesn’t think it has merit enough to win. The lawyer may not think that she can find a doctor who will complete a healthcare report for the affidavit the lawyer has to file in order for you to make a claim in court in Illinois. However, this doesn’t mean that you were not a victim of malpractice, or that you are not entitled to some compensation; it just means that what you would get is likely not more than the cost of litigation. For example, a very small injury that has not harmed you greatly will not likely win you enough compensation to cover the cost of litigation. You may be able to
However, if a lawyer thinks that you have a case of medical negligence, the lawyer will front the cost of litigation, which can go into the tens, and sometimes hundreds, in costs for litigation.
Why Do Medical Malpractice Cases Cost So Much?
Actually, all complex litigation costs a lot of money to litigate. Medical malpractice cases, for example, require the time and energy of medical experts, for whom compensation of their time is equivalent to what they may have made in a day working their usual medical job. For example, in a medical malpractice case of misdiagnosis of a rare cancer, the best medical expert could be a highly specialized oncologist who is an expert in that rare cancer, one of three in the entire country, and one who works in private practice and teaches medical school on the other side of the country. This person’s time will cost a lot of money.
Can’t you have someone less specialized and less expensive? Maybe, but keep in mind that the defense is going to use the best experts they can to defend their clients. Lawyers are obligated to do their best for their clients, whether they represent the plaintiff or the defendant.
Perhaps the best answer is that the reason complex litigation costs so much is because this is the trade off for living in a country in which the judiciary system respects and honors the rights of individuals. This is not only to the benefit of the plaintiff, but to the defendant, who has every right to defend themselves against the claims. Every case is different. There are unique sets of facts, unique claims, unique defenses, unique parties, unique injuries, and unique damages. A judge will make a ruling unique to that particular case if it goes to trial.
You Don’t Have to Do the Heavy Lifting. That‘s Your Lawyer’s Job.
You will have some work to do if you want to sue, namely that you’ll have to contact a lawyer, you’ll have to provide evidence or documents as needed, see a physician, and you may have to give testimony. However, the overwhelming majority of the work is on your lawyer’s shoulders. That’s their job. They’ll file suit. They’ll talk to the defense attorneys. They’ll put together your case. They’ll find the medical experts. They’ll prepare for a settlement or a trial.
What if I’m Too Sick to File a Lawsuit Right Now?
You have a few options. First, you don’t have to file a lawsuit the very minute that you find out that you’ve become a victim of malpractice. The statute of limitations in Illinois is two years from the time you discover the injury from malpractice and four years total from the injury. This means you have time to recover before filing suit.
However, it’s possible that someone could be too sick or too injured to even handle the work a plaintiff has to do. In that case, if the plaintiff is still of sound mind (meaning that they know and understand what they’re doing), they can grant someone else power of attorney to file a medical malpractice on their behalf. The person with power of attorney (the agent) will deal with the lawsuit and be the contact person.
What if I Have Health Insurance Already?
People sue for medical malpractice to “be made whole” again. They sue to be compensated for their losses so as to get back to normal — or as close to normal — as possible. However, it’s not unusual for those who sue for medical malpractice to have health insurance, home owner’s insurance, or even supplemental health insurance. However, this doesn’t mean that 1) that the insurance will cover the losses incurred by medical malpractice, or 2) that the insurance will pay for the losses.
In many cases, if not most, insurance providers will cover their insured for medical malpractice, but in turn, require that the insured sue whomever caused the injury. This is known as subrogation. The plaintiff is required to attempt to collect from the party that caused the harm in order to pay back the insurer.
For example, if someone incurs an injury that costs $200,000 in medical care, and the insurer pays it, it may require the insured person to sue the party that caused the injury in order to pay back the insurer the $200,000.
Why then, can’t the plaintiff simply keep the $200,000? First, the plaintiff has a contractual obligation to attempt to pay back the insurer by suing the party that caused the insurer to have to pay $200,000. Second, if the plaintiff gets $200,000 from the insurer and then another $200,000 from the lawsuit, the plaintiff unjustly gains compensation twice for the same injury. Now, the plaintiff can always be awarded more than the amount subrogated and can keep anything about what it owes their insurer. Of course, if the plaintiff doesn’t prevail in the lawsuit, the insurer doesn’t either, and the plaintiff doesn’t have to pay the insurer back.
Whether a plaintiff has health insurance, and whether that insurance has compensated them for their losses is inadmissible as evidence in court. The jury cannot hear about it, and the defense may not mention it, may not ask about it, and may not argue that the plaintiff’s insurance has covered the medical costs asserted. Thus, a jury cannot entertain the idea that the plaintiff’s insurance may or may not have covered the injuries when it’s determining whether to render a verdict for the plaintiff or how much to award.
I Think My Doctor Committed Malpractice, But I Don’t Have a Case.
Unless you’re an attorney specializing in medical malpractice or healthcare practitioner with expertise in whatever procedures your doctor did or was supposed to do, you probably don’t know whether or not you have case.
I mean this with all due respect. Most of the time when someone tells me a story that sounds like a prima facie case of medical malpractice but that they can’t pursue it, the reasons they give for thinking they don’t have a case are actually irrelevant, immaterial, or stem from a fundamental misunderstanding of what medical malpractice, negligence, and the duty of health care professional mean legally.
You may still have a case even if you weren’t a model patient. You may still have a case even if you agreed to a procedure that deviated from the standard of care and caused an unforeseeable injury. You may still have a case even if you got hurt by something else after the malpractice that caused the original injury.
Seemingly everyday words have very specific meanings in legalese. For example, you may consider your spouse negligent for falling asleep in front of the television or your teenagers negligent for not doing his term paper at the last minute. As a legal term, these things are not negligence. Negligence is not merely failing to do what is hoped for.
I have known of too many people who didn’t sue for malpractice under the false belief that they “didn’t have a case,” even though they may very well have had one. There are specific rules for determining if a medical error or accident was malpractice, and if so, if damages are recoverable. These rules may not be common sense to those who don’t work in civil law or litigation. Once the statute of repose passes, the chance to sue is gone, so it’s better to consult with an experienced medical malpractice attorney and let them determine if you have a case than to forgo the possibility all together.
Can’t I Represent Myself in My Medical Malpractice Suit?
Theoretically, yes, though no one actually does and gets anywhere. However, if you are independently wealthy and have all the time in the world to research, find, pay and retain experts and pay the costs of litigation, and you also have all the time in the world to learn the law AND the science to build a case so you have a fighting chance against a defense attorney who will definitely have a legal education, a legal staff, case law, and experts, then you could, theoretically, represent yourself. If you can also spend all your time building a case, doing depositions, sending interrogatories, going through discovery, researching, drafting, and filing motions as well as responding to motions by the defense, negotiating a settlement (and finding an expert to tell you what your losses are worth), and if that fails, choosing a jury and then conducting a trial by yourself, sure – you could, theoretically, represent yourself.
This also means that you would fully accept all the responsibilities of being your own attorney, and the court will not coddle you. They may help you only so far, but if you fail to respond to a motion, or a request to admit, or fail to appear, or to do anything a lawyer should know how to do and know they should do, you will not get a second chance. No one in the court will tell you how to find good law and use it. No one will tell you how to write briefs or motions. No one will tell you how to conduct a trial. No one will tell you how to do any of it.
If you knowingly break a rule, you could be sanctioned like any other attorney. If you fail to timely object to something that should not be admissible in trial, you don’t get to quash it later or bring it up on appeal. If you start talking about admiralty law, sovereign citizenship, the fringe on the flag in the courtroom and any other weird stuff, you may as well throw in the towel and voluntarily dismiss your case.
More importantly: your opposing counsel has a duty to vigorously defend their client, and they will not be easy on you if to do so would mean advocating less vigorously for their client. They don’t owe it to you to not take your inexperience into consideration, and they cannot help you. Don’t even think of calling defense counsel to ask them what their motion to dismiss means and what you should do next. The only appropriate answer would be to tell you to get your own lawyer. That’s all they are ethically allowed to do.
Think about it: if it were you, would you want YOUR attorney spending their time helping the person suing you make their case against you?
Okay, I Think I Was a Victim of Malpractice, and I Want to Know What to Do.
You should contact an experienced plaintiff’s medical malpractice attorney. A medical malpractice attorney can speak to you, determine if you have a claim, and if so, how to proceed so that you get the compensation you need to get back to normal or as close to it as possible. Your consultation is confidential.
Don’t wait. The statute of limitations on medical malpractice is two years in Illinois. This means two years from the time you discovered the injury. However, you only have four years total to file a claim.
If you think you may have been a victim of medical malpractice, call our office at 312-884-9163 to speak to an experienced plaintiffs medical malpractice attorney.