One of the most difficult decisions all top medical malpractice lawyers have to make is whether to accept a new medical negligence case. Every day, our attorneys speak with potential clients, many of whom have been permanently injured or deceased family members as a result of medical complications. They come to us with the same question: Do we have a case for medical malpractice? Our job is to distinguish injury or death caused by medical malpractice from “stuff happens.”
As lawyers handling cases involving medical malpractice, or the failure of a medical professional to adhere to the appropriate standard of care for their particular specialty within the medical community, we must work with imperfect information in deciding whether or not to accept a particular medical malpractice case. We are not doctors, and only a medical professional within the appropriate field of specialty can truly opine whether or not medical malpractice occurred. What we can use is our years of experience, our own internal review of the client’s medical records, and our common sense in advising potential clients whether or not they have a case.
However, simply because a patient was seriously injured or killed in the medical context does not necessarily mean there is a viable medical malpractice case. A plaintiff must prove three elements to prevail in a medical malpractice action: (1) the medical professional or institution (i.e. hospital) failed to adhere to the appropriate standard of care in the medical community; (2) the deviation from the standard of care caused the plaintiff’s injuries; and (3) the plaintiff sustained damages (i.e. injury).
A medical expert must give his or her opinion of malpractice before a lawsuit can be filed. As medical malpractice lawyers in Illinois, we must instruct our clients that even if we believe they have a valid case, we cannot even file a lawsuit alleging medical negligence without a sworn written affidavit (“2-622 affidavit”) from a medical professional (usually a doctor) within the appropriate field of specialty, giving his or her medical opinion that malpractice occurred. Our Illinois medical malpractice lawyers only retain the most qualified experts to review cases for our clients because we want an honest opinion from the best medical professionals whether or not there was malpractice, and because we know that the defense will retain another top expert to say there was no malpractice.
We must keep in mind, and explain to potential clients, that just because you or someone you love was seriously injured in the medical context, does not mean that there was necessarily malpractice. A doctor or hospital may have followed the appropriate standard of care, and an unfortunate result or known complication occurred. Even under the best medical care, bad things happen. This is why, as experienced medical negligence attorneys, we are so selective in choosing medical malpractice cases, and another reason why we only consult with the finest medical experts in the country.
Medical malpractice occurs when a medical professional, such as a surgeon or nurse, or a medical institution, such as a hospital, fails to provide the appropriate standard of medical care dictated by appropriate field of specialty within the medical community. Standards of care are typically consistent nationwide, but may vary by medical profession or field of specialty. For example, an emergency room physician or oncologist is held to a different standard of care than a resident nurse or family practitioner.
If you or a loved one has been injured as a result of medical error, it is important to contact an experienced medical malpractice lawyer to review your case. There are a number of medical issues that must be evaluated before filing a medical malpractice lawsuit.
Medical malpractice comes in various forms, such as improper or negligent treatment, failure to diagnose. and failure to warn a patient of known risks.
The most common type of medical malpractice falls under the category of improper treatment. This means that the medical condition may have been properly identified, but is improperly treated in violation of the appropriate standard of care. There are hundreds of examples of negligent medical treatment. For example, during labor and delivery, a doctor or nurse may fail to properly monitor the mother, causing the newborn baby to sustain brain damage due to a lack of oxygen to the brain (i.e. hypoxia). Or, a doctor may prescribe wrong antibiotic regimen for a classic bacterial infection, causing the patient to sustain catastrophic injuries that could have been avoided had the doctor followed the appropriate standard of care.
A second category of medical malpractice is failure to diagnose. Failure to diagnose cancer (breast, skin, lung, etc.) or delayed diagnosis of cancer is a classic type of malpractice that is all too common. For example, if a doctor orders a chest X-Ray, but does not also order an MRI if a cough or chest condition persists, as a reasonable doctor might, then the doctor may fail to diagnose lung cancer or other ailment that would otherwise be treatable. Such failure can be considered negligence.
Failure to warn, also known as negligent non-disclosure or failure to give “informed consent”, occurs when a medical profession fails to provide all the information to a patient before having the patient consent to treatment. The key element to this claim is what a reasonable person, if given all the information, would do. Potential clients should know that this type of malpractice is becoming almost impossible to base a case on, because doctors will typically include language in their medical reports that “informed consent” was given for almost every procedure, and it has become common knowledge that there are serious risks associated with most invasive procedures.
Medical care is meant to heal, not injure. When serious injury or death occurs as a result of negligent medical care, it is important to contact the best medical malpractice attorney, not only to help determine whether negligence occurred, but also to hold the proper parties accountable, and recover the compensation you and your family are entitled to under the law. At Passen Law Group, our attorneys have been fighting on behalf of victims of medical negligence in Chicago for over 30 years. Please give us a call with any questions.
Personal injury lawyers typically deal with statutory law, typically derived from common law. Occasionally, however, injury attorneys are confronted with Constitutional law issues, such as the following premises liability case dealing with the sexual abuse of students at a public school. A recent United States District Court opinion held that a school official who covers up the sexual abuse of students may be liable for the violation of the students’ right to due process. Sandra T.-E., et al v. Robert Sperlik, et al, No. 05 C 473, 2009 WL 2241807 (N.D. Ill. July 23, 2009). The district court denied summary judgment in favor of the defendants, in a case alleging that a principal in the Berwyn school district actively concealed the sexual abuse of a band teacher who molested several female students while he was working as a music teacher in Berwyn elementary schools. Still, the court did not rule on the merits of the allegations.
