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Medical Malpractice Attorney FAQ

Clifford Law’s medical malpractice lawyers answer your questions

Susan Capra, a partner at Clifford Law Offices in Chicago, is here to share her expertise as a medical malpractice attorney. Susan is also a registered nurse and has combined her medical knowledge with her legal education to help those who have been injured by healthcare professionals. She understands the highly complex processes necessary for medical malpractice lawyers to put together a successful medical malpractice case.

We asked Susan to answer your medical malpractice attorney FAQs:

What is medical malpractice?

Susan:  Medical malpractice is a cause of action for damages against a health professional or a hospital, and the vast majority of medical malpractice litigation is grounded in negligence.  The elements of a negligence case for medical malpractice are the same as the elements for any other type of negligence action.  In medical malpractice, the plaintiff or the patient must prove that the doctor owed him a duty and that the doctor failed to exercise the skill or care of a reasonable doctor or breached the duty and that damages were proximately caused by the breach of that reasonable standard.  The primary difference between a medical malpractice action and another negligence action is that an expert usually must testify to establish liability and proximate cause in the medical malpractice context.  So in a medical malpractice case, the plaintiff’s attorney will need to hire an expert who is a physician like the defendant doctor to review records and to determine if malpractice has occurred.  If malpractice is found, that expert physician must testify that the defendant doctor committed malpractice and that the malpractice caused the plaintiff’s injury.

What do I need to prove to be successful in a medical malpractice case?

Susan:  To prevail in a medical malpractice case against a physician, the plaintiff or patient must prove four distinct elements: Duty, a breach of a duty, proximate cause and damages.  And if any of those essential elements is missing, the plaintiff will not prevail.  It’s the plaintiff who has the burden of proof in these cases.  I can address each one of the elements separately.

Duty actually refers to the legal relationship between the plaintiff and defendant.  In a medical malpractice case, the duty requires that the healthcare provider delivers healthcare in accordance with the standard of care.  So a relationship must exist before the duty arises.  Thus, in a medical negligence situation, a doctor/patient relationship must be established before this duty arises.  Once there is that physician/patient relationship, the defendant doctor becomes legally accountable for his or her actions.  Now, you may ask what is the level of conduct to which a healthcare provider is held or what is the standard of care?  A doctor is required to possess and apply the knowledge and use the skill and care ordinarily used by a reasonably well-qualified physician in the same or similar circumstances.  It’s a standard of reasonableness.  And a plaintiff or patient must introduce evidence at trial to demonstrate the standard of care.  And how do you introduce this evidence?  This is where that expert witness comes in.  You need to hire an expert witness to review the case and then that witness must come in at trial and testify as to the standard of care and that it has been breached.  The expert must have qualifications and expertise very similar to that defendant doctor.  The expert testifies about the standard of care at trial and the expert also testifies that the defendant’s conduct fell below that standard of care.  Now, you can establish standard of care not only with an expert witness but you can look to other sources as to what is reasonable conduct by a physician.  Sometimes documents are used to help define the standard of care.  For example there might be practice bulletins or guidelines that are published by professional medical organizations that may help define the standard of care.  In a case against a hospital, you can look the hospital’s policies and procedures.  Obviously, they should reflect the standard of care.  You can look to medical text books or articles as to what is reasonable conduct for a doctor in a given situation.  And sometimes, there are statutes that actually define the standard of care.  For example in Illinois, there is a duty after a baby is born to instill eye drops in the eye to prevent a certain eye disease.  So that is a practice or standard that is dictated by law.  So you can try and define standard of care in all of these different ways but the most common way is with an expert witness.

The second element is breach of duty.  Once the expert establishes the standard of care, the plaintiff must also show that there has been a breach in that duty.   And a breach of that duty can either be an act or an omission.  And it must be a foreseeable breach.  Expert testimony, policies and procedures and all of the other things that we discussed can show a breach in the standard of care.

Another important element is proximate cause or causation.  There must be a direct relationship between an alleged negligence and the plaintiff’s injuries.  As a direct and proximate result of the acts or omissions of the defendant, the plaintiff must have sustained an injury.  The defendant will be found liable for injuries to the plaintiff because the defendant performed negligently, and there has to be that causal connection.

Causation is also proved by expert testimony and this may be a difficult element for a plaintiff to prove in a medical negligence case because there may be other explanations for the patient’s injury.  Many times in these cases, proximate cause is the big defense.  A defense attorney will argue that nothing the doctor did or did not do caused the patient’s injury —  it just happened, it would have happened anyway.  So proximate cause is a big defense.

At Clifford Law Offices, I work on a number of cases that involve babies.  Cases where babies have been injured as a result in the delay of performing a C-Sections or an improper delivery.  And in these cases, proximate cause is always the big defense.  For example, the defense attorney will say that the brain damage may be due to a problem with the placenta or the brain damage in the baby may be do to some genetic problem or an infection during the pregnancy with the mom or the baby in utero.  So proximate cause is a very important element and it is a way that a medical malpractice case is defended.

And the final element is damages.  The plaintiff must prove that they have sustained an injury or damage.  And in Illinois damages fall into to basic categories.  The first category is economic damage and the second is non-economic damage.  Some of the elements that a plaintiff may be compensated for include past and future medical care costs, lost earnings, past and future pain and suffering, past and future disability, disfigurement.  So an example of an economic damage would be lost wages or past medical bills.  And example of a non-economic damage would be pain and suffering.  One distinction in Illinois that is kind of unique to medical malpractice cases is that you cannot sue for punitive damages.   Often you hear in product liability cases where a manufacturer or company can be sued for punitive damages.  That is not an element that is recoverable in Illinois in medical malpractice cases.

Should I consider a medical malpractice lawsuit if I have had a bad result?

Susan: It depends; a bad result may or may not indicate medical malpractice. Simply because a patient experiences a complication, that does not necessarily mean that there has been malpractice. A bad outcome may be what prompts the client to contact an attorney, but further investigation needs to be done to determine if in fact there was malpractice. The only way to truly know if a bad result or a complication is due to medical malpractice is to consult an attorney with experience in this area. The attorney will then do an investigation and have the matter reviewed by a competent expert. And that truly is the only way to know if you have a medical malpractice action.

Another point that I would like to make is there has to be some level of serious of permanent injury in these cases because these cases are very hard to prosecute and very expensive to prosecute. So the injury must merit going forward with the suit. For example, a doctor can prescribe a wrong medication and you can take that medication and maybe feel dizzy for a couple days, but there is no serious permanent injury. In that case, we would advise against filing that suit. While the doctor may have not complied with the standard of care, there is not a damage of a sufficient quantity there to merit a lawsuit.

How do I know if I have been the victim of a medical malpractice and to proceed in contacting a medical malpractice attorney?

Susan: You may not know. It’s very, very rare for a doctor or a healthcare provider in a hospital to come forward and admit an error. That has not happened often in my experience. I know that there is a movement now among some healthcare institutions where they are encouraging doctors to admit errors and to actually say I’m sorry to the patient. And I think that’s a good thing. While saying I’m sorry and acknowledging an error may not prevent a lawsuit, I think it takes some of the emotion and anger out of the situation. But very rarely will the patient be told that malpractice has been committed. Sometimes a nurse or therapist will make a comment to a patient. We’ve had clients at Clifford Law Offices who have actually gotten an anonymous phone call from nurses at the hospital where they have been told to consult an attorney, something happened. Sometimes a treating physician you will see after the malpractice, a new doctor will make a comment. We have had situations where subsequent treating physicians have told our clients, you should consult a lawyer. Sometimes it just doesn’t feel right and needs to be investigated. But again, the only way to really know if you have an action for medical malpractice is to talk to an experienced medical malpractice attorney and have the case evaluated. The way it would be evaluated is through an expert who will decide if the case is meritorious.

What are some examples of medical malpractice?

Susan: There are many examples. Certainly more than we can talk about here, but a real common type of malpractice case is a failure to diagnose. Think of a cancer case. A woman will go to a doctor with a breast lump and the doctor will diagnosis a cyst and it turns out in retrospect that that truly was a breast cancer. And the delay in diagnosing the breast cancer has a negative impact on the patient’s prognosis. Now, sometimes a misdiagnosis can result in a medical malpractice lawsuit. Think of the example of a patient who goes to a doctor with cold symptoms. The doctor may think well, this is bronchitis and it turns out that it was truly pneumonia and a chest x-ray was not done and the patient subsequently dies. Another type of malpractice is a surgical error. We have had cases where the wrong side of the patient’s body was operated on or a blood vessel is injured during surgery or a nerve is injured during surgery. Getting an infection in the hospital can be malpractice if proper sterile techniques were not followed in the hospital. In an infection case, often times infections are not promptly diagnosed and treated. Another common type of medical malpractice case deals with medication errors. Sometimes you will get the wrong medication or the wrong dose. Those are the big areas of medical malpractice.

If I think I have been a victim of medical malpractice, what should I do?

Susan: I think it’s a good idea to begin documenting. Document what happened. Document everything that happens after the malpractice. Dates of surgery, lab results, if you have a CT scan, the results of the CT scan. Document the names of the doctors, nurses, and other healthcare providers involved.

Do medical malpractice lawyers need a document of times and places of conversations?

Absolutely. And you may ask, why do you want to document? I think it helps you remember things if a lawsuit is filed in the future. You have the facts down. It will also help you explain your case when you do consult with an attorney and it also can help you explain your condition and case to a doctor that may treat you as a result of the malpractice. So documentation is very important.

The second thing that I would recommend is that you ask questions. Don’t be afraid to ask questions and don’t be intimidated. So many of our clients come to us because they want answers and they haven’t been given answers. You don’t have to be hostile but be direct. Just ask why did this happen? How is this going to be fixed? What’s the treatment plan from here on out? I also recommend if you are having those types of conversations, and you suspect malpractice, to maybe have a family member or friend in on those conversations. Sometimes it helps to have an objective person in on the situation to listen. They might think of questions that you are not thinking of to ask. Over the years, I have had clients come into the office and I will ask them what were you told about why your loved one died. And they will tell me, I was told he had a cardio-pulmonary arrest or he died of a cardiac arrhythmia. In reality, everybody is gonna die of a cardiac arrhythmia or a cardio-pulmonary arrest. When I ask them what did they say caused that, they didn’t ask that question. If you have an objective third party, you know, two heads are better than one. Perhaps more questions will be asked that will shed some light on the situation.

Another very important thing to do is to request a copy of your medical records. You want to get a copy of those records before there is any editing or alterations that might happen. Unfortunately, alteration of medical records does occur when there has been a bad result. Sometimes lab results are lost, the chart can be lost, entries are altered, additions are made. It would be much easier for your attorney to detect these alterations if you get a copy of the records close to the time the malpractice occurred.

I worked on a case in the office a number of years ago where a lady was having some problems after surgery and she became friends with the receptionist in the doctor’s office. She said, can I get a copy of my medical records, I’d like to get a second opinion and the receptionist said sure and copied the three little pages of her medical records. She then did consult with an attorney who requested the records from the doctor and the attorney received a set a medical records that were quite larger and had many additions. This attorney did not do a lot of malpractice and referred the case to our office. I ordered another set of medical records from the doctor by an authorization and got more alternations and additions. Once the case was filed, I asked the defense attorney, can you please give me a copy of your client’s records. And the records got even better. A large volume of records, derogatory comments were added about my client, so, you know, that doesn’t happen very often, but that’s an extreme example of alterations in medical records.

Is it a good idea to know when I saw a doctor and have my medical records on hand?

Susan: I think it’s a very good idea because even if you have to go to the hospital unexpectedly, you will have some records. With my own family members, I keep a little file and every time we go to the hospital, I take that file with me. A list of medications, list of visits, almost like a chronology. It’s very helpful.

If you suspect you have been a victim of medical malpractice, you might want to seek a second opinion or transfer your care to a different healthcare provider. That new doctor might not so focused on the malpractice. I would hope they would be more concerned about treating the problem. And a subsequent treating physician may actually tell you about the problem with your prior medical care.

I think the most important thing to do if you think you’ve been a victim of medical malpractice is to contact a professional – a medical malpractice attorney who does this so we can get the records and get them to an expert for review.

Am I entitled to file a medical malpractice lawsuit if I have signed a consent form for treatment?

Susan: Most definitely you are. There is actually a separate theory in addition to negligence that you can sue for. Lack of informed consent. Consent of a patient is necessary before a procedure is performed by a physician. A physician can be liable for a medical battery if they do not have informed consent before giving treatment. With informed consent, a physician has a duty to inform the patient about all foreseeable risks, results and possible alternatives to treatment. You need to know what your alternatives and options are. To prove a case of lack of informed consent, the plaintiff must again have an expert who will testify to what a reasonable physician would have told the patient about the risks and the expert must say why the disclosure by the defendant physician was not reasonable under the circumstances. Having said all of that, the fact that a consent form is signed before a procedure is not conclusive. A good plaintiff’s medical malpractice lawyer can challenge the consent form; they can challenge the time it was signed. Have you already been given that shot that kind of makes you groggy before you go into surgery? They can challenge the circumstances under which it was signed. Did the doctor talk to you or were you just handed a consent form by a nurse and told sign here on the line? Was there a proper interpretation of that form? Was it explained to the patient? The most important thing to remember is just because a consent form mentions a particular risk, and the patient was informed of that risk, the patient does not consent to malpractice. A physician has to take measures to prevent that risk or harm.

So, for example, in a surgery case, if a surgeon injures a nerve or a blood vessel and that injury had been mentioned on the consent form, your attorney can still introduce evidence that that injury occurred only because of the negligent way the doctor performed the procedure. Consent only applies to appropriate care. It doesn’t apply to negligent care.

What will happen after the medical malpractice lawsuit is filed?

Susan: A process called discovery occurs. And basically what discovery is, it’s where the attorneys will engage in various practices to determine the facts of the case that will be presented at trial. The attorneys will exchange written questions; those are called Interrogatories. And the client will have to answer some written questions under oath. There is also something called a Request to Produce, where you will send a request to a hospital for documents, for records, for films. You may request policies and procedures from the hospital. You may request a credential file on the doctor. So documents will be exchanged back and forth between the parties. And then the majority of the discovery process involves taking depositions. Depositions are simply asking questions, and the plaintiff or the doctor answers them under oath and then this can be used at trial as a way of pinning down testimony. Normally in a medical malpractice case, the plaintiff will give a deposition and then the defendant doctor will give a deposition. Then other fact witnesses will give depositions, perhaps nurses or respiratory therapists. After those depositions are done, the defense or even the plaintiff may want to take the depositions of those treating physicians, physicians who have treated after the malpractice has occurred. The last type of deposition that is taken involves the experts. The plaintiff’s experts will give depositions. The plaintiff’s attorney will take the depositions of the defense experts. And it’s not unusual in a medical malpractice case for there to be dozens of depositions that are taken. I mean, I have had cases where we have had close to 100 depositions taken in a medical malpractice case. It takes time and a lot of depositions are part of a medical malpractice case.

Are medical malpractice claims routinely settled before filing a lawsuit?

Susan: The short answer is no. That’s definitely the exception rather than the rule. I think I can count on one hand the number of times that has happened in the 20 years that I have been practicing. Medical malpractice cases are usually filed. They are aggressively defended and they are litigated for many years.

How long does it take for the medical malpractice attorney to resolve a claim?

Susan: That’s variable. Some of it depends on where you file the case. Some court jurisdictions are more crowded than others. I remember many years ago filing a case downstate in a county and it was the fourth lawsuit filed in that county that year and we filed it in October. Now, if you were to file a medical malpractice case in Cook County in October, there could have been thousands of medical malpractice cases filed before October. So, it depends on where you file the case and a lot of it also depends on the complexity of the case. Some cases truly will involve one plaintiff, one doctor and maybe very little subsequent treatment. Other cases are very complex and there may be a number of defendant doctors that caused or contributed to the injury. And the injury may be very severe and a lot of discovery will need to surround the severity, nature and extent of the plaintiff’s injury. In general, I would say a good rule of thumb is two to five years. Some take longer than that. But two to five years I think is a reasonable estimate.

Do medical malpractice lawsuits commonly go to trial, and if so, how long usually is the trial itself?

Susan: Whether a case goes to trial or not is variable. My experience has been that most of these cases ultimately do settle because we do a good review before we file them and hopefully they are meritorious when we file them or we wouldn’t be filing them. However, if they do settle, they usually do not settle early. They oftentimes settle right as you are walking in the courtroom door for trial. Every case has to be prepared as if it is going to trial. You can never assume that a case will settle.

One of the reasons that cases don’t settle in medical malpractice, it’s a little bit different than in other areas of the law. In a lot of medical malpractice cases, the doctor has the right to consent to settle the case or not. Now that’s different than in an auto case. Now if you have an auto accident, your insurance company can settle the case without your knowledge or consent. Doctors usually have the right to consent and some doctors feel very strongly that they did nothing wrong.

Insurance companies also get involved. So an insurance company may decide to defend a case even if the doctor wants the case to be settled. Oftentimes, these cases are complex with multiple defendants and there may be fighting as to who is responsible and who is going to pay what. And that will drive a case to trial.

The length of a trial is also variable. It depends of the complexity of the case and the number of witnesses. Cases can go from one week to many months. Most cases in my experience are two to four weeks just for a general medical malpractice case.

Are patients successful with medical malpractice cases at trial?

Susan: The majority of cases in Cook County that actually go to trial are won by doctors and hospitals. I think the statistic is 70 percent to 80 percent that are won at trial by healthcare providers. And you may ask why has that happened? I think people want to trust their doctors and they have respect for doctors and hospitals. So it’s very hard sometimes for a jury to find a healthcare provider responsible for malpractice. Some of these cases are so complex that it may be difficult for a jury to understand the medicine and the issues. They say, how can I criticize a doctor if I don’t understand it and a good defense attorney is going to make it seem very, very, very difficult, and it’s our job as the plaintiff’s attorney to make the case and medicine as simple as possible. And I think there is also an undercurrent. You have probably heard about Tort Reform. There is some feeling out there among people that perhaps there are too many frivolous lawsuits. That we are driving doctors out of the practice of medicine and that medical malpractice suits raise the cost of everyone’s healthcare. Now, if we have time, I could tell you that none of those things are true in my opinion. But there are those beliefs out there that are held by some people.

How do I choose a medical malpractice attorney to investigate a potential malpractice claim?

Susan: That’s a good question. Medical malpractice is a very distinct and specialized type of law. You want to choose an experienced medical malpractice attorney — an attorney who deals with these types of cases and who has handled these cases in the past. Most law firms now have websites and you can go to the website of the law firm and see a record of the types of cases they have handled. I think you also want an attorney who has trial experience, an attorney who has taken many malpractice cases to trial. If your case goes to trial, you want the best shot of winning and your best shot is with an experienced trial attorney. You also want to choose a law firm that has the manpower and financial resources to prosecute your case. You want more than one attorney working on the case so if a deposition is scheduled on Monday and if the partner on the case can’t do it, there can be another partner and associate who can step right in to do that deposition to keep the case moving.

We have not talked about it in great detail, but these cases can be extremely expensive to prosecute. The cost of litigation in a medical malpractice can be in the tens of thousands of dollars. You want a firm that is going to be able to advance those costs so they can hire the very best expert for your case. So they can afford the demonstrative exhibits at trial that will teach and educate the jury about your case. I think most importantly you want an attorney who cares. An attorney who cares not just about your case, but about you as a person. When you meet that attorney, are they responsive to you? Are they listening to you? Are they putting you at ease? Do you feel comfortable? So the bottom line is you want a competent, hard-working, caring attorney to handle your case.

How do medical malpractice lawyers investigate a medical malpractice claim?

Susan: Very carefully, and in a very detailed and organized manner. Usually, a client will call and there will be some initial questions asked over the phone. What happened? When did it happen? Most clients then will be instructed to get a copy of their medical records and they send the records to us for review. We will review the medical records. We may do some medical research, some literature searches to research the particular topic and then a meeting is set up with the client and at that meeting we want to go into detail about what happened. We might want to talk to the client about their health history to see if they’ve had any similar problems. We might get some authorizations signed to get other related medical records. We might ask them to write a written summary about what happened with their case. The medical records sometimes only tell half the story. There is a lot that may be missing so sometimes we ask the client, "give us your side in writing." It’s a time for the client to ask questions. After the client meeting, we will obtain additional records. We may obtain films, pathology slides. We will then do a review in-house of all of this relevant information and if you are with an attorney who does a lot of this, they will have a pretty good idea if there is something here that merits going forward with the case.

The next step, which is unique to medical malpractice cases, is sending the case out to an expert for review to find out if it has merit. And oftentimes in the cases, it may be multiple experts that will need to review the records. Going back to our example of a breast cancer case. You may need to send the records to an internist who initially examined the lump for review. If a mammogram was done, you may have to send those records and films to a radiologist to see if the film was interpreted correctly. You may need to send those records to an oncologist who is going to determine what difference that delay in diagnosis made. So, there may be multiple expert reviews that are needed before a case can be filed. That’s why it’s important to consult a medical malpractice attorney as soon as possible after you suspect malpractice because an investigation may take several months.

What is the time limit for filing a medical malpractice claim?

Susan: You have a limited period of time to file a medical malpractice suit. This time limit is called the statute of limitations. And this will vary by state and it will also vary based on the specific facts of the case. There are some facts that can extend the statute of limitations. In general, in Illinois, a medical malpractice action must be filed within two years of the negligent act. There are exceptions to that. Some suits may need to be filed sooner and some later. In Illinois, the statute of limitations may be extended beyond two years by something called the Discovery Rule. In other words, you have two years to file a lawsuit from the time you knew or should have known that you had an injury and that it was negligently caused. But even with that discovery rule, you cannot file a lawsuit more than four years from the negligent act. This is called the Statute of Repose. Now there may be exceptions to that, too. Going back to the example of a baby. If a baby is injured in birth, in Illinois, the parents would have eight years to file a lawsuit from the date of birth generally. If a person is disabled because of the negligence, the statute may be tolled, so it can be filed basically at any time while the disability continues. As you can see, determining when the statute of limitation runs can be very complex as a legal question and a very fact specific question. And the only way to truly know is to consult an attorney who concentrates their practice in this area.

Where is a medical malpractice lawsuit filed?

Susan: In Illinois, it’s filed in the county of resident of any defendant or in the county where the malpractice or some part of it occurred. So let me give you an example. If malpractice occurs at a hospital in Kane County and the physician who committed the malpractice lives in Cook County and you sue both that hospital and that physician, you can file the case in either county then and you would be proper in either place. But the hospital may come in then and argue that Kane County is a more convenient forum and they would file a motion under a doctrine of law called Forum Non-Conveniens. And what that means is that the hospital is acknowledging that Cook County is a proper venue if you filed your case in Cook County, but Kane County would be more convenient. And then a court would balance various public and private interest factors to decide where the case would go. But as a general rule of thumb, it’s usually in the place where the malpractice occurred.

What is mainly required before a medical malpractice lawsuit can be filed?

Susan: A thorough investigation and a positive review from a good expert. You need to know if you are the attorney filing this suit that you have all of the pertinent records. You need to make sure you are filing it in the right place and time. You have to make sure that you are naming all the necessary parties and their corporations. In that example with the breast cancer, if you were to file the case against the internist and not have had that mammogram reviewed, and the radiologist misread the mammogram, and you didn’t sue the radiologist, that could be a big problem because the internist could point to that empty chair and say, "but for that radiologist reviewing the film wrong, you know, I wouldn’t be here. It’s actually the radiologists problem." So you want to make sure you have all of the proper parties in the case. You want to make sure you can prove all of those elements, the duty, the breach, the proximate cause and the damages. You want to have your experts lined up to testify. In Illinois, there is a special requirement that’s a statute. In the Illinois Court of Civil Procedure, Section 2-622, that requires you to actually have a physician’s report. And in this physician’s report, your reviewing consultant has to say that there is a reasonable and meritorious reason for filing the case, that he has reviewed the medical records and this is how the defendant doctor deviated from the standard of care and caused an injury. And that physician’s report actually has to be attached to the complaint that you file with the court. And an attorney also has to file an affidavit saying that they consulted with a qualified expert. So it’s an additional step that is required in a medical malpractice case to have this report, that would not be required in an automobile accident case.

So that is basically the process of what you do to file a lawsuit.

What are the costs and medical malpractice attorney fees associated with a medical malpractice lawsuit?

Susan: Medical malpractice cases can be very costly to prosecute. We are talking tens of thousands of dollars. And the attorney will pay these costs and be reimbursed at the end of the lawsuit if we are successful. But the biggest cost I think in any medical malpractice case is expert witnesses. A doctor to simply review medical records can charge $300 to $500 an hour. If they come in and give a deposition, the deposition may cost thousands of dollars; and if they come in and testify at trial, they are giving up a day of their practice, so they might charge $10,000 to testify a day at trial. So you can see if you have five of six experts on a case how the costs can go up very rapidly and you need these experts to prove your case.

Records, duplication of records can get expensive in these cases. And depositions can get expensive. Every time a deposition is taken, the transcript is typed up by the court reporter and there is a cost associated with that. So that is cost.

The other element is attorneys’ fees. In January, 2013, a new law was signed by the Governor in Illinois that caps attorneys’ fees at one third.

How do I choose a medical malpractice attorney to investigate a potential malpractice claim?

Susan: That’s a good question. Medical malpractice is a very distinct and specialized type of law. You want to choose an experienced medical malpractice attorney — an attorney who deals with these types of cases and who has handled these cases in the past. Most law firms now have websites and you can go to the website of the law firm and see a record of the types of cases they have handled. I think you also want an attorney who has trial experience, an attorney who has taken many malpractice cases to trial. If your case goes to trial, you want the best shot of winning and your best shot is with an experienced trial attorney. You also want to choose a law firm that has the manpower and financial resources to prosecute your case. You want more than one attorney working on the case so if a deposition is scheduled on Monday and if the partner on the case can’t do it, there can be another partner and associate who can step right in to do that deposition to keep the case moving.

We have not talked about it in great detail, but these cases can be extremely expensive to prosecute. The cost of litigation in a medical malpractice can be in the tens of thousands of dollars. You want a firm that is going to be able to advance those costs so they can hire the very best expert for your case. So they can afford the demonstrative exhibits at trial that will teach and educate the jury about your case. I think most importantly you want an attorney who cares. An attorney who cares not just about your case, but about you as a person. When you meet that attorney, are they responsive to you? Are they listening to you? Are they putting you at ease? Do you feel comfortable? So the bottom line is you want a competent, hard-working, caring attorney to handle your case.

Are doctors required to carry malpractice insurance?

Susan: There is no statutory requirement in Illinois for a doctor to carry malpractice insurance and it’s not tied to licensure as you might expect. I know that my Dad recently renewed his driver’s license and he has to show evidence of insurance when he did that. Not so with medical malpractice. But in actuality, almost all doctors do carry malpractice insurance. And it’s a requirement usually to get staff privileges at a hospital. A hospital will make sure they have medical malpractice insurance and it’s not a concern if you go to some of the larger healthcare institutions that actually employ the doctors because hospitals to carry ample insurance.

What is the conspiracy of silence?

It’s a very good question and it is a very real phenomenon out there. Often times, physicians who will review records as an expert will be happy to review the records and help us behind the scenes, but when it comes to giving an opinion in public or taking the stand at trial, they don’t want to do that. Or, we may have a client that comes to us and they will tell us that their new doctor is very critical of their old doctor and will help their case. They may actually tell the client, go see a lawyer. But then when we contact them, it’s a different story. Or in a deposition, they clam up. I think it’s very hard for a doctor to testify against a colleague. They might see this doctor three weeks from now at a professional meeting, and it could be very uncomfortable and very difficult. And it could affect referral patterns. Many doctors depend on referrals for their patient populations. So they don’t want to do something that could harm their business. And some doctors have actually been criticized or persecuted by other members of their profession for being an expert witness. So this conspiracy of silence is simply doctors refusing to publicly point out the negligence of another doctor. It’s difficult for a doctor to get up there and say that another colleague has committed malpractice and that’s why we are grateful for the courageous doctors that will do that on behalf of our clients.

What if anything can I do to prevent myself and my family from being victims of medical malpractice?

Susan: That’s a very good question. I think the most important advice that I could give was that you have to be an involved and savvy healthcare consumer. You have to be an active member of the healthcare team. Do research, get on the internet and research a potential physician you are going to see. Most physicians have privileges at hospitals. Hospitals have websites. You can get on a hospital website and learn about the doctor’s training and experience, where he has practiced before. The internet, I think has changed what a patient can do now before going for healthcare. I encourage you to get on the internet, on Google. It doesn’t have to be complex medical research. Google is wonderful; Wikipedia is great. It will give you an idea of what your disease is about and what the treatment is. Knowledge is power. Another thing that you can do is determine if your doctor is board certified. After training, a doctor can go on and take an additional examination that recognizes special competency in an area. For example, a doctor can be board certified in obstetrics and gynecology and they have to sit through a special exam. Now they are not required to be board certified, but that is an indication that they have special competency and expertise.

Any final thoughts?

Susan: I again, would encourage your listeners to be very active participants in their healthcare and if they do feel that there has been malpractice in their treatment, contact a professional and have their case reviewed.

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