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Part IV - Frequently Asked Questions About Medical Malpractice Lawsuits with Susan Capra, Partner at Clifford Law Offices, and Nurse - The First Steps in Determining If You Have a Case

Question: How do I choose an attorney to investigation 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. Question:  How does an attorney 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. Question: That's a really good point that you brought up.  You need to file as soon as possible and that raises next question.  What is the statute of limitations for 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. Question: 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. Question: 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. Susan Capra, a partner at Clifford Law Offices in Chicago, is here to discuss medical malpractice.  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 all that it takes to put together a successful medical malpractice case because these matters are highly complex.

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