Patients put an unfathomable amount of trust into medical professionals. When patients undergo surgical procedures, they are literally putting their lives in the hands of a surgeon and his or her medical team. Whether a practitioner is removing a fraction of a broken tooth or is performing a complex triple bypass surgery, patients expect these operations to remedy serious health concerns, not make their medical issues worse. Nonetheless, surgical errors do occur, and quite frequently. According to a study conducted at the Johns Hopkins University School of Medicine, surgical errors are made more than 4,000 times a year.
If you have been injured due to a surgical error and wish to pursue legal recourse it's important that you understand (1) what filing a claim entails, as well as (2) the elements that should be included in your claim to ensure you get the compensation you deserve.
Types of Surgical Errors
One of the most unsettling aspects of surgical errors is that they are usually completely preventable. Here are some of the most common types of surgical mishaps made by medical professionals that lead to an injury:
- Performing an incision on the wrong part of the body
- Performing the wrong procedure on a patient
- Severing a nerve or other function during a procedure
- Leaving a foreign object inside of a patient
Filing a Claim in Illinois
The Statute of Limitations
The “statute of limitations” is a legal term that refers to the timeframe that victims are allotted to file a legal claim. Each state has individualized deadlines for specific causes of action. Surgical errors that are caused by the negligence of a medical professional fall under the realm of medical malpractice and these cases can, unfortunately, have restrictive time limits. This is why injured persons are expected to act immediately once they realize that they have been harmed and wish to take legal action. In Illinois, a medical malpractice lawsuit must generally be filed within two years of the date that an injury has been discovered, or should have been discovered. Nevertheless, a medical malpractice action must be brought no later than four years from the date that the malpractice occurred.
In Illinois, there is a different filing deadline that solely applies to claimants under the age of 18. According to state statutes, a claim filed on behalf of a minor must be submitted within eight years of the date that the medical malpractice occurred.
Surgical Errors and Medical Malpractice
Witnessing a surgical error or not being satisfied with a procedure is not enough to substantiate medical malpractice. It is important for those who wish to pursue legal recourse for an injury to understand what differentiates a mere medical mishap from a surgical error that constitutes medical malpractice. Only injuries stemming from instances of medical malpractice will make a claim viable in a court of law. In order to ensure you suffered due to malpractice, an injured person's claim should include the following elements:
The existence of medical negligence
In order to have a viable claim, a victim must demonstrate that medical negligence ensued. This means that a victim must pinpoint when this medical negligence transpired, and what elements of the surgical error elevate it to the level of negligence.
When a medical professional has acted “negligently,” this means that he or she made a mistake that fell below the standard of care for the particular procedure under the particular circumstances. When a surgeon's actions fall below the standard of care, this means that he or she committed an act that an ordinary health professional with the same level of experience and training would not have committed in similar circumstances.
Although medical professionals are not infallible, they are still required to operate in a fashion that is “reasonably skillful” and “careful.” If a claimant can prove that their surgeon deviated from this medical standard, he or she may have a viable claim. In most medical malpractice cases, a medical expert will be present to establish the standard of care and affirm that a medical professional's actions did, in fact, fall below this standard.
Proof medical negligence proximately caused an injury
It's common for individuals who fall victim to malpractice to be already sick or injured before an incident occurs. Therefore, it is essential for a claimant to prove that a medical professional's negligence directly caused an injury and/or worsened the condition of a patient. However, out of all of the elements of a medical malpractice case, this one may be the most difficult to prove.
For example, let's say a woman has had diabetes for years, and as time passes her health has progressively deteriorated. She claims that after a medical procedure, she started experiencing major complications, which ultimately led to a debilitating injury. If this woman were to sue her medical professional for this injury, she would have to establish that the negligent act led to her injury, not her previous diagnosis of diabetes. Claimants tend to seek the help of a medical expert to aid in proving that medical negligence caused an injury in court.
The injury resulted in damages
Unfortunately, it is still not enough to prove that a medical professional to perform a negligent act. Addressing the fact that medical negligence led to damages is the crux of a viable medical malpractice claim. 'Damages' are losses that a person experienced due to an injury. There are two types of damages that qualify a patient for compensation in medical malpractice cases: economic damages and non-economic damages.
Economic damages: These types of damages consist of monetary losses a patient experienced as a result of an injury. Economic damages are easy to assign a dollar amount to for the purposes of being awarded compensation. Some examples of economic damages are medical expenses, loss of employment, loss of past and future earnings, etc.
Non-economic damages: These damages refer to intangible losses such as pain and suffering, emotional anguish, disability or disfigurement, the loss of “enjoyment of life,” etc. Non-economic damages are more difficult for a jury to calculate.
Fortunately, there is no cap, or limit, on any of the above compensatory damages that a person can be awarded in an Illinois medical malpractice case.
Experienced Medical Malpractice Attorneys
Medical malpractice claims are complex. With the help of a skilled legal professional, the chances of receiving a favorable outcome in court are exponentially maximized. Contact our firm today for a consultation.