Illinois Medical Malpractice Blog

One of the first questions often asked of our Chicago personal injury attorneys is: “Do I still have time to file my claim?”

It goes without saying that an individual can’t wait around indefinitely deciding whether or not to file a personal injury claim. More specifically, Illinois has a statute of limitations that establishes concretely the available period of time in which a person may file a medical malpractice lawsuit.

The relevant law essentially says that, in the normal course of events, an individual must bring the suit against his or her health care professional, hospital, or health care institution within two years of the period of time when he or she knew, or should have known, about the injury. Moreover, even with the leeway allowing time after the two years to discover the injury, the general rule is that, no matter what, the lawsuit may not be brought more than four years after the event that triggered the injury.

Tolling of a Medical Malpractice Statute of Limitations May Occur During Infancy, Mental Incompetency, or Imprisonment.

The basic premise of exceptions to the medical malpractice statute of limitations is to protect injured parties who have a valid claim, from not being able to file suit against the person or persons who caused their injury.

For minors, the law is similar. If the injured person is under the age of 18 at the time of the accident or occurrence, a period of eight years following the injury is allocated, in which a claimant may file suit. If the individual is 18, the four-year period for normal circumstances applies.

However there’s one more significant provision of the law: “If the person entitled to bring an action. . . is, at the time the cause of action accrued, under a legal disability other than being under the age of 18 years, then the period of limitations does not begin to run until the disability is removed.”

But what does that mean?

To date, the Illinois Supreme Court has not addressed the issue of “legal disability” as provided in the statute governing limitations on medical malpractice claims. However, a number of court cases in lower Illinois courts have given shape to the issue.

In order for imprisonment to stall the clock on for the imprisonment exception, the occurrence causing the injury must have accrued at the same time the person was imprisoned on a criminal charge. This means that if the injury happened while a person was in prison, or the injury happened to the child of a prisoner, the statute of limitations is suspended until the “disability is cured,” – or the prisoner is released.

Then again, the Illinois legislature wouldn’t have wanted to encourage crime for the purpose of allowing people to have a longer period of time to bring a lawsuit, so subsequent courts have found that the limitations period will not be deferred if the person entitled to bring suit was not incarcerated at the time of the alleged malpractice.

But what about the other conditions that allow tolling of the statute of limitations?

Continue reading "What Tolls the Statute of Limitations for Illinois Medical Malpractice Cases?" »

Millions of Americans are harmed each year because of medical errors that should have been prevented. The vast majority of those victims will remain silent about their loss, often because they themselves do not immediately find out about the mistakes. Many times it isn’t until long after the care is provided that victims of medical malpractice become aware of the problem. This silence is one way that many citizens remain misinformed about the true scope of the medical mistake problem.

To help put faces onto the issue, Public Citizen is asking for Americans to share their personal stories of medical malpractice and loss. If you are someone you know has suffered because of one of these errors, the group is asking that you visit their website and fill out a survey about the incident.

In this way, the real lives and experiences of those who have dealt with medical mistakes can be shared with the world. It will go a long way to help lift the veil of silence that remains over much of the situation. The information will also help lawmakers who are currently debating legislation related to medical malpractice and the rights of those victimized by it.
Specifically, an introduced bill, H.R. 5, is particularly troubling for those who care about medical victims—the bill would apply to medical malpractice claims, nursing home lawsuits, and suits against insurance companies. It includes arbitrary caps on non-economic damages, and shortens the statute of limitations on many acts of negligence. It also eliminates joint and several liability and raises pleading standards. These changes would essentially make it harder for victims to win cases and, even if they are won, harder to collect the entire damage award reached by the jury.

Continue reading "Share Your Illinois Medical Malpractice Story" »

One of the many tools in the arsenal of big interests seeking to limit patient rights is the claim that malpractice lawsuits encourage costly defensive medicine. The myth claims that costs are increased indirectly because doctors now run more tests than necessary for fear of litigation. Yet, a close look at the situation in hospitals across the country paints a much different picture.

A recent Huffington Post article explains the claims made about the effect of “defensive medicine” are virtually unproven. In most cases the idea is generated solely by doctor surveys organized by the very groups who stand to benefit from claims about rising healthcare costs. When pressed further most of these groups have a difficult time identifying what exactly constitutes defensive medicine.

Even more evidence continues to pour in that shows that increased testing is most frequently done because of the fee for service Medicare guidelines that incentivize overuse of procedures. Regardless, Medicare rules would forbid performing tests that are unnecessary except to defend against lawsuits. In other words, if defensive medicine is used, it is illegal and should be rooted out.

The majority of unbiased scholarly research has found that the problem of defensive medicine is nothing more than the latest gambit by those interested in taking rights away from medical victims. In reality, the data indicates that medical providers are not conducting as many additional tests as is often believed. In addition, virtually no savings in medical costs can be gained from eliminating the testing of patients.

Continue reading "Columnist Calls Defensive Medicine A Fraud" »

As with many issues related to medical malpractice, misinformation abounds. Insurance companies and the powerful medical lobby are often willing to perpetuate distorted truths about the effect of malpractice lawsuits in an effort to influence policy in their preferred direction. Through it all, it is important to keep sight of the truth about the fair access to justice for all medical patients.

For example, Chicago Now recently published a letter by the president of the Illinois Trial Lawyers Association that debunks a skewed study which attempted to paint the picture that medical students were fleeing Illinois because of malpractice laws in the state.

The letter explained that the “study” which claimed to reach that conclusion was nothing more than a survey paid for by the Illinois Hospital Association and the Illinois State Medical Society Insurance Company—two groups that have much to gain from taking away the legal rights of malpractice victims.

Yet, even then the survey reveals not that medical students leave Illinois because of malpractice lawsuits but instead because the Illinois legal market is “oversaturated.” Oversaturation, of course, means that there are already more than enough doctors in certain areas. That is a far cry from doctor’s “fleeing” the state because of legal rights. Besides that, many of the other students who leave the state are doing so because they never intended to stay in Illinois anyway.

Continue reading "The Myth of the Fleeing Medical Student" »

Attempts to improve the medical system in Illinois often run into a large roadblock in the form of the Illinois State Medical Society. Unfortunately the group often works to protect bad doctors without concern for the needs of the patients who unknowingly seek their care.

For example, one state Senator attempted to introduce legislation last spring that would automatically suspend the license of a doctor charged with a sexual or violent crime against a patient. The bill was spurred by the case of a pediatrician who was allowed to continue seeing young patients after being charged with sexually assaulting a 13 year old patient.

However, the state’s medical lobby began chipping away at the bill almost immediately. The legislator was forced to cut back on the bill, weakening its provisions, in an effort to get the political coalition together to pass the measure. He explained, “The doctors have a very strong lobby in Springfield, and they certainly were making it very difficult to pass a piece of legislation that addressed a statute that had this big, large gaping loophole.”

Much of the wheeling and dealing involved in crafting legislation takes place behind closed doors—and that is exactly where the medical lobby wields its influence. The group targets lawmakers in leadership positions and crucial committee assignments to alter their vote. Over a dozen lobbyists and $6 million in campaign donations have been used in the last decade alone to thwart medical reform bills that the medical lobby disapproves.

The group has worked to block changes to doctor licensing, open reporting of medical errors, and a variety of other reform measures.

Continue reading "Illinois Medical Lobby Prevents Attempts to Bar Dangerous Doctors" »

Policymakers in Illinois are currently grappling with the best way to protect patients from harm caused by the potentially dangerous physicians providing them medical care. Of particular concerns are those doctors that have a history of sexual abuse convictions.

The Chicago Tribune reported yesterday on the debate surrounding the issue. As it currently stands, sex offenders face little to no discipline in the state related to their medical profession. Some convicted offenders are never disciplined at all, some receive temporary suspensions, but almost all eventually keep seeing patients.

Sex crimes are difficult to prosecute, meaning that many of these crimes are actually punished under the label “misdemeanor battery.” The lesser crime triggers a less severe disciplinary process in which little oversight is provided by an overburdened probation program. On top of that, this year Illinois suddenly stopped provided patients access to detailed historical information about the doctors providing them care—information like past criminal convictions and payments for medical malpractice. It is no surprise that the state’s medical lobby has led efforts to keep this information from patients.

However, to help get a hold of the problem, some lawmakers are seeking to tighten up laws around medical discipline. The changes include re-opening access to doctor profiles and making the penalty harsher for those doctors who commit sex crimes. Some states have already taken tough steps. For example, in California a law passed by the state legislature stripped the medical licenses from all physicians who have been convicted of a sex crime.

Continue reading "Illinois Officials Take Steps To Prevent Sexual Abuse By Doctors" »

The Illinois Supreme Court showed their support for patient’s rights today by ruling that medical malpractice caps violate the state’s Constitution. The ruling strikes down a statute that would limit awards for noneconomic damages such as pain and suffering. This would be the third time that the Illinois Supreme Court rejected medical malpractice caps. The court told lawmakers that they could not limit the amount of money that a medical malpractice victim could win in court. The Illinois Supreme Court found that the legislature had violated the separation of powers by infringing on the powers of the judiciary. The ruling revolves around the case of a 4 year old victim who was a victim of medical negligence. This medical error caused the girl’s brain damage at birth. This is a landmark case that will help the victims of medical malpractice throughout the state of Illinois. Now that malpractice caps have been lifted, the victims may receive funding that is needed to survive. The lawyers at Levin & Perconti applaud the Illinois Supreme Court for their support of patient’s rights. A victim deserves to be rightfully compensated for their injuries. To read reaction to the important decision, please click the link.

Ten years ago a report stated medical mistakes kill up to 98,000 Americans yearly. In 2005, Illinois legislators finally decided to do something and passed a measure requiring hospitals to report the deadliest kind. However, the law has yet to be implemented and it still won’t be for at least another year. There are glimmers of progress. This includes recent launch of a related state Web site that tracks hospital infection rates and staff levels, and the imminent start of a search for a vendor to help put the law in place. The proposed medical malpractice law will require hospitals to publicly report so-called “never” mistakes. These medical errors are mostly preventable with potentially life-threatening consequences. One example is the wrong-knee surgery one victim says Chicago-area doctors performed on him last year. There was also the woman who had a forgotten sponge left inside her during a breast tumor surgery. With the law fully in place, hospitals will be required to report major medical errors within 30 days to the state’s public health department. This law needs to be implemented so that hospitals and doctors can learn form the misses and near-misses of others. To see what other changes will be made with the medical malpractice law, please click the link.

Attorneys for the family of woman who froze to death on the roof of a hospital are asking a judge to sanction the state Health Department for refusing to turn over notes written by inspectors who found hospital errors after her death. The notes the family seeks were taken days after her wrongful death and resulted in a critical 22-page inspection report made public in January. The dispute reports stems from a rule change in the U.S. Department of Health and Human Services enacted in late 2008. Attorneys say that the legislative changes deprive them of key evidence once available in wrongful death and negligence suits against hospitals and nursing homes. The rule has become a “substantial problem” across the country for attorneys pursuing claims against nursing homes and other heat facilities. This will make requests for records under the Freedom of Information Act drag out for years. To read more about the hindering legislation, please check out the link.

It has been more than four years since medical malpractice reform was enacted in Illinois, and stakeholders are anxiously awaiting the Supreme Court decision on its constitutionality. Then-Governor Rod Blagojevich had signed the Illinois Medical Malpractice Act of 2005 into law on August 24, 2005. The bill would have automatically become law the next day had the governor not ceremoniously signed it before a large crowd of doctors and lawyers. The law caps non-economic damages, such as pain and suffering, for physicians at $500,000 and hospitals at $1 million. The Illinois Supreme Court is expected to release its opinion in a challenge case that arose from Cook County. The case was Abigaile Lebron v. Gottlieb Memorial Hospital. An a against all odds-legislative victor for medical liability reform advocates set the stage for the historic bill signing in 2005. At the signing, Blagojevich told the overflow crowd that he was personally opposed to medical malpractice caps, but believed it was the right thing to do so that more people could have access to healthcare. Medical malpractice caps do nothing but injure victims of medical negligence. Hopefully, these caps will be found unconstitutional. To learn more about the pending case, please follow the link.

Ten years ago, the landmark study stated that medical mistakes kill up to 98,000 Americans a year. In 2005, the Illinois legislators decided to address this problem and passed a measure requiring hospitals to report the deadliest kind. However, the law has yet to be implemented into the Illinois legal system. State budget woes and foot-dragging by special interests are among the reasons cited for the long delay. Currently, there is hope that the legislation will pass. There was a recent launch of a related website that tracks hospital infection rates and staff levels. The law will require hospitals to publicly report so-called “never” mistakes. These are mostly preventable errors with potentially life-threatening consequences. When the medical error legislation is fully in place, hospitals will be required to report major medical errors within 30 days to the state’s public health department. One of the most common major errors is leaving surgical sponges inside patients. It is unlikely that the medical malpractice legislation won’t take effect until 2011. If you would like to learn more about the new health care legislation, please click the link.

The Washington State Hospital Association is urging the state to appropriate money for a consultant who would analyze medical error reports and recommend solutions to help facilities avoid death and injures. Hospitals which are required to report medical errors feel that they aren’t getting enough in return when the state collects their report. They feel as if the state does nothing but store the report and move on. They are frustrated by the lack of analysis or warnings that could ultimately prevent medical error and save lives. The Washington Legislature had passed a law in 2006 requiring hospitals to report medical errors and mandating the state Health Department to analyze the reports. However, the money the legislature set aside for this program would have barely made a down payment on the estimated cost of $3.8 million a year. Since there is no consultant, no medical errors are being made to the Legislature. Also, there are problems with hospitals disobeying the law and failing to report medical errors. This program could be a huge step for reducing medical errors. Illinois should greatly consider such a program to reduce the number of medical malpractice cases this state sees every year. To read more about the medical malpractice legislation, please click the link.

A state government recently passed legislation authorizing the state to release records of hospital medical errors. The legislation focuses on preventable errors such as operating on the wrong side of one’s body, leaving a sponge in the body after surgery, or operating on the wrong person all together. They want these specific instances recorded with the number of times it happens at the hospital to be released to the general public. The intent for this legislation is to hold hospitals accountable in hopes they will improve their healthcare and also to allow patients to make informed decisions on the hospital they choose.

Read more about the medical legislation here.

As President Obama prepares to meet with the American Medical Association today in Chicago, a New York Times article reports that President Obama has been in talks to possibly support the reduction of medical malpractice lawsuits. While health care professionals support this change, personal injury attorneys argue that this change will negatively affect those injured or killed in incidents of medical negligence. Many see this move as a way to draw Republican support of his larger push for health care reform. To read the entire article on possible medical malpractice reform, follow the link.

The American Association for Justice is urging people to contact their representatives to speak out against the inclusion of medical malpractice tort reform in future health care reform bills. Congress is currently preparing to make great changes to the current health care system and there is a possibility that tort reform may be included in these changes. Medical malpractice tort reform would take away patients rights to receive fair compensation for the negligence of health care providers. Therefore, it is important to let your voice be heard. Stand up against the inclusion of medical malpractice tort reform in any new health care reform legislation. To locate your representatives, click here. People Over Profits has prepared a sample email that you may send directly to your representatives in Congress.

A military officer’s skin cancer was overlooked and later misdiagnosed as a wart by two different military doctors. When seeking out a third opinion after his tour was over, he learned he had stage three skin cancer and died 18 months later. The medical misdiagnosis led to legislation introduced in the House. The legislation allows military personnel to sue the government for medical malpractice.

Read more about the medical malpractice legislation here.

Pharmacists are given equal notoriety under a state medical malpractice reform bill. A massive medical malpractice reform was passed a few years back in this state with pharmacists overlooked. The bill also includes a felony for practicing medicine without a license. Such instances of unlicensed practice that would spark this bill would be when a doctor caused serious bodily harm or even death.

Read more about the medical malpractice reform bill here.

Key players from Congress and the Obama Administration are once again bringing medical malpractice reform to the table. An AP article discusses that these changes could benefit doctors and hospitals but they would also harm a plaintiff’s ability to seek just compensation when they are involved in a medical malpractice case. Trial lawyers argue that medical malpractice lawsuits are not to blame for rising health care costs and only account for a very small portion of costs.

To read the full article about medical malpractice reform, visit the link.

Doctors are asking for a bill that would lower their medical malpractice insurance in Hawaii in order to provide incentives for physicians to stay within the state. This would hurt patients seeking damages under medical malpractice claims because the bill would “limit compensation for non-economic damages like pain and suffering.” The bill comes from patients who fear they have a shortage of doctors in their state. In contrast, medical malpractice attorneys claim there has been an increase of doctors within the state in recent years, not decrease.

For the full story, click here.

Doctor-owned hospitals have been criticized for driving up costs in ordering more tests or performing unnecessary surgeries. The proposed legislation will prohibit unethical kickbacks that physicians receive from ownership hospitals. One representative stated that most doctor-owned hospitals are of questionable safety and quality.

For the full article.