Many Illinois medical malpractice cases involve clear disagreement between the parties–one side claims mistakes were made, the other denies them. Of course this is the picture that everyone envisions in the litigation process, with both sides marshalling evidence in an attempt to prove their case. However, our Chicago medical malpractice lawyers appreciate that in some cases, the evidence of misconduct is so clear that denying negligence is virtually impossible. In certain contexts this is referred to as res ipsa loquitor (“the thing speaks for itself”). While the Latin phrase refers to a negligence doctrine that has implications on a plaintiff’s proof requirements in a case, it is often used simply to suggest cases where the mistake was obvious.
Take, for example, a sad case making national headlines about a wasted liver donation. As reported in the Toledo Blade, a family was understandably shocked when they learned that a kidney donation from a brother to his sister was accidentally discarded by the nursing staff. The man went in for surgery to have a kidney taken out and given to his sister Yet, a nurse working on the operation was mistaken about the kidney’s use. Instead of following proper protocol to preserve the organ to be given to the sister, the kidney was accidentally thrown away. Doctors tried to save it when the mistake was discovered, by the damage was already done, and the organ could not be given to the sister as planned. It goes without saying that mixing up this delicate process in this way is an obvious sign of medical negligence.
So what are the family’s options?
The article reminds that the facility in question is a state institution. That alters the legal process by which those harmed seek recovery and accountability for these sorts of errors. Every state is somewhat different, but in general, there are special rules which states enact to limit the legal liability exposure of state-institutions when mistakes are made.
In the state where this act occurred, laws require medical malpractice lawsuits filed against state institutions to be heard by an appointed judge in the court of claims–not by a jury. In addition, the individual employees will not be named in the suit, as those employees are immune. However, there is a chance that a claims court might rule that the immunity rules do not apply to this hospital–though that is unlikely.
Besides procedural differences, perhaps the key issue in the underlying case will involve clarification of the harm caused as a result of the error. What is the cost of the mistake? One one hand, there is harm to the man who lost a kidney for no reason. In addition, what about the harm to his sister? If she suffers serious long-term health problems because she did not receive the kidney as intended, then the hospital should reasonably be required to pay for those consequences.
Making matters worse, no matter what is decided on the immunity and total loss, arbitrary damage caps in the state may affect the award. Medical cases in the state usually have a $250,000 (or $500,000) cap on non-economic damages. Therefore, no matter what harm is ultimately found–likely to be significant–the family will not be able to receive all that was taken simply because of random rules forced upon all civil lawsuits in the state.
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