Do I automatically have a medical malpractice case if a loved one was made worse or died after surgery or treatment?
Not necessarily. The truth is malpractice laws are meant to protect consumers from negligence or incompetence in medial practice, not undesirable outcomes. Many treatments may very well be conducted according to best practices and still result in the worsening of a patient's condition or death. Many procedures can result in undesirable outcomes but because they are known risks of said procedure, there may be no actionable claim against the medical provider.
It is when medical personnel fail to rise to the level of acceptable medical treatment procedures or neglect, when a medical provider “deviates from the acceptable standard of care” that a viable medical malpractice cause of action may exist.
Who is responsible for damages if the malpractice occurs in a hospital setting?
That depends on a number of factors. Typically, physicians may work in a hospital but not as employees of the hospital. In that case, the physician is likely responsible for damages that occur at their hands. This is often rings true when the at-fault party is a radiologist, whose may be employed by a radiology group and merely performs the radiological exam at the hospital utilizing the hospital’s equipment. If the physician is an employee of the hospital, then it is possible that damages may be sought from both the hospital and physician (or radiologist) in question. It may also be true that the injured party reasonably believed that the at-fault physician was an employee of the hospital (i.e. the physician was wearing a hospital white coat, holds himself/herself out as a hospital employee, there were no signs or notices visible to the patient that the doctor was not an employee of the hospital), in which case, the hospital may be held liable under the theory of “apparent agency.”
If other medical personnel employed by the hospital (i.e. nurse anesthetist) is responsible for the injuries but was acting under the supervision of the attending physician, the responsibility likely falls again on the physician but may fall on the hospital for failing ot follow hospital policies and/or procedures.
Many factors may determine which party is at fault in your medical malpractice case. Please read our blog post on the subject here to learn more.
How much time do I have to file a personal injury claim after I suspect medical malpractice?
An action for personal injury or death against a physician, dentist, nurse, or hospital must be filed within two years from the date the claimant knew or reasonably should have known of the injury. 735 Ill. Comp. Stat. Ann. § 5/13-212(a). In no event may a claimant bring an action more than four years after the date on which the alleged act or omission occurred. This is what is known as the statute of repose.
If the injured party is under the age of eighteen when the cause of action accrued, the limitation period is eight years from the date of the alleged act or omission, except that in no event may such an action be filed after the minor claimant’s 22nd birthday. § 5/13-212(b). If the claimant is mentally incompetent, the period of limitations does not begin to run until the disability is removed. § 5/13-212(c).
Wrongful death actions, on the other hand, are governed by a different two-year statute of limitations, one that begins to run on the date of death. 740 Ill. Comp. Stat. Ann. § 180/2. However, such an action can only be brought if, on the date of death, the decedent could still have commenced a malpractice action for the injury that caused the death.
What should I do if I believe I or a loved one have suffered injuries resulting from substandard medical treatment or neglect
After seeking outside medical care for your injuries, contact an experienced medical malpractice attorney like those at Panio Law Offices. We offer a wealth of knowledge and experience in recovering damages in medical malpractice cases and work hard to ensure every client receives the highest awards to that the law entitles.
If you have questions about or wish to file a medical malpractice claim, call Panio Law Offices at 800.799.7561. We can help.