What Is Medical Malpractice?

The concept of medical malpractice, sometimes called professional negligence, occurs when health professionals do not comply with the standard of care prescribed for their profession. For instance, if a physician fails to diagnose cancer in a timely fashion and the patient's chances of survival are reduced or eliminated, the patient can sue the physician. Or, if an obstetrician fails to perform a Caesarean section contrary to all indications and the baby suffers damage, a lawsuit can be brought on behalf of the child and the child's parents. Yet, with all of the discussion of high insurance rates for doctors, large jury awards for patients, and managed health care, how does Illinois address the complicated issues raised when a health professional makes a mistake that costs a patient his or her health or life?

Unlike the majority of lawsuits filed in Illinois, a lawsuit for medical malpractice cannot be filed unless a qualified health professional, defined as one who has practiced or taught in the same area of health care within the past six years and who is knowledgeable on the relevant issues involved, signs a written report stating that the plaintiff has a reasonable and meritorious cause of action. In other words, your attorney must have the confirmation of a qualified health professional that the defendant health professional's conduct was indeed negligent. The plaintiff must file an affidavit with the lawsuit stating as much. Absent this documentation, the plaintiff cannot sue the health professional.

There is also a separate time limitation specifically for filing actions against health professionals. A plaintiff has two years from the time that he or she discovers that an injury or death was caused by professional negligence. This rule envisions those cases in which it may be difficult to discover that negligence has occurred, particularly since other health professionals may be reluctant to acknowledge that one of their colleagues has made a mistake. However, under no circumstances may a person bring an action more than four years after the date on which the act or omission causing the injury or death occurred. There are exceptions to this rule for minors and for persons with disabilities, as well as in instances where the health professional conceals his or her negligent conduct.

Illinois has also decided the complicated issue of the liability of health-care facilities, such as hospitals, for the negligence of the professionals who are not their employees but who work on the premises. For example, many emergency room physicians are actually employed by a separate service that provides staff for emergency rooms on an independent contractor basis. This often allows hospitals and other medical facilities to escape liability for physician negligence. Nonetheless, the Illinois Supreme Court has determined that, even though the doctors are not technically employed by the hospital, the hospital can be held liable if the doctor did not reveal that he or she was not a hospital employee. In other words, if the doctor holds himself or herself out as an employee of the hospital and does nothing to indicate otherwise to the patient, the hospital can be held liable for the doctor's negligence.

The liability of other health organizations, such as Health Maintenance Organizations (HMOs), has recently received attention. Action on both the state and federal levels is moving toward allowing lawsuits against an HMO for negligence that results in the injury or death of a patient member.

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