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Medical Malpractice

Illinois Appellate Ruling May Raise the Bar for Plaintiffs

November 18, 2015

An October ruling by the Illinois Appellate Court, Second District, may make it more difficult for medical malpractice victims to pursue certain claims in Illinois courts.

Medical Malpractice Affidavit of Merit

Under Illinois medical malpractice law, Chicago medical malpractice lawyers (or the plaintiff, if the plaintiff is not represented by a lawyer: must include an affidavit of merit when filing a medical malpractice complaint with the court. According to the law, the affidavit must state:

“That the affiant has consulted and reviewed the facts of the case with a health professional … [who] has determined in a written report, after a review of the medical record and other relevant material involved in the particular action that there is a reasonable and meritorious cause for the filing of such action; and that the affiant has concluded on the basis of the reviewing health professional’s review and consultation that there is a reasonable and meritorious cause for filing of such action.”

The statute also spells out specific requirements when asking a healthcare professional to provide an affidavit. Specifically, the medical professional must be:

“(i) [K]nowledgeable in the relevant issues involved in the particular action; (ii) practices or has practiced within the last 6 years or teaches or has taught within the last 6 years in the same area of health care or medicine that is at issue in the particular action; and (iii) is qualified by experience or demonstrated competence in the subject of the case.”

Affidavits Are Necessary In Medical Battery Cases

In the case of McDonald v. Lipov, the plaintiff – who was not represented by a medical malpractice lawyer – alleged she had been the victim of medical malpractice and medical battery. Medical malpractice occurs when a healthcare professional fails to follow the standard of care, and makes an error in treatment, misdiagnosis or otherwise hurt a patient by providing substandard care. Medical battery, on the other hand, alleges that doctor provided non-emergency treatment of the patient without obtaining the patient’s informed consent.

When filing her complaint in McDonald v. Lipov, the plaintiff failed to include an affidavit of merit. Three times the court extended the deadline to file the affidavit, and after that failed to occur, the case was dismissed with prejudice. The plaintiff appealed the dismissal, arguing that the medical battery claims did not require an affidavit of merit and that part of her complaint shouldn’t have been dismissed with prejudice. The appeals court agreed and sent the case back to the trial court, while requiring the plaintiff to amend her original complaint.

The plaintiff’s amended complaint included several claims from the original complaint, as well as 14 new claims, including:

  • Medical battery
  • Medical negligence
  • Fraudulent concealment
  • Conspiracy
  • Violations of the Emergency Medical Treatment and Active Labor Act
  • Breach of contract
  • Vicarious liability
  • Spoliation of evidence

The defendants again asked the court to dismiss the plaintiff’s claim, and the trial court did so. The plaintiff again appeals, arguing that the Illinois’s affidavit of merit requirement didn’t apply to her medical battery claims.

According to the National Law Review:

“The appellate court heavily relied on the recent opinion in Holzrichter v. Yorath, … [where] the Illinois Appellate Court, First District, concluded that the plain and unambiguous language of [Illinois’s affidavit of merit law] did not limit the requirement of an affidavit and certifying report solely to medical malpractice claims. The Holzrichter court affirmed summary judgment entered against a plaintiff alleging medical battery who failed to file a health professional’s report. There, the plaintiff claimed that the defendant committed medical battery by exceeding the scope of his consent in severing tendons in a procedure that did not require the medical professional to do so. The court explained that the plaintiff’s medical battery action, grounded in tort law, arose from a medical procedure that he claimed went beyond the scope of his consent.

“The McDonald court agreed … finding that [the affidavit of merit requirement] can apply to medical battery claims. The issue was whether the defendants exceeded the surgical parameters to which the plaintiff consented. The salient issue required the assessment of the claims, which were outside the comprehension of a lay person because it required knowledge, skill, or training of a medical professional. Thus, the court held that the plaintiff required a medical expert and a supporting affidavit to sustain her medical battery claims.”

Chicago Medical Malpractice Lawyers Will Help Obtain Affidavits

By requiring an affidavit of merit, it makes it more difficult for plaintiffs to file frivolous lawsuits. But it may also make it tougher for plaintiffs to file medical malpractice lawsuits in instances where it’s not entirely clear who is to blame. And because medicine is a collegial profession, many healthcare professionals may be unwilling to endorse a lawsuit against another medical professional, even in instances that are clear cut. Fortunately, Chicago medical malpractice lawyers who regularly represent victims will have relationships with an array of physicians who are willing to review medical records and determine whether there is “reasonable and meritorious cause” to file a medical malpractice lawsuit.

If you have been injured in a personal injury or medical malpractice accident, do not hesitate to contact the Chicago accident and injury law firm of Cogan & Power at (312) 477-2500 to schedule a free case consultation, so that we can help you begin the process of recovery as soon as possible. If you cannot come to our offices in downtown Chicago, we will come to you. And because we take cases on a contingency basis, you will not pay any fee unless we get you compensation.