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Cogan’s Corner – Pleading and Proving Medical Malpractice

Pleading and proving medical malpractice requires a reliable roadmap for the prosecution. It’s important to examine and investigate all potential defendants and causes of action.

A guide to pleading and providing medical malpractice

In 2011 the Illinois Supreme Court initiated a reboot in medical malpractice when it decided Studt v. Sherman Health Systems, 2011 Il 108182. It was merely a matter of months before the offending Illinois Pattern Jury Instructions on the standard of care in professional negligence cases were amended to reflect Illinois law.

Studt made it clear that professional negligence must be established by expert testimony except under very limited circumstances, such as when the standard is “common knowledge.” Evidence of professional standards, bylaws, rules, regulations, policies or procedures may also be relevant, but it cannot replace expert testimony on the standard of care.

Institutional negligence, however, may be proven not only through the above documentary evidence as well as community practice. While it remains relevant to institutional liability, “community practice” otherwise known as “the locality rule,” has essentially been eliminated from consideration in professional negligence cases.

The true effect of Studt is that it drew definitive lines across the sometimes murky and unpredictable field of medical malpractice. The court’s opinion was a refresher course of sorts on pleading and providing a claim.

If you’re like me, when a medical malpractice case comes into the office, you examine and investigate all potential defendants and causes of action. In doing so you can get mired in issues of agency, actual and apparent, and institutional liability.

Experts must be educated and urged to consider all angles of professional negligence in addition to exploring institutional liability. Often this is an evolutionary process requiring more frequent communication and review with experts and supplementation of their records and opinions as the evidence comes to light in discovery and the scope of the negligence is cast into full relief.

When it comes to actually drafting the complaint, I am old school. My first order of business; review the current IPI to ensure that we are exploring and pleading all of the relevant elements of the claim. A thorough treatment of all avenues of liability is also essential.

In sum, don’t stop at IPI 105.01 (Professional Negligence) or 105.03.01 (Institutional Negligence), the entire chapter serves as a checklist for the complaint and the case. For instance, IPI 105.10 and 105.11 provide the framework for pleading apparent agency and respondent superior. To cover all bases, physicians and their practices should be sued individually and under respondent superior using the traditional agency elements detailed in IPI Chapter 50 even if they are named alternatively as apparent agents of the hospital.

Specific to the issues of the apparent agency of the hospital medical professionals, since the seminal case of Gilbert v. Sycamore, 156 Ill.2d 511 (1993), this issue has focused on the patient consent form. This form is a crucial piece of evidence, not just for potential claims based on lack of informed consent (IPI 105.07.01, 02, 03) but to prove or defend the hospital’s claims on the element of holding out critical to apparent agency. In my experiences, unless the consent form is unequivocal that all of its physicians, not just some, are independent contractors, apparent agency presents a triable fact for the jury.

As a practice matter, the consent form should be reviewed with your client before drafting the complaint and then again in preparation for deposition. Clearly some physicians are more likely to fall into the apparent agent category, i.e. radiologists and anesthesiologists, while cardiologists or oncologists who may have been selected or consulted before admission are more likely to be held as independent contractors. These are important considerations when developing and pleading a viable medical malpractice case and tapping all of the potential insureds.

Originally published in the June 11, 2014 edition of the Chicago Daily Law Bulletin.

Cogan’s Corner, June 11, 2014 from CoganandPower

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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.