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What Should I Do If I Think My Doctor Has Committed Medical Malpractice

Estimates of the frequency of injury by medical malpractice range from 5-14%.

Unfortunately, medical malpractice is common in the United States. Estimates of the frequency of injury by medical malpractice range from 5-14%. In other words, 5 to 14 out of every hundred people who enter the hospital for medical care suffer some kind of injury due to malpractice. However, if you suspect injury, you may be uncertain or timid about filing a medical malpractice case.

What You Have to Prove for Medical Malpractice Cases

Under Illinois law, you have to prove three basic things in a medical malpractice case. You have to show:

  • The doctor in question had a duty to treat you;
  • The doctor failed to apply the recognized standard of care; and
  • You suffered injury as a result.

Showing a duty to treat means showing that you went to the doctor for treatment in a way that created such a duty under the standards of the medical profession. For example, if the doctor was working in the emergency room where you went to get treatment and he treats you, a duty has arisen.  Once a doctor agrees to treat you, they cannot normally rescind that agreement.

Establishing that a doctor violated the standards of care in your case is one of the more difficult things to establish in a malpractice case. We will uniformly call medical experts who will discuss what is typical in your case, so you can show that you did not receive the appropriate treatment.

Documenting your injury (which also calls for the use of experts) generally means showing that you needed additional care beyond what was expected for your condition. This may include showing:

  • You spent longer recovering from your procedure than usual;
  • You were diagnosed with additional illness that can be linked to your original medical treatment;
  • You required additional procedures not normally required for care in your case; and/or
  • You suffer ongoing pain, disability, or other effects.

I Suspect that My Doctor Has Committed Medical Malpractice

A medical malpractice claim is established when a doctor or other medical professional acts negligently during the administration of medical care.

A negligence claim requires four elements: duty, breach, causation and damages. The claim must also be brought within a certain amount of time.

Not All Bad Outcomes are Due to Negligence

A bad outcome is not always grounds for a medical malpractice claim. Just because a medical procedure did not have the desired or expected outcome does not necessarily mean that the doctor acted negligently in the administration of your care.

For example, most instances of misdiagnosis and delayed diagnosis can be traced back to an act of negligence on the part of the doctor or medical care provider; however, this is not always the case. A skillful and careful doctor could use reasonable care and still make a diagnosis error. Sometimes patients develop very rare conditions, or have a plurality of conditions that work together to produce a patient’s unique and unusual symptoms. A careful doctor would perform an examination, conduct research, and arrive at a list of possible diagnoses, and would conduct testing until they could arrive at a diagnosis that fits the symptoms and circumstances of the patient.

A doctor could also arrive at an innocent misdiagnosis if the doctor relies upon inaccurate laboratory data or test results obtained from another party. A malfunctioning piece of diagnostic equipment could render inaccurate test results, and would not be the fault of the doctor. Nor is it the fault of the diagnosing doctor if a lab technician makes a mistake or commits a human error during processing of the lab data. A lab technician could accidentally swap the samples or x-rays of two patients, or could record the results of a test on the incorrect patient’s report. In this case, while the doctor may not be liable, the laboratory responsible for the inaccurate data likely is liable for negligence.

In order to prove negligence regarding a doctor’s diagnosis error, liability is limited to the doctor’s actions. It must be shown that a similarly situated doctor, in the same specialty, would not have provided a misdiagnosis, and that the patient suffered harm from that diagnosis error.


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