When medical care at a hospital falls below the minimal standard of care set by the medical profession, it constitutes medical negligence, and it can mean injury or death for a patient. According to Consumer Reports, medical errors in hospitals in the United States are linked every year to more than 400,000 deaths. That is a terrifyingly high number, but the number of hospital mistakes causing injuries short of death is even greater. In the Chicago area, if you are injured while receiving treatment or care in a hospital, can you sue for medical negligence or malpractice?

Frankly, every injury case is different, so the realistic answer is “it depends.” This is a general introduction to the topic, but if you become a victim of medical malpractice in the greater Chicago area, you’ll need the advice of an experienced Chicago medical malpractice attorney regarding any specific case of malpractice or any allegation of malpractice by a physician or by a hospital.

ARE HOSPITALS LEGALLY RESPONSIBLE FOR THE ACTIONS OF EMPLOYEES?

We are all human, and we make small mistakes all the time, so not every mistake that happens in a hospital is necessarily negligence or malpractice. In most situations, a hospital will be considered liable if an employee injures a patient by acting negligently or incompetently. A medical malpractice lawsuit is usually appropriate if a technician, a nurse, or another hospital employee injures a patient by incompetently or negligently performing a job-related task.

There is an important exception. Typically, doctors are not hospital employees. If a physician injures a patient through malpractice at a hospital, although there can be exceptions, the hospital usually will not be held liable. And if an employee of the hospital makes a medical mistake while working under the direction of a physician, the doctor can probably be sued, but the hospital is probably free of liability. A Chicago medical malpractice attorney will have to look at the particulars of any specific case before offering advice about a victim’s legal rights and options.

IS OR ISN’T THE DOCTOR A HOSPITAL EMPLOYEE?

If the doctor is a hospital employee, and if the doctor commits medical malpractice, in most cases, the malpractice victim can sue the hospital. However, while some physicians are employed by hospitals, most are not. They are considered independent contractors, and in those cases, hospitals usually are not responsible for a non-employee’s actions. However, a doctor is probably an employee if the hospital determines the doctor’s working hours and sets the doctor’s fees.

And again, it all depends on the specifics of the case. If a hospital “appeared” to be a physician’s employer, and if the plaintiff/injury victim in a malpractice case has evidence to that effect, the plaintiff/injury victim can probably sue the hospital for the physician’s malpractice. However, most hospitals have incoming patients sign admission forms which spell out quite clearly that their doctors are not hospital employees.

There is still another exception. For emergency room patients who are injured by a physician’s malpractice, the hospital can usually be sued because there is seldom any opportunity to tell ER patients that ER doctors are not hospital employees. Almost always, hospital emergency rooms are chaotic and overcrowded, so when doctors, nurses, and other ER personnel are negligent, the injuries they cause can be devastating.

Still, medical malpractice cannot be tolerated for any reason. Emergency room errors happen far too frequently and are almost always preventable. Those with life-threatening conditions receive priority attention over other patients who may not receive the full medical attention they genuinely require. Some patients wait in emergency rooms for hours with their health visibly declining while they wait.

And even when a doctor is an independent contractor, a hospital can sometimes be sued for a doctor’s malpractice if the hospital knew – or should have known – that it was giving staff privileges to a negligent or incompetent physician. For example, if a doctor develops an issue with alcohol or drug abuse or addiction, and the hospital management is aware – or should have been aware – of the problem, the hospital can probably be sued if that physician injures a patient.

HOW DOES A MEDICAL MALPRACTICE CLAIM PREVAIL?

To prevail with a medical malpractice claim against a hospital, a plaintiff must demonstrate that a physician or another hospital employee violated the legal and professional duty of care to the patient. A plaintiff will also have to prove that the hospital’s negligence was the direct cause of the injury and that the injury resulted in economic or non-economic damages. That is, a plaintiff will have to prove that medical malpractice and the resulting injury led to additional medical bills, lost income, unnecessary pain and suffering, and/or the temporary or permanent loss of future earning capacity.

Surgical errors get media attention – when an amputation or an organ removal goes wrong – but the truth is that most malpractice incidents do not happen during surgeries. Every year in the U.S., about twelve million adults are misdiagnosed in emergency rooms, clinics, and doctors’ offices. Misdiagnosing a serious condition, and recommending the wrong treatment or medication on the basis of that misdiagnosis, can cause great harm to anyone who is already suffering, and it’s the leading way that patients are injured by medical malpractice.

While Consumer Reports links medical mistakes in U.S. hospitals to more than 400,000 deaths annually, the Leapfrog Group, a nonprofit organization that monitors safety in hospitals, recently gave consumers some good news about hospitals in the Chicago area. Twenty-six Chicago-area hospitals received grades of A in the Leapfrog Group’s most recent “Hospital Safety Score” report. Thankfully, no hospital in the Chicago area was given an “F” grade by the Leapfrog Group.

Medical malpractice law is a complicated body of statutes that can change from year to year and vary from state to state. If you believe that you or someone you love is a victim of medical malpractice – in a hospital or in any other medical setting – it is imperative to take action quickly. In Illinois, a medical malpractice claim usually must be filed within two years of the date that the victim discovered or should have discovered the injury.

Again, there are exceptions, but all medical malpractice claims must be filed no later than four years from the date the malpractice happened, even if the victim was still unaware of the malpractice for more than four years. If the malpractice victim is a minor, the statute of limitations is generally longer, and if you were prevented in some way from exercising your rights, you may still be allowed to file a claim. Finally, to reiterate, because every case is different, the victims of medical malpractice will need to have an experienced medical malpractice attorney assess the details of the case before taking any legal action.

By: Stephen Phillips

Stephen D. Phillips is the managing partner at the Phillips Law Offices in Chicago. He earned his Juris Doctor from Loyola University in 1985 and his B.A. from the University of Iowa in 1981. He is an extensively published writer and sought-after lecturer on legal topics ranging from medical malpractice to tort reform. Mr. Phillips is also the recipient of a number of awards and honors from various legal and community groups.