A lawyer explains malpractice

The 50-year-old woman with multiple health conditions — what doctors call comorbidities — was going to have surgery. Because of her conditions, she and her family were warned by the surgeon that the procedure was risky, and there was a 25% chance she would die. And she did.

Her family called David A. Kaufman, a Northbrook attorney with David A. Kaufman and Associates whose practice concentrates in civil litigation, including medical malpractice. While he was sympathetic with the family for their loss, he ended up declining legal representation in that instance.

“There are many times where bad things happen where it is not the fault of the medical staff,” he told attendees at our recent Patient Advocacy Conference. “There are risks, doctors do the best they can, and bad things can still happen.”

A poor outcome, in other words, doesn't necessarily mean there's a case for a malpractice suit. Though he receives many inquiries in the course of a year, Kaufman estimates he takes only one in 10 cases.

As a patient advocate, I have seen clients suffer harm as the result of a medical procedure or questionable care, but rarely do these cases rise to the standard of malpractice. Kaufman spoke at our conference to educate the audience in the basics of medical malpractice law in Illinois, and it was enlightening.

Malpractice means there has been a breach in the standard of care we hold our medical professionals to, he said. If an anesthesiologist gives the wrong medication and a patient is harmed, malpractice attorneys will consult with other anesthesiologists to determine whether the standard of care was met.

Illinois is known as a “plaintiff-friendly” state because there's no cap on malpractice awards, which can include “noneconomic” losses such as pain and suffering. That said, it's very difficult to file a case.

“The attorney has to certify in every suit that there was a good faith investigation with a medical professional known in their field who agreed there was a potential breach in the standard of care,” Kaufman said. Despite what some people may think, “You can't just file a suit to scare a doctor.”

He said an investigation such as that might cost his firm between $5,000 and $10,000, so he's not going to pursue a case if there's little chance of recovering those costs. When all is said and done, a law firm may pay $100,000 or more to litigate a case of malpractice. If the plaintiff is successful, the lawyer will take a percentage of the awarded damages, often one-third, off the top. This is called a contingent fee arrangement.

Settling a claim before going to trial is often preferred, he said. “A jury of 12 peers may, or may not, like you. There are no guarantees in a trial, so it can feel like rolling dice. The uncertainty will often motivate people to settle.”

Illinois also has a statute of limitations on malpractice claims, Kaufman explained.

“So the courts aren't overwhelmed with things that happened 20 or 30 years ago, you generally have two years from when an injury occurred or you found out it occurred,” he said. “If you come to me a month before that two years is up, I'm not going to take that case because I'm not going to be able to do enough investigation in time to file suit.”

There's also a six-year “statute of repose,” which can possibly allow a suit to be filed later because the harm was not realized within two years — for example, a bit of gauze left behind during a surgery causes an infection several years later. “But you better have a very good reason why you didn't file within two years,” he said.

Even so, Kaufman said, if a person feels there has legitimately been a malpractice, one should seek legal advice sooner as opposed to later.

An ounce of prevention may help you avoid negligent health care. Here are some of my tips:

• Be aware of the risks within certain specialties, and choose your doctor with care. Plastic surgeons, general surgeons, orthopedists and urologists were the top four specialties facing medical malpractice suits in 2021, according to the 2021 Medscape Malpractice Report.

• Ask your doctor about their malpractice history. Most doctors, by the time they're in their 60s, have been sued at least once. But if your doctor is among the 2% responsible for about 40% of lawsuits, you don't want to be their patient.

• Ask questions about your care. Why this procedure or test? Why that medication? A good doctor — and most of them are good — will welcome your questions and your involvement in your own care.

• Consult hospital quality reports if you can decide which hospital to go to. The Centers for Medicare and Medicaid Services publishes this data annually.

I've helped many of my clients avoid medical error in my practice as a patient advocate. Not every negative outcome is the result of negligence, but you can help yourself by being vigilant, following instructions for your care and asking questions.

• Teri Dreher is a board-certified patient advocate. A critical care nurse for 30+ years, she is founder of NShore Patient Advocates (www.NorthShoreRN.com). Her new book, “How to Be a Healthcare Advocate for Yourself & Your Loved Ones,” is available on Amazon. She is offering a free phone consultation to Daily Herald readers; call her at (847) 612-6684. Contact David Kaufman, David A. Kaufman and Associates, at (847) 480-1020.