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How To Prove A Medical Malpractice Claim

What Is A Medical Malpractice?

When you fall sick, the most obvious thing you are likely to do is to call the doctor or rush to the nearest hospital for help. It is normal to put your hope for recovery in the hands of a trained and licensed physician. 

However, sometimes a physician can fail to ask the right questions, order the right tests, refer you to the right specialists, or even tell you the side effects of prescription medicine before sending you home with it. This is a high level of medical negligence that can cause a serious personal injury or even death.

Medical malpractice is a legal term referring to the negligence by a medical professional or health facility to discharge their duty according to the industry standards, hence leaving a patient with serious injuries, permanent disabilities, loss of income, or wrongful death. 

In case you have gone through such an experience, you can sue for damages.

However, proving that a medical error caused your injuries can be challenging for clients. An experienced medical malpractice lawyer can help you build a solid case and obtain the compensation you deserve. 


This article will guide you on the steps you need to take to prove a medical malpractice case and where to go for a free consultation.


When To File A Medical Malpractice Case

You could file a claim against a doctor, nurse, pharmacist, surgeon if you sustained serious injuries due to their recklessness or negligence. 

Examples of medical malpractice claims include but are not limited to the following:


Surgical Errors

Sometimes, patients go through unnecessary amputations due to a doctor’s negligence. 

If you or a family member sustains injuries or dies because a healthcare worker used the wrong dose of anesthesia during surgery, conducted the wrong operation, or left foreign objects in the body during an operation, you can sue for damages. 

The Illinois law requires you to file your case within two years from the date of discovery and not more than four years.


Childbirth Injuries

Suppose you or your newborn suffers injuries or a disability due to a delayed C-section, improper use of equipment. In that case, you can sue the healthcare worker for negligence or carelessness.


Failure To Diagnose Serious Conditions

A doctor can diagnose many conditions by checking your personal or medical history. However, sometimes your records are not sufficient to prove that you are suffering from a condition. Furthermore, symptoms alone are not enough diagnosis. 

Any reasonable doctor would take your history, consider your symptoms and then order a test. If a test requires follow-up checks, they should advise you accordingly or refer you to the right specialist. 

However, if they fail to do all these and your symptoms worsen or end up dead, you or your family may file a medical negligence claim for compensation.

However, if they did everything right, but your condition escalated, or the available drugs could not cure you, they are not liable for any personal injuries or emotional suffering suffered.


Proving A Medical Malpractice Claim: The 4 D’s


Duty Of Care

The first step towards proving a medical malpractice claim is proving that the specific healthcare worker owed you a duty of care. When you fall sick, you are free to be treated by any doctor of your choice. 

However, you must agree with the doctor and produce evidence that you were undergoing treatment when the personal injury, disability, or death occurred. This evidence is contained in your medical documents. 

Since medical records contain sensitive information, you need to consult only with a trusted medical malpractice attorney before disclosing them. Whether you know them personally or not is not the issue. However, an experienced medical malpractice attorney can help you prepare a solid case.


Dereliction Of Duty

For your medical malpractice case to be valid, you need to prove that the doctor’s actions were abnormal. After producing evidence that there was an existing relationship with the doctor, the next step is to show that:

  • They did not act according to the current medical standards
  • Any other reasonable doctor would not have acted that way


This may be among the hardest things to prove and is why medical malpractice attorneys seek the testimony of an expert witness. In Illinois, a plaintiff is further required to file an affidavit of merit proving the existence of the duty of care breach.



Not all medical errors have negative outcomes. For your suit to be valid, you must prove that the doctor’s action or inaction led to injuries. But, again, not all injuries are the same. 

To qualify for compensation, your injuries must have serious effects on your physical, emotional, or financial wellbeing. Illinois does not have caps on medical malpractice damages, and so you can ask for any amount of compensation, including but not limited to the following:

  • Medical bills
  • Lost income
  • Costs related to the extra trips to the doctor
  • Disability
  • Permanent injuries
  • Pain and suffering
  • Loss of companionship
  • Funeral expenses
  • Loss of future income for the family
  • Loss of enjoyment
  • Disfigurement
  • Anxiety
  • Diminished ability to earn a living


An experienced medical malpractice lawyer can help you calculate the damages. After settling on an amount, they can then discuss it with the health care provider’s insurance company.


Direct Cause

Did the injuries occur primarily because of the doctor’s negligence? Were you partly responsible for the injuries?

Most criminal defense lawyers in Illinois will do everything possible to dispute your claims and save the doctor’s face. However, the right medical malpractice lawyers can offer expert review to establish who was at fault. 

Once this is complete, you can now file your case in court or agree on a settlement. Since not all medical malpractice cases go to trial, it is possible to negotiate an out-of-court settlement with the insurance adjuster.


Ready To Make A Claim? Call Michael J. Brennan For A Free Consultation

Michael J. Brennan has been serving in Cook County since 1985, where he has handled cases such as nursing home abuse, dog bites, personal injury, police brutality, and other related practice areas that are equally hard to prove. 

His offices at Orland Park and Chicago, IL, have a team of personal injury lawyers who will go out of their way to do thorough investigations, interview the right people and use all available resources to give you the compensation you deserve. 

Call our Orland Park and Chicago and personal injury team at 708-349-3916 or fill out the online contact form for a free consultation.

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