Common Medical Malpractice Defenses

Doctors make mistakes for many reasons. They fail to make a proper or timely diagnosis. They may prescribe the wrong medications. Surgeons often fail to respond to emergencies competently during surgery. Most doctors, even when they make clear mistakes, won’t admit to their mistakes because their livelihood may be at stake. Many physicians will assert every defense possible to deny liability.

At Gainsberg Injury and Accident Lawyers, our Chicago medical malpractice lawyers anticipate the defenses doctors and their insurance carriers often assert. We are ready to contest any legal defenses and rebut any factual defenses.

Contesting that they breached the main elements of a medical malpractice claim

The key elements of every type of medical malpractice claim, whether it’s for birth injuries or injuries to children and adults, are:

• The physician owed the patient a duty of care.
• The physician violated the standard of competent care.
• The lack of competent care causes the patient injuries or death.
• The patient sustained damages as a result of those injuries.

Generally, contesting that a doctor-patient relationship did not exist is difficult. Normally, there are written documents that confirm the relationship. In some cases, such as ER care, the treatment itself indicates that a doctor-patient relationship existed.

In most cases, proving that the patient suffered injuries or that the patient died is fairly straightforward. Other physicians or a coroner can confirm the injuries or that a loved one died. Questions may arise as to whether the doctor’s malpractice caused the injuries – or whether the injuries would have occurred even if the doctor had acted competently. For example, a doctor who fails to diagnose cancer or heart disease may argue that the victim would have had cancer or heart disease no matter what the doctor did.

The commonly contested issue in medical malpractice cases is whether the doctor’s care was not competent.  What qualifies as competent medical care can be difficult, because not all errors will rise to the level of malpractice. Doctors are generally required to perform certain diagnostic tests and offer certain treatments based on those tests. Doctors should generally anticipate complications and emergencies. Many medical cases involve questions about how much over the standard of care line the doctor’s actions were. Emergency care is generally considered more closely because of the lack of time to respond.

Our Chicago medical malpractice lawyers work with skilled physicians who practice(d) in the same medical specialty as the defendant physician – and who can testify that the defendant doctor failed to provide competent medical care.

What are Illinois’ Good Samaritan laws?

Illinois encourages physicians to provide medical care in emergency situations, even though there is no doctor-patient relationship. After all, if you’re choking on a piece of food, wouldn’t you want someone to administer the Heimlich maneuver to save you? The principle behind the Good Samaritan defense is to encourage doctors to provide aid in emergency situations – even though the doctor doesn’t have access to his/her medical equipment or medical facilities.

Doctors have the right to assert that they were just acting as a Good Samaritan and should not be held liable, provided there is an emergency, and the care isn’t grossly negligent. This is why, to use our choking example, the doctor who administers emergency aid in a restaurant and accidentally breaks your rib is generally not liable for that injury.

Illinois has a Good Samaritan Act which our lawyers understand. We also understand why the Act does not apply. Just because there is an emergency does not mean you are owed a lesser standard of care.

Assumption of known risks and informed consent

Almost every diagnostic test, treatment, and surgery has known risks. Doctors have a duty to inform their patients of these risks before administering the treatment. Patients should sign a written consent to perform the procedure/treatment before the doctor proceeds with the procedure/treatment.

If the injury or medical disorder that patient suffers from was one of the known risks of the procedure, then a doctor will likely raise the defense that that patient knew of the potential danger and chose to proceed with the treatment anyway. While patients may assume some risks, our Chicago medical malpractice lawyers often argue that the doctor still acted incompetently – that the risk could have been avoided or could have been managed if the doctor was more careful.

A failure to follow doctor’s orders

Doctors may assert that the patient was partially or fully responsible for his/her injuries or for the worsening of his/her medical condition. Patients who fail to take their prescribed medications, for example, can’t then complain the doctor committed medical malpractice when the patient’s condition worsens due to the failure to take the medications.

The doctor may raise the defense that the patient is completely liable or comparatively negligent. The doctor may also assert that the patient failed to mitigate his/her damages. However, there are times when this defense cannot stand. For example, if you are prescribed a medication that has contraindications for drugs you are already taking, and you are not warned of those potential risks, you may have a claim. If you do not follow medical advice because a doctor failed to consider your medical history, you may have a claim. This is a complicated issue which we can cover during your initial consultation.

Compensation from other sources

Doctors and their insurance companies may try to argue that the worker already receives compensation through a program such as Social Security Disability, private disability insurance, or workers’ compensation. Generally, a medical malpractice victim is entitled to a full recovery from a doctor, hospital, or another health provider who commits medical malpractice. The question is then whether the victim has to pay back some of the damage settlement or verdict to any agencies or companies that initially paid for the patient’s medical bills or lost wages.

The statute of limitations

Generally, a patient in Illinois must file a medical malpractice claim within two years of the date of the malpractice. The date of the malpractice may not always be clear. For example, if a doctor fails to diagnose that a patient has heart disease the patient may not actually learn he/she has heart disease until the patient has an actual heart attack – which can be more than two years after the patient saw his/her doctor.

Our Chicago medical malpractice lawyers often assert that a “discovery rule” should apply. The discovery rule essentially provides that the time to file a medical malpractice claim only starts when the patient knew of (or should have reasonably known) that any malpractice had occurred.

The substantial minority principle

Defendant doctors may argue that while their care deviated from standard medical care, a substantial minority of doctors in their type of practice would have acted in the same manner as the defendant doctor did. We passionately dispute this defense when doctors go “off script,” or try to rationalize an experimental treatment instead of using a tested option that would have served you better.

Filing a medical malpractice claim requires experience and tenacity. Doctors are generally less likely to settle negligence claims than auto drivers and other defendants because their reputation is at issue. At Gainsberg Injury and Accident Lawyers, we have the experience and resources to represent medical malpractice victims. To discuss your medical malpractice claim, call us at 312-600-9585, or complete our contact form to schedule a free appointment.