Medical malpractice occurs when a doctor or other healthcare professional is negligent, deviating from the standards of care in their profession, and causes injury to a patient. The negligence could occur during the diagnosis, treatment/surgery, aftercare, or health management of a patient.  Illinois lawyers who take these cases are typically looking for for negligence that leads to serious injuries.

If you or a relative have suffered from medical malpractice, you will want to file a lawsuit against the doctor, healthcare professional, and/or hospital to get the compensation you deserve for your injuries and to help prevent something similar from happening to another family. Under Illinois law, you have to meet certain conditions first before filing that medical malpractice lawsuit. If those conditions are not met, the court could dismiss your case.

The two perquisites are: 1) the plaintiff’s 622 affidavit of merit, and 2) the report of the reviewing healthcare provider.

622 Affidavit of Merit  

The Illinois Code of Civil Procedure, 735 ILCS 5/2-622, states that a person (plaintiff) alleging medical malpractice and seeking “damages for injuries or death by reason of medical, hospital, or other healing arts malpractice” must file an affidavit stating that they have consulted with a healthcare professional who:

  1. Is knowledgeable in the relevant issues involved in the particular action;
  2. Practices or has practiced within the last 6 years or teaches or has taught within the last 6 years in the same area of health care or medicine that is at issue in the particular action; and
  3. Meets the expert witness standards set forth in 735 ILCS 5/8-2501.

In plain English, what happens is the attorney you hire will complete this form. It’s kind of odd because it’s basically just a piece of paper that says they consulted with a doctor who says malpractice occurred.  Then they attach that report.

Written Report from a Healthcare Professional 

Along with the 622 Affidavit, the plaintiff must include a written report from the healthcare professional with whom they consulted. The report includes the healthcare professional’s opinion that there is merit and reasonable cause for filing a lawsuit.

A single written report must be filed for each defendant. If both a doctor and the hospital are believed to be negligent, two reports must be written and submitted.

Oddly although the report is provided, it’s not actually signed by the doctor and doesn’t have their letterhead.  So the doctor/hospital you are suing doesn’t actually know what expert is testifying against them. I’ve certainly heard stories of lawyers who have doctor friends that will provide these reports just to get the cases filed, but won’t serve as expert witnesses if the case proceeds. In other words, they don’t fully believe what they are writing and the lawyer will have to find a different and better expert if they want to get any compensation for their clients.

Your lawyer will find the expert to create this report.  This will happen after months of record review by your attorney, their in house nurse/medical consultants and talking to doctors who are experienced in medical malpractice lawsuits. It’s important to identify the right type of doctor to testify because the goal isn’t to file a lawsuit, the goal is to win the lawsuit.

Why do Illinois courts require the 622 Affidavit and written reports? In theory it’s designed to prevent frivolous lawsuits. If you can’t find a doctor who says the health care provider screwed up, then a lawsuit can’t be filed. In that regard it’s a really good rule. While I’m only interested in the rights of potential plaintiffs, there certainly is an argument that can be made that the expert witnesses should be disclosed right away. Without it, a slimy attorney could theoretically fake an affidavit to get a case filed.  That said, the reality is that these cases are so expensive and so hard to win that most law firms won’t take them on if they don’t think they have merit.

One important thing to know is that the “best” firms in these cases don’t ask their clients to find an expert and they don’t ask their clients to pay for the expert.  If the attorney you hired is asking you to find a doctor to testify, then you either don’t have a case or went to the wrong firm.

We realize that this information is a bit technical and may seem like a lot of legal mumbo jumbo. Feel free to contact us if you’d like to talk through your medical malpractice case. We can discuss the next steps and how an attorney can help at no cost to you. You can speak with a lawyer for free any time at 312-346-5320.