How to Prove Medical Malpractice: the Basics

In order to successfully pursue a medical malpractice claim, two legal hurdles must be cleared. First, you must show that there was a violation of the standard of care. It must be a mistake, not simply a difference of opinion regarding diagnosis or manner of treatment. Second, you must prove that the violation resulted in a condition that otherwise would not exist. These opinions must be provided by a physician who practices in the same field. This requirement does not exist for accountants, architects, lawyers, etc. where no such written opinion is required.

You would think that the second hurdle might be redundant as every error would result in a new medical problem. However, that is not the case. For example, if a radiologist fails to note the return of a tumor that appears in an x-ray and six months later the tumor has metastasized and becomes fatal, you might conclude that a malpractice case exists. However, if it is a strain of cancer that would have made the same progression even if treated six months earlier, the second hurdle has not been cleared and there is no case to pursue. Similarly, if a robotic surgery is concluded without recognizing an internal bleed, the condition could quickly become septic and life threatening. However, if a nurse or doctor notes an unexpected change in condition and the problem is quickly resolved, there would be no practical reason to pursue the claim.

The second example raises another issue. Plaintiff’s attorneys can only collect actual damages. We cannot recover for our clients for something that may have happened, but did not. For example, if I leave my office, travel south on Seventh Street and, as I cross South Grand with a green light, a drunk driver traveling 90 miles an hour in an easterly direction misses my car by half an inch, he has behaved negligently and criminally, but I have no civil case. He simply missed me. The fact that I would have been seriously injured in half a second does not create a case for damages.

Similarly, if a patient is misdiagnosed, given the wrong medication, undergoes an unnecessary procedure, etc., but the error does not cause a complication or is quickly remedied, there are little or no damages to pursue.

Unfortunately, medical malpractice cases are also expensive to pursue. Because the opinions that are required must be provided by a physician, costs are incurred each time the physician is asked to review records, issue a report, give a deposition or testify at trial. Illinois attorneys who handle medical malpractice cases are not to appear that they are encouraging or financing lawsuits. As a result, the client must pay these out-of-pocket expenses and, therefore, weigh the potential financial return versus the cost of litigation. Many medical errors are not pursued for this very reason.

If an inpidual believes that a healthcare provider has made a mistake but for one reason or another it is not practical to initiate civil litigation, there is another option. The Illinois Department of Regulation (now the Department of Financial Institutions and Professional Regulation) is responsible for investigating allegations of medical errors. Though the Department cannot do what my firm does, which is attempt to collect civil damages, it can withdraw the license of the healthcare provider if it believes it is so warranted.

Proposed Medical Malpractice Reform

Physicians groups, politicians and the U.S. Chamber of Commerce’s attempts to promote malpractice reform because “frivolous” lawsuits filed by attorneys have drastically increased the cost of medical malpractice insurance are without factual support because lawyers simply do not file such claims. Here are the reasons:

  1. Plaintiff’s attorneys that handle malpractice lawsuits have absolutely no financial, professional or emotional reason to pursue a frivolous case. In fact, the incentives are just the opposite. These cases are handled on a contingent fee and, because of expensive hurdles encountered only in medical cases and statutory financial relief available only to physicians, the time and cost of pursuing such claims are substantial and the potential recovery reduced. There is absolutely no reason for an attorney to bear the expense of a meritless claim. (One of the ironies related to this issue is that it is attorneys, not doctors, who spend time and money weeding out frivolous cases. For every claim pursued, there are twenty that are not. This does not mean that the other twenty cases are without merit. Many of them are not pursued simply because the potential damages do not justify the projected cost of pursuing the claim.)
  2. As previously noted, the State of Illinois requires that a plaintiff desiring to file a Complaint against a health care provider first obtain a written report from a licensed physician with a required amount of experience which concludes that malpractice has occurred and that the plaintiff has suffered injury as a result. It is hard to imagine how a claim which has been certified as meritorious by an experienced physician could yet be “frivolous.”
  3. Doctors are represented by highly qualified defense attorneys who vigorously defend their clients and who are free to request that the presiding judge dismiss a claim because it is without merit. Illinois judges have the right and obligation to do so. Sanctions can even be applied if the court believes that a party is abusing the system.

As frivolous malpractice cases are not a cause of increased insurance premiums, attempts to amend the civil justice system as it applies to health care providers are misdirected. What doctors and their insurers do not want to pay are the damages awarded by a jury of our peers following a trial conducted pursuant to strict rules of evidence, not mythical sums of money paid to inpiduals bringing meritless claims. No insurance company responds to a frivolous claim by writing a check. The next time someone suggests to you that frivolous cases are resulting in outlandish jury verdicts, simply ask them to identify one case which proceeded to trial, regardless of the verdict, that was frivolous in nature.


Determining whether or not you have a valid medical malpractice claim is no easy feat. With over 145 years of combined experience in the state of Illinois, Wolter, Beeman & Lynch, LLP is uniquely qualified to help you in pursuing your medical malpractice litigation. We never charge for a consultation. Give us a call at 217-753-4220 and we can discuss options regarding your claim.