31 Aug, 2022

How to Sue a Private Hospital for Malpractice

Author Todd A. Strong

To sue a private hospital for malpractice, you must act within the statute of limitations and prove liability. The lawyer determines whether the hospital itself or an independent contractor was negligent. The distinction matters because most doctors who practice or operate at hospitals are not employees of the hospital.

If the doctor was an independent contractor, you might prefer to take action against the doctor, but not the facility. That said, there are cases where a victim can sue the hospital even if the doctor was an independent contractor. Figuring out how to sue a private hospital for malpractice comes down to having a lawyer assess your case, determine whether the hospital is the right party to sue, get medical experts and other witnesses to review your medical records, and calculate damages.

How to Sue a Hospital for Malpractice

The first step to take after you realize malpractice has occurred is to get a lawyer to review your case. This assessment can take time, as lawyers have to gather medical documents and consult witnesses. A lawyer will also work to prove fault by establishing a relationship between the negligent act, your injuries, and the damages you have suffered.

The steps for suing a hospital for malpractice are as follows:

  1. Consult a lawyer, ideally in plenty of time before the statute of limitations deadline
  2. Assess whether the hospital is involved in the negligence (your lawyer and medical experts typically do this)
  3. Get various medical records. Hospitals typically keep medical records for a few years and must give you the records when you request them. The hospital can charge copying fees, though.
  4. Calculate your damages (lawyers help you determine past and future lost income, pain and suffering, decreased quality of life, and other damages)
  5. Prepare to file lawsuits against at least one party (it might not be possible to add parties later, so you want to include the hospital and all the appropriate parties when you file)
  6. Follow procedural rules, and file the complaint/lawsuit. The complaint includes your name, the names of the responsible parties, describes how the injury happened, the harm it has caused, and the amount of compensation you expect.

How Long Do Victims Have to Sue for Malpractice?

Patients should act as quickly as possible once they realize malpractice occurred. Filing quickly helps to ensure evidence is preserved to support a claim. It is also easier to file insurance claims and pursue cases when the memories of victims and witnesses are fresh.

The statute of limitations for medical malpractice cases in Illinois is two years, though some exceptions apply. Two years is not a long time, and the malpractice may have started even earlier than you realize. The clock starts ticking when medical negligence is discovered or reasonably should have been discovered. Exceptions apply to cases involving victims who are minors. The statute of limitations for these cases doesn’t begin until the underage victim’s 18th birthday. 

Similarly, if you become legally disabled after the medical malpractice (whether due to the incident or not), you could have two years to file from the time the disability is removed. Permanent mental illness is a possible legal disability in these circumstances. Even if you believe exceptions apply in your case, try not to dawdle.

Suing a Private Hospital Is Different From Other Medical Malpractice Cases

In medical malpractice, the plaintiff typically sues a doctor or other medical professional. Suing a hospital is somewhat atypical, but does happen.

You and your medical malpractice lawyer may decide to sue a hospital if you were injured in a negligent facility. This avenue is more common when the hospital employs the doctors or professionals who caused your injury but is possible in some cases where the at-fault party is an independent contractor. 

Employers can be sued if their employees are working within the scope of their employment when they were negligent. This concept is called employer liability.

Hospitals do not always disclose that medical professionals are independent contractors. When you reasonably believe that a doctor works for a hospital, this is called apparent agency. Many times, admissions forms delineate that your doctor is not a hospital employee. In emergency room cases, you may not have been able to sign an admissions form before treatment. In these situations, your odds of suing the hospital for a nonemployee's medical malpractice may be higher.

Hospitals also have the duty to perform a sufficient background check on independent contractors. This does not always happen, and hospitals do sometimes allow doctors with histories of medical malpractice payouts or disciplinary histories to practice. If the hospital you are suing failed to perform an adequate background check that would have shown a doctor’s troubling history, that could make for a good reason to sue the facility.

It is not always clear whether a doctor is an employee of the hospital or an independent contractor. Even if the hospital and doctor say they are not employers and employees, they could be in practice. Some issues your hospital malpractice lawyer might weigh include whether the hospital sets the doctor's hours pays the doctor a salary, selects which patients the doctor treats, and sets the doctor's fees.

Getting Proof for a Medical Malpractice Lawsuit

Medical malpractice comes in many forms, and the evidence can be varied. Malpractice is not always straightforward to prove. Healthcare professionals do cause injuries, but not all result from malpractice. To win a medical malpractice lawsuit, you must show negligence with several elements present.

Medical bills that indicate a doctor-patient relationship: This help to establish a duty of care. This element is fairly easy to show. You can use medical bills as proof to show that doctors, nurses, or other professionals giving you medical care had agreed to treat you following a certain standard of care at the time of the malpractice.

Failure to properly read test results, identify symptoms, follow standard treatment protocol, order necessary surgeries, or other elements that breach duty of care: Medical negligence occurs when medical professionals breach their duty of care. You can show this by using witnesses, photos, and paper trails to show that doctors followed irregular protocols for childbirth, cancer treatment, or the condition in question.

Similarly, you can show that any reasonable professional reading your test results would have come to a different conclusion than the person you are suing. Expert witnesses can testify as to why the negligence occurred. Sometimes, physicians are not properly trained for your issues or are intoxicated. Alternatively, the hospital may have been understaffed. 

Causation Between the negligence and your injuries: The medically negligent act must have caused your injuries. If you do not have injuries, then your lawsuit is probably not going anywhere. Your lawyer can help you get competent medical assistance to show the relationship between negligence and your injuries. Acting as quickly as possible once you discover the negligence helps make the cause and effect much clearer. Proving a direct relationship between negligence and injuries is trickier, but still possible when pre-existing conditions are in play.

Lost income, medical bills, and/or other damages: Medical malpractice often leads to lost wages, lost future earning potential, massive medical bills, ongoing care, permanent injuries, disfigurement, pain, and suffering, decreased quality of life, and even death. Your medical malpractice lawsuit must contain proof of these damages.

Types of evidence that prove malpractice include photos and videos of your injury and recovery, your employment records, expert testimony from various healthcare providers, and your testimony.

Why Are Medical Records Important for My Case?

One reason medical records are so important is that they pinpoint who patients saw and when. Even a patient entering a hospital for a relatively simple reason is bound to have encounters with multiple healthcare professionals.

This may include radiologists, anesthesiologists, physicians, medical assistants, nurse practitioners, registered nurses, lab technicians, pharmacists, administrative personnel, security officials, and insurance specialists. It is easy for patients to forget who they saw, and medical records provide documentation to clarify this. 

A variety of professionals could be negligent in different ways in a single visit, such as:

  • The pharmacy incorrectly filling prescriptions
  • Staff not rendering medical assistance in emergencies
  • Nurses not conveying an accurate medical history to the doctor
  • Not monitoring patients during surgeries, leads to falls off tables

Common Examples of Medical Malpractice

Medical malpractice occurs when a medical professional, medical provider, or hospital, deviates from the reasonable standard of care a situation demands. Cases of medical malpractice are all too common in Chicago hospitals. Birth injuries are a top cause of medical malpractice lawsuits. Other common examples of medical malpractice are surgical errors, medication errors, inadequate security, premature discharge, refusing admission to patients, malnutrition, dehydration, non-sterile procedures, and failure to perform a competent background check.

During Labor and Delivery

Many babies suffer birth injuries caused by malpractice. Facial paralysis, brachial plexus palsy, hypoxic ischemia, fractures, cerebral palsy, and spinal cord injuries can result from medical negligence. However, it is not always immediately apparent that a baby has been injured..

Signs of possible birth injuries include the baby's inability to move one side of the body, seizures, failure to meet milestones such as crawling or standing, blindness, deafness, feeding difficulties, and arching of the back or neck.

Malpractice may occur when medical professionals do not identify risk factors during pregnancy, fail to recognize fetal distress, improperly use forceps, misdiagnose life-threatening conditions as something less serious, or pull too much on the baby's head, shoulders, or arms.

Many mothers also receive their share of injuries during childbirth. Some do resolve themselves, but plenty does not. Uterine ruptures, severe vaginal tears, infections, diabetes, blood clots, hemorrhaging, and even death can result from malpractice.

In the Emergency Room

In the emergency room, the top errors are making wrong diagnoses, not triaging and failing to treat patients in a timely manner, not running the proper tests, surgery errors, not calling in specialists, and forgetting to check for allergies and contraindications when giving medications.

Medical malpractice can also occur when medical professionals do not keep patients for admission or observation, or when they discharge patients without diagnosing them or referring them. This happens when patients are discharged due to a lack of insurance. Shift changes and patient transfers are fertile ground for medical malpractice because not everyone communicates, and patient treatment can fall through the cracks.

During Diagnosis

Medical conditions such as stroke, heart attack, cancer, lupus, Parkinson's disease, and multiple sclerosis (MS) are misdiagnosed more than others. Misdiagnosis can mean valuable lost time in treating a disease. For breast, lung, skin, ovarian, and many other cancers, a delayed or missed diagnosis can turn a treatable condition into a terminal disease.

During Surgery

Examples of surgical errors include unnecessary surgery, nerve damage, organ or tissue damage, operating with non-sterile equipment, leaving equipment inside a patient, providing substandard care after surgery, and performing procedures on the wrong body part. 

C-sections, spinal fusions, knee and hip surgeries, pacemakers, gallbladder removals, tonsillectomies, radical prostatectomies, and hysterectomies are examples of surgeries that are not always necessary. In fact, about one in every three U.S. births involves a C-section. Compare that with the World Health Organization guideline that only 10% to 15% of births should involve C-sections. Nearly 20% of C-sections in the United States could be unnecessary.

Plenty of risks are involved with anesthesiology, too. For example, an anesthesiologist might fail to monitor vital signs, administer too little or too much anesthesia, or forget to review patient records for anesthesiology risk factors. 

Your medical records help lawyers and their expert witnesses determine if your doctor or healthcare professional acted negligently. These experts review whether other professionals in the same situation could reasonably have made the same choices your medical professional did. Expert witnesses also help prove that the negligence severely impacted you, for example, turning treatable cancer into terminal cancer.

About The Author

Personal Injury Lawyer Todd A. Strong Illinois workers’ compensation and personal injury lawyer Todd A. Strong is the founder of Strong Law Offices in Peoria, Illinois. Todd brings considerable legal knowledge, experience, and skill to the table to ensure injured victims throughout the state are treated with respect, dignity, and fairness.
Years of Experience: More than 20 years
Illinois Registration Status: Active
Bar & Court Admissions: Illinois State, 1994
U.S. District Court, Central District of Illinois, 1994
U.S. District Court, Northern District of Illinois, 2022
U.S. District Court, Southern District of Illinois, 2023

About The Author

Personal Injury Lawyer Todd A. Strong Illinois workers’ compensation and personal injury lawyer Todd A. Strong is the founder of Strong Law Offices in Peoria, Illinois. Todd brings considerable legal knowledge, experience, and skill to the table to ensure injured victims throughout the state are treated with respect, dignity, and fairness.
Years of Experience: More than 20 years
Illinois Registration Status: Active
Bar & Court Admissions: Illinois State, 1994
U.S. District Court, Central District of Illinois, 1994
U.S. District Court, Northern District of Illinois, 2022
U.S. District Court, Southern District of Illinois, 2023