When a hospital’s employees or affiliated physicians negligently perform a surgery or provide negligent medical care that results in a patient’s death, you can sue the hospital for wrongful death. These cases are often complex and require analyzing medical records and documents, consulting with doctors and other expert witnesses, and questioning medical providers in depositions.
Given the complicated issues in wrongful death claims against hospitals and doctors, you should consult with your wrongful death attorneys to determine whether you have a claim and to identify the bad actors that caused your loved one’s death.
Below you will find answers to important questions you should consider when pursuing a wrongful death lawsuit against a hospital:
In this Article
Is it medical malpractice or wrongful death?
In Illinois, whenever a person dies due to the negligence of another, the law considers it a wrongful death, even when it is due to medical malpractice. However, these medical malpractice cases are oftentimes complex and require medical reports and affidavits before a lawsuit can even be filed.
Illinois Probate Court
To file a wrongful death claim against a hospital, a loved one must first open an estate in Illinois Probate Court and be appointed as a personal representative. To be appointed a representative, you must either be named as an executor in a will or must file a petition for letters of administration to become administrator of the estate. For more information on how to complete this process, see the comprehensive Probate Court Handbook from the Lake County 19th Judicial Circuit.
Why Enlist the Help of a Wrongful Death Attorney
Once a personal representative is appointed, the personal representative must also obtain an affidavit of merit and a reviewing health provider’s report pursuant to 735 ILCS 5/2-622. Opening an estate and obtaining the necessary medical records, reports, and affidavits can be time consuming, expensive, and complex. So you should consult your lawyer before filing a wrongful death claim for medical malpractice by a hospital. At The Kryder Law Group, our experienced team of medical malpractice attorneys are well versed in handling wrongful death cases. Contact us for a free consultation to talk about your case.
Can a hospital be held liable for wrongful death?
When a hospital’s employees are negligent in their medical care that results in the death of a patient, a hospital can be sued in a wrongful death action pursuant to the legal theory of vicarious liability. Under vicarious liability, if an employee is negligent when acting within the scope of their employment, then their employer is also liable for the negligence of that employee. In other words, you can hold the hospital liable for wrongful death and you can sue the hospital. Instead of using employees, hospitals usually hire doctors and nurses as independent contractors. These doctors and nurses employed by the hospital as independent contractors is in an attempt to shield themselves from liability.
Examples of Hospital Liability
Nonetheless, hospitals can also be liable if they were negligent in hiring a doctor or nurse regardless of whether they are considered independent contractors or are employed by the hospital. Hospitals are also liable for faulty medical equipment, for unsafe policies and procedures, and for unsafe practices that led to the death of a patient.
Miscalibrated or broken medical devices
Inadequate or insufficient medical devices
Unsanitary surgical tools
Poor fall prevention plans
Poor sanitation plans
Understaffed medical departments
Failure to timely diagnose fatal or catastrophic medical conditions
Can a doctor be held liable in a wrongful death claim?
Doctors can also be held responsible if their malpractice or medical negligence results in the wrongful death of their patients. To prove wrongful death against a doctor, a plaintiff must show that the doctor:
owed a professional duty of care to their patient,
breached their professional duty of care,
that breach caused the patient’s death, and
damages, such as pain and suffering, lost wages, grief, and loss of affection.
The plaintiff must also obtain the necessary 735 ILCS 5/2-622 affidavits and reports before filing.
Do you have questions about a wrongful death case? Get help from the experienced lawyers at The Kryder Law Group.
Can you sue the hospital and the doctor for wrongful death?
Both the doctor and the hospital may be sued if they are responsible for the wrongful death of a patient. Oftentimes multiple parties are responsible, and this rule holds especially true in a hospital setting where multiple nurses, doctors, and treaters provide care for a patient. When multiple parties negligently caused a patient’s death, they typically should all be named as defendants in a single lawsuit. At trial, the jury will have the opportunity to assess fault against each defendant.
What if there are multiple doctors involved?
Since hospital patients are oftentimes seen by several nurses and doctors in a single day, it can be difficult to determine which treaters were responsible for a patient’s wrongful death. When multiple treaters are responsible, they should all be named as defendants.
A plaintiff should work with their lawyer to obtain their loved one’s medical records and documents, which can be essential to identifying which treaters may have committed malpractice. Oftentimes, you will need to retain and consult with multiple expert in the field to determine the proper standard of care and whether treaters violated that standard. This process can be complex and expensive, so you should consult with your lawyer to determine the best course of action.
Is it hard to sue a doctor or hospital?
Suing a hospital or doctor can be complex. Under Illinois law, a plaintiff must obtain an physician’s affidavit and report showing that they have a meritorious claim before they can even file suit. The contents of this affidavit and report are governed by the Illinois statute 735 ILCS 5/2-622, which requires that plaintiffs include an affidavit with their lawsuit declaring that they have consulted and reviewed the factors of the case with a health professional who:
is knowledge of the issues involved in the case;
practices, has practiced, or has taught in the same field of medicine in the past six years; and
is qualified by experience or demonstrated competence in the field of medicine in the case.
That affidavit must also confirm the health professional reviewed the medical records and other relevant material and determined, in a written report, that there is a reasonable and meritorious cause for filing the action. This rule applies to both hospitals and any treaters. A separate affidavit and report is required for each defendant when there are multiple defendants.
What do you have to prove to win a wrongful death lawsuit against hospital?
To prove wrongful death against a hospital, a representative of the deceased patient must show the hospital:
owed a professional duty of care to their patient,
breached the professional duty of care,
that breach caused the patient’s death, and
the death caused damages.
Damages typically include, but are not limited to, compensation for the patient’s pain and suffering, loss of a normal life, lost wages, medical expenses, and loss of care and affection for a surviving spouse or family member.
Will a wrongful death lawsuit against a hospital take longer?
The length of time it takes for a wrongful death lawsuit to resolve can vary substantially from case to case, so it is difficult to put an exact timeframe on when the case will be over. Some cases are straightforward and are resolved quickly, while other cases may take many months or even longer to resolve.
Due to their complexity, wrongful death lawsuits against hospitals oftentimes involve obtaining and reviewing thousands of pages of medical records, deposing and interviewing numerous treaters and other witnesses, and consulting with multiple experts in the field. Hospitals and treaters usually fight the cases in court, which can also slow the resolution process.
Can you sue a hospital years later?
A statute of limitations sets a time limit for parties to sue a defendant. If a lawsuit is not filed within that time, the case is typically dismissed. Plaintiffs have two years to file a wrongful death lawsuit under the Illinois statute of limitations (735 ILCS 5/13-212). This two year deadline begins when the plaintiff knew or should have known of the injury, although 735 ILCS 5/13-212 requires that the lawsuit must be brought within four years after the wrongful death regardless of the knowledge of the plaintiff.
Exceptions have been enacted when the plaintiff was a minor at the time of their loved one’s wrongful death. In this case, the plaintiff must file a lawsuit within eight years after the wrongful death or before the plaintiff’s 22nd birthday, whichever is earlier (735 ILCS 5/13-212).
What are the chances of winning a lawsuit against a hospital?
While many cases ultimately settle, the changes of winning a lawsuit against a hospital are highly dependent on the facts of the case and the injuries involved. Each case is unique and requires its own analysis, investigation, and consultation. The evidence oftentimes involves complex medical records and expert witnesses that may be difficult for a jury to understand.
Get Help from an Experienced Wrongful Death Attorney
One of the strongest ways to improve your chances of prevailing on a wrongful death case against a hospital is by hiring experienced medical malpractice attorneys who understand the medical issues and the courtroom. Our medical malpractice attorneys can review your case, consult with experts in the field, and communicate with the hospital’s representatives to put you in a strong position to favorably resolve your claims.
How much can you get for suing a hospital?
The settlement amount or, in the event the case goes to trial, jury award depends on the claims brought and the injuries involved when you sue a hospital for wrongful death. In Illinois, a plaintiff can typically file a lawsuit for a loved one’s wrongful death under the Wrongful Death Act and the Survival Act, which allows recovery and compensation for:
Pain and suffering
Loss of a normal life
Lost past and future wages
Loss of household care
Loss of care and affection
Grief, sorrow, and mental suffering
In addition, the plaintiff may also file their own claims for compensation due to loss of consortium associated with their loved one’s death. Compensation could even help relieve the burden of funeral and burial costs for the surviving family members.
The case’s value is not just dependent on the injuries however, as insurance companies also consider the likelihood that the plaintiff will prevail at trial before considering settlement. The experienced medical malpractice attorneys at The Kryder Law Group, LLC will help you evaluate your case so that you can obtain a favorable settlement.