Medical malpractice cases are not handled the same way as ordinary personal injury cases. They are more expensive to investigate, more complex to litigate, more aggressively defended, and they require a written opinion from a qualified medical expert before the lawsuit can even be filed under 735 ILCS 5/2-622. A general personal injury attorney who handles malpractice on the side - or who advertises malpractice but refers the cases out - is not the same as an attorney who works these cases through to verdict. The factors below are what actually separate the two.
Before any conversation about which attorney to hire, the threshold question is whether the case is actually malpractice. Not every bad medical outcome is malpractice. Medicine is imperfect. Surgeries have complications. Medications have side effects. Some patients do not respond to treatment. A bad result, standing alone, is not a lawsuit.
Malpractice requires a deviation from the standard of care. The standard of care is what a reasonably competent physician in the same specialty would have done under the same circumstances. It is not perfection. It is competence. When a doctor fails to order a test that any reasonable doctor in that specialty would have ordered, when a surgeon makes an error that a competent surgeon would not make, when a hospital fails to follow protocols that every hospital follows, that is a deviation.
The deviation also has to cause the injury. This is the causation element, and it is where many potential malpractice cases fall apart. I have reviewed cases where the doctor clearly deviated from the standard of care, but the patient would have had the same outcome regardless. A missed diagnosis that would not have changed the treatment or the prognosis is a deviation without causation - it is not a viable case.
And the damages have to be significant enough to justify the cost of pursuing the case. Medical malpractice cases are expensive to litigate. Expert witnesses cost tens of thousands of dollars. Record review, depositions, trial preparation, all of it adds up. If the deviation caused a minor, temporary harm that resolved on its own, the cost of pursuing the case may exceed the recovery. That does not mean the doctor did nothing wrong. It means the legal system is not set up to efficiently resolve small-value malpractice claims.
A good medical malpractice attorney will walk through all three elements with you honestly. If the case has a deviation, a clear causation link, and significant damages, the case is worth pursuing. If any of the three is missing, the attorney should tell you so directly and not waste your time or theirs.
Ask how many medical malpractice cases the attorney has personally handled, not how many the firm has handled. Ask what categories - failure to diagnose cancer, surgical errors, birth injuries, medication errors. Ask whether the attorney works the cases themselves or refers them out. Illinois medical malpractice procedure has distinctive features (2-622 certificate of merit, four-year statute of repose, loss of chance under Holton v. Memorial Hospital) that an out-of-state malpractice lawyer or a general personal injury attorney does not necessarily know. Specific Illinois experience matters.
Every Illinois medical malpractice complaint must be filed with an affidavit from the plaintiff's attorney and a written report from a qualified healthcare professional confirming the case has reasonable and meritorious basis. The healthcare professional must be in the same specialty as the defendant. Getting the right expert in the right specialty is its own skill - a cardiologist's review of a cardiology case is not interchangeable with an internal medicine review. Ask the attorney how they identify and retain experts, and whether they have specific names in mind for a case like yours.
Expert review fees alone can run into the tens of thousands of dollars before the lawsuit is even filed. Depositions of treating physicians and defense experts add more. Trial costs add more still. A firm that cannot advance those costs cannot properly investigate or try the case. Ask about case costs directly, what they typically run, and how they are handled if the case does not succeed.
Defense insurance carriers know which firms try cases and which firms always settle. The firms that try cases get better settlement offers because the carrier knows the case may go to verdict. A firm that has never tried a medical malpractice case to verdict, or that has not tried one recently, has less leverage at the negotiation table. Ask the attorney directly when they last tried a malpractice case and what the result was.
The most important quality in a malpractice attorney is the willingness to tell you the truth even when it is not what you want to hear. A good attorney will sometimes review records, talk to experts, and conclude the case is not viable - and tell you so directly. That honesty, even when it is hard to hear, is one of the clearest signs you are dealing with someone who treats malpractice work seriously. The attorneys you should be wary of are the ones who promise more than they can deliver.
Check the Illinois ARDC website to confirm the attorney is licensed and in good standing. Read online reviews critically - look for specific descriptions of how the firm communicated, not vague compliments. Look for actual case results that the attorney has obtained, with the understanding that past results do not guarantee future outcomes. Read the firm's own website to see whether they actually write about medical malpractice law in depth (a sign of substantive practice) or whether the malpractice page reads like generic content (a sign that malpractice is not really their focus). Schedule a consultation. Most malpractice firms, including this one, offer free consultations - use that hour to ask the questions in the FAQ section below.
If you have a potential Illinois medical malpractice case and you want an honest review of whether it is viable, call me at 312-500-4500. The consultation is free. There is no fee unless we win.
You may have a case if a healthcare provider deviated from the accepted standard of care and that deviation caused you harm. Common examples include misdiagnosis or delayed diagnosis, surgical errors, medication mistakes, failure to order appropriate tests, and birth injuries. An experienced malpractice attorney can review your medical records with qualified experts to determine if malpractice occurred.
In Illinois, you generally have two years from the date you knew or should have known about the malpractice to file a lawsuit, with an absolute maximum of four years from the date the malpractice occurred (735 ILCS 5/13-212). For minors, the deadline extends to the child's 22nd birthday but no more than eight years after the malpractice.
Medical malpractice attorneys work on a contingency fee basis - you pay nothing upfront and nothing out of pocket. The attorney fee is a percentage of your recovery, and if we don't win your case, you owe nothing. We also advance all case costs, including expert witness fees, which can be substantial in malpractice cases.
Malpractice cases are complex because you need expert medical testimony to prove that the doctor deviated from the standard of care. Illinois law (735 ILCS 5/2-622) requires a certificate of merit from a qualified physician before you can even file the lawsuit. Hospitals and doctors have aggressive defense teams and well-funded insurance companies. That's why you need a lawyer with specific malpractice experience - not a general practice attorney.
Compensation includes past and future medical expenses to correct the harm, lost wages and future earning capacity, pain and suffering, disability and disfigurement, and loss of normal life. In cases involving death, the family can pursue a wrongful death claim. There is no cap on compensatory damages in Illinois medical malpractice cases.
Five questions that separate a malpractice attorney from a general personal injury attorney. First: How many medical malpractice cases have you personally handled, and what types? (Some firms advertise malpractice but refer the cases out - you want the attorney who will actually work the case.) Second: Who are the experts you would use for a case like mine, and how do you decide which specialty to retain? (The 2-622 process requires a qualified expert in the same specialty as the defendant - the attorney should have specific names in mind.) Third: How are case costs handled, and what is your estimate of the expert review and litigation costs for a case like mine? (Malpractice case costs run into tens of thousands of dollars - the firm has to be willing and able to advance them.) Fourth: Do you try cases, or do you primarily settle? (Defense insurance carriers know which firms try cases and which do not, and that knowledge directly affects settlement value.) Fifth: If after the expert review the case does not appear viable, will you tell me directly and explain why? (A good malpractice attorney is honest about which cases are not viable - that honesty is one of the best signs you are dealing with someone who treats the work seriously.)
Section 2-622 of the Illinois Code of Civil Procedure requires that every medical malpractice complaint be accompanied by (1) an affidavit from the plaintiff's attorney stating that a qualified healthcare professional has reviewed the records and (2) a written report from that healthcare professional confirming that there is a reasonable and meritorious basis for filing the case. The healthcare professional must be in the same specialty as the defendant for most cases. Failure to attach the affidavit and report can result in dismissal of the case. The 2-622 requirement is a consumer protection measure intended to screen out frivolous malpractice claims, but it also means that the attorney has to invest substantial time and money in expert review before the case is filed - the expert opinion has to be obtained first. By the time a 2-622 complaint is filed in court, the attorney has already concluded the case has merit and has the expert support to back it up.
Under the Illinois Supreme Court's decision in Holton v. Memorial Hospital (1997), an Illinois medical malpractice plaintiff can recover even when the doctor's negligence did not directly cause the underlying disease, but reduced the patient's chance of a better outcome. The classic example is a delayed cancer diagnosis: the doctor's failure to diagnose did not cause the cancer, but the delay caused the cancer to advance, reducing the patient's chance of survival or curative treatment. The plaintiff can recover for that loss of chance even though the malpractice did not cause the cancer itself. Loss-of-chance cases are common in failure-to-diagnose malpractice and require careful expert testimony about how earlier diagnosis would have changed the available treatment options and the statistical survival outcomes. Not every attorney who takes malpractice cases is comfortable handling loss-of-chance analysis, which is one of the reasons asking the prospective attorney about Holton specifically is a useful screening question.
Would you like to know more about how to choose personal injury attorney?
If you or a loved one is dealing with a situation like this, give us a call any time, day or night. We are here to help. 312-500-4500
Scott DeSalvo founded DeSalvo Law to help injured people throughout Chicago and surrounding suburbs. Licensed to practice law in Illinois since 1998, IARDC #6244452, Scott has represented over 3,000 clients in personal injury, workers compensation, and accident cases.
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