In Illinois, a patient injured through medical malpractice may bring a cause of action under the theory of "res ipsa loquitur" or failure to inform. A hospital may be held liable for a negligent physician or employee through the theory of ostensible agency (vicarious liability). If a plaintiff's contributory fault is more than 50 percent, he or she cannot recover.
735 ILCS 5 - Code of Civil Procedure
2-622 - Healing Art Malpractice
In a medical malpractice action to recover damages for injuries or death, the complainant must assert in the pleadings that the negligence arose from either:
- res ipsa loquitur (the thing speaks for itself) or a failure to inform the patient of the inherent risks. The doctrine of res ipsa loquitur provides that that the medical result complained of would not have ordinarily occurred in the absence of negligence on the part of the defendant (a showing of an unusual, unexpected or untoward medical result which ordinarily does not occur in the absence of negligence is enough to prove the doctrine); or
- failure to inform where a review of the medical record shows that a reasonable health professional would have informed the patient of the consequences of the procedure.
2-624 - Ostensible Agency
A hospital is liable for the malpractice of one of its physicians or other personnel under apparent or ostensible agency (vicarious liability). A plaintiff asserting ostensible agency must allege with specific facts and by a preponderance of the evidence that:
- the alleged hospital affirmatively represented to the plaintiff that the alleged physician was the hospital's actual agent;
- that the plaintiff reasonably relied upon this representation; and
- that a reasonable person would not have sought treatment from the alleged hospital if the person was aware that the physician was not the alleged hospital's actual agent.
2-1115 - Punitive Damages
Punitive, exemplary, vindictive or aggravated damages are not recoverable in medical malpractice actions.
2-1115.1 - Limitation on Recovery of Non-Economic Damages
In actions seeking damages on account of death or bodily injury based on negligence under any theory or doctrine, recovery of non-economic damages are limited to $500,000 per plaintiff.
2-1115.2 - Economic and Non-Economic Loss
In actions for bodily injury or death, damages are the following:
- Economic loss - tangible damages such as damages for past and future medical expenses; and loss of income or earnings
- Non-economic loss - intangible damages including but not limited to damages for pain and suffering, disability, disfigurement, loss of consortium, and loss of society
- Compensatory (actual) damages - the sum of economic and non-economic damages
2-1116 - Limitation on Recovery (Contributory/Comparative Fault)
In actions for bodily injury or death based on negligence, the plaintiff is barred from recovering damages if the trier of fact finds that the contributory fault on the part of the plaintiff is more than 50% of the proximate cause of the injury or damage for which recovery is sought. The plaintiff shall not be barred from recovering damages if the trier of fact finds that the contributory fault on the part of the plaintiff is not more than 50% of the proximate cause of the injury or damage for which recovery is sought, but any damages allowed shall be diminished in the proportion to the amount of fault attributable to the plaintiff.
Talk to an Attorney Immediately
If you were injured because of medical malpractice in Illinois, you may recover compensatory damages against the negligent physician. A hospital may be held vicariously liable. However, if your fault toward the injury is more than 50 percent, you are barred from recovery. Find an experienced attorney to discuss the details of your case.
