Illinois Appellate Court Discusses Medical Battery Cases and Potential Affidavit Requirement

An Illinois Appeals Court recently confirmed that some plaintiffs in medical battery claims are required to include a certificate of merit at the same time that they file the initial lawsuit. According to one news source, this was the second appeals court to require the certificate in this type of case.

a-baby-s-coming-1442263Under Illinois law, when a plaintiff files suit against a medical professional alleging negligence, the plaintiff is required to attach a sworn statement, or affidavit, to the complaint indicating that the claim is reasonable and that there is merit to the case. The statement must be based on the plaintiff’s consultation with a medical professional about the circumstances of the case. Medical negligence is also called medical malpractice.

In the recent case, one of the plaintiff’s claims was for medical battery in addition to medical malpractice. In a medical battery action, a plaintiff claims that the treating doctor touched or operated on a part of his or her body without the plaintiff’s consent during a medical procedure. In the first medical battery case that the court addressed, a surgeon cut the patient’s tendons during surgery, even though the surgery did not require that the tendons be severed, and the patient had not authorized that the tendons be cut.

Medical Malpractice and Battery Actions Share Special Filing Requirement

Medical malpractice cases and medical battery cases are similar in many ways. In a medical malpractice case, a doctor is liable for damages if he or she fails to treat a patient with the appropriate standard of care, and this failure causes an injury to the patient. Under Illinois law, this standard of care requires that a doctor provide the same level of treatment as other doctors in the field, and it takes into account patient-specific factors such as age and additional medical conditions.

Medical battery typically occurs in the surgical context, and it involves the surgeon performing procedures that go beyond the consent given by the patient prior to the surgery. Unlike someone suing for medical malpractice, a plaintiff suing for medical battery does not need to establish negligence, or a failure of the doctor to take reasonable care. In addition, the patient does not have to show an actual injury in order to prevail in a medical battery case.

Despite their differences, medical battery and medical malpractice cases share enough similarities that both may require an affidavit of merit to be filed simultaneously with the filing of the lawsuit. According to the courts, both types of cases require the affidavit when they involve questions that only medical professionals, not lay persons, can answer.

The failure to include the affidavit is grounds for dismissing the case. Failing to file the case within two years from the time that the patient discovered — or should have discovered — his or her injury is also grounds for dismissing a medical malpractice claim.

Have a Doctor’s Actions Exceeded the Scope of Your Consent or Caused an Injury?

Lawsuits against doctors are full of filing and procedural nuances that can trip up just about anyone. At Moll Law Group, our years of experience and attention to detail ensure that all medical malpractice cases are decided based on the injuries you suffer, not courtroom technicalities. Our attorneys take care of the small stuff so that together we can focus on getting you the compensation you deserve. That is our promise to you. For a free consultation, call Moll Law Group at (312) 462-1700.

See More Posts:

Six-Vehicle Chain-Reaction Accident Caused When Semi-Truck Rear-Ends Van>, Illinois Injury Lawyer Blog, October 20, 2015.

Fatal O’Fallon Truck Accident May Have Been Caused by Medical Emergency, Illinois Injury Lawyer Blog, October 18, 2015.