In a recent case, a woman filed suit against a hospital and her doctor for battery after undergoing a medical procedure. She alleged that she had not given her informed consent for having an intrauterine device (IUD) implanted. About a year after she had the IUD implanted, she found out that her IUD had not been approved by the Federal Drug Administration because of the location to which the device had been shipped.
She filed the complaint but failed to file a medical expert affidavit, as required by state laws. In this particular state, the law required that plaintiffs filing medical malpractice actions file an expert affidavit along with the complaint. However, the woman argued that her claim did not require her to file the expert affidavit because this was a battery claim rather than a medical malpractice claim. Ultimately, the state’s supreme court disagreed, holding that a battery claim against a medical provider based on a lack of informed consent also requires the filing of a medical expert affidavit.
The court held that even though the claim filed was a battery claim, it still had the same requirements of a general medical malpractice claim. Since cases involving the issue of informed consent generally consider the professional standard required in such cases, they are subject to the same requirements no matter which claim is alleged. There is a question of what the professional standard is in obtaining informed consent. As a result, a medical expert affidavit was required, stating that the expert supports the allegations in the claim.
Affidavit Requirement in Medical Malpractice Claims in Illinois
Illinois law requires that any plaintiff filing a medical malpractice action in the state file an affidavit stating that the plaintiff consulted with a medical expert who has taught or practiced in the last six years in the same medical field at issue in the case. The medical expert’s affidavit must state that the expert is qualified in the field at issue. This expertise can be based on either demonstrated competence or experience. Also, the medical expert must state that he or she finds the basis for the lawsuit reasonable. The affidavit must be filed along with the complaint in a medical malpractice claim, or the lawsuit may be dismissed. Other requirements may arise in medical malpractice claims, depending on the nature of the case and where it is filed.
Do You Have a Medical Malpractice Claim?
If you have been injured and believe that a medical provider may be at fault for your injuries, the Chicago attorneys at Moll Law Group can advise you on how to proceed. Medical malpractice claims carry special requirements in Illinois, and knowing what you need in order to prove your case is essential. We represent individuals and families in Naperville, Schaumburg, Wheaton, and communities throughout Cook County. Billions of dollars have been recovered in cases in which we were involved. Contact us through our online form or call us at 312-462-1700 to set up a free initial consultation.
See More Posts:
Automated Driving Presents New Risks for Drivers, Illinois Injury Lawyer Blog, August 16, 2016.
Woman Fails to Provide Required Notice in Medical Malpractice Claim, Resulting in Dismissal, Illinois Injury Lawyer Blog, July 23, 2016.
Court Hold Adults Who Serve Alcohol to Minors May Be Liable for Related Injuries, Illinois Injury Lawyer Blog, August 9, 2016.