How To Sue a Hospital for Wrongful Death

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Wrongful death form and stethoscope on a table

If you have lost a loved one due to the negligence or misconduct of a hospital or hospital employee, you may wish to sue a hospital for wrongful death. Vicarious liability is a legal theory that means that the employer is liable for an employee who acted negligently within the scope of the person’s employment. 

Suing a hospital can be a complex process that may involve obtaining medical records, reports, and affidavits. To have a successful wrongful death claim, you will need to prove that your loved one’s death was caused by the other party’s negligence or intent to harm. You may wish to seek the assistance of a wrongful death attorney that has experience with this process.

How To Sue a Hospital for Wrongful Death

The process of filing a wrongful death claim in Illinois begins in probate court. Illinois law requires that wrongful death claims be filed by a personal representative. In order to become a personal representative, you must first open an estate in Illinois probate court on behalf of the deceased party. 

Once you have opened the estate, you must be appointed as a personal representative. You can be appointed as a personal representative in two ways. Either by the decedent naming you as the executor in his or her will or by filing a petition for letters of administration and having a court name you as the personal representative.

Before you can file a wrongful death suit against a hospital in Illinois, you will also need to obtain a physician’s affidavit and report demonstrating that you have a meritorious claim. Illinois statute requires that the physician’s affidavit states that a medical professional has reviewed the medical records and has concluded that there is a reasonable and meritorious cause for filing the action. This conclusion must be made in a written report by the medical professional.

In addition, the health professional that creates the report must: be knowledgeable of the issues involved in the case; practice, have practiced, or have taught in the field of medicine within the past six years; and be qualified by experience or demonstrated competence in the field of medicine related to the case.

A wrongful death lawsuit against a hospital may involve reviewing thousands of pages of medical records, consulting with expert witnesses, depositions, and arguing in court. A Chicago wrongful death attorney can help you through the complex and often lengthy process.

What to Do if the Hospital Is a Public Entity

In some cases, the hospital you are trying to sue in a wrongful death claim is run by the state or county. If the hospital is a government-run entity, there may be some limitations on your ability to pursue a wrongful death claim. Government-run entities are funded by taxpayers and are often given protections known as tort immunity. When seeking a wrongful death claim against a public hospital, you are suing the county or state itself as opposed to the hospital.

When Is a Hospital Liable for Wrongful Death?

A hospital is liable for wrongful death if the hospital, or an employee of the hospital, negligence caused the death. You may have heard of cases where surgical tools get left inside patients or of doctors performing unnecessary procedures at Chicago hospitals where liability seems obvious. 

One common reason a hospital may be liable is if they engaged in negligent hiring practices when hiring doctors or nurses. Hospitals may also be held liable if they were negligent in other ways that led to a patient’s death. Some other examples of hospital negligence include using unsanitary surgical tools, keeping broken or insufficient medical devices, understaffing medical departments, causing birth injuries, and failing to diagnose problems in a timely manner.

In many cases, liability can be difficult to prove. To prove liability in your wrongful death claim, you must establish four things. The first is that the hospital owed a professional duty of care to the patient. Second, the hospital breached this professional duty of care. Third, this breach caused the patient’s death. Finally, you must prove that the death caused damages.

Possible Defenses to a Wrongful Death Claim

There are several defenses that the hospital or medical professional might allege to try to show they are not liable. One common defense is that the statute of limitations has expired. The statute of limitations for most wrongful death claims in Illinois is two years from the date of a person’s death. Under certain circumstances, the statute of limitations may be longer. If, for example, the person died as a result of violent intentional conduct, the lawsuit may be filed up to five years after the date of death. A wrongful death attorney can help you determine the statute of limitations that applies to your case.

Another possible defense to a wrongful death claim is self-defense. This is typically only defense in situations where the parties engaged in some type of altercation that resulted in a fatality. Waivers, releases, and assumptions of risk can also sometimes be used as a defense in a wrongful death claim. This defense is used when the deceased person signed a release of liability stating that they knew the activity could result in death.  

How Much Can You Recover in A Wrongful Death Suit

The amount you might recover in a wrongful death claim will vary greatly depending on the particular facts of your case and whether there is a settlement or you go to trial. The amount of compensation recovered will also depend on the specific injuries involved, In Illinois, you may be able to recover compensation for the following type of injuries:

  • Pain and suffering
  • Lost past and future wages, including loss of financial support the deceased would have provided
  • Loss of consortium
  • Loss of companionship
  • Medical expenses
  • Funeral expenses

You may be able to recover a greater amount in compensation by taking your case to trial. The trial, however, can be lengthier and more emotionally exhausting than reaching a settlement. A wrongful death lawyer can help direct you to which option will be more beneficial in your situation.

Elements of Medical Malpractice Claim

While negligence is a common basis for a wrongful death claim, your wrongful death claim may also be based on medical malpractice. Medical malpractice is the improper or negligent treatment of a patient by a healthcare professional. A healthcare professional might include doctors, nurses, specialists, dentists, or pharmacists. To find a healthcare professional liable for medical malpractice, you must prove four elements. These elements are similar to those required for a wrongful death claim. These elements include duty of care, breach of this duty of care, injury caused by the breach, and resulting damages

Duty of care refers to the duty professionals have to uphold a certain level of care, depending on their specific field. Healthcare professionals are required to meet a certain standard of care when treating their patients. Medical professionals are expected to provide the skill and care that an average medical professional would use under similar circumstances. This element is fairly easy to establish because of the duty of care that is inherent in the relationship between a doctor or other healthcare professional and their patient.

To prove medical malpractice, you must also show that there was a breach of this duty of care. Because medical procedures always carry some risk, it can be difficult to prove that it was negligence that caused a negative outcome. To prove that there was a breach of the duty of care, you will want to gather evidence that proves the doctor or medical professional failed to exercise the expected standard of care, depending on their field.  

Once you have shown that there was a duty of care and a breach of the duty of care, you must also show that this breach resulted in injury. The resulting injury must be one that would not have occurred except for the negligence of the healthcare provider.

Finally, you must show that the injury led to resulting damages. Damages may be in the form of medical expenses, pain and suffering, disfigurement, or loss of wages.

How Can a Medical Malpractice Lawyer Help You

Chicago medical malpractice lawyers can help you hold medical professionals and facilities responsible for their negligent actions. A medical malpractice lawyer will listen to your story and explain what legal options are available and how much damages you should seek from the at-fault party. Your lawyer can also help you with the process of navigating complex legal documents, getting a settlement, and, if necessary, taking your case to trial if you sue a hospital for wrongful death.

About the Author

Kurt D. Lloyd is a plaintiff’s trial lawyer who focuses on medical malpractice and other catastrophic injury cases. He lives in Chicago and represents injured clients throughout Illinois. He is also the founder of Lloyd Law Group, Ltd.

Chicago accident lawyer Kurt D. Lloyd