How to Prove Medical Malpractice

how to prove medical malpractice

According to the Medical Malpractice Center, there are between 15,000 and 19,000 medical malpractice lawsuits filed every year. Not only that, a study at John Hopkins University suggests that medical malpractice is the third leading cause of death among Americans, the first and second causes of death being heart disease and cancer. Because of this, Curcio & Casciato represents and defends injured parties in not just medical malpractice suits, but catastrophic injury, wrongful death lawsuits, car accident lawsuits and more. Call us today at 312-321-1111 for a free consultation. In this post, we explain how to prove medical malpractice.

What Is Medical Malpractice?

In short, medical malpractice is a medical error. It happens when a doctor doesn’t provide appropriate treatment or provides treatment that causes substantial harm, injury, or death to their patient.

What Is Standard of Care?

Standard of care is a treatment process that a doctor should follow for a certain type of patient, illness, or clinical circumstance. So in a medical malpractice lawsuit, the patient must establish the appropriate standard of care and show how it was violated by their doctor.

How to Determine Whether Medical Malpractice Has Occurred

To do this, the patient must first determine whether medical malpractice has occurred so they can demonstrate it. To prove medical malpractice happened, a patient must show:

  • That a doctor-patient relationship existed. If a doctor treated you, it’s easy to prove the relationship existed. Questions of a doctor-patient relationship existing usually arise when a doctor didn’t treat you directly.
  • That the doctor was negligent. If you are simply unhappy with your doctor, they cannot be charged with medical malpractice. The doctor must make a mistake in diagnosis or treatment in order to be charged. Additionally, almost all states require the patient to have a medical expert present to explain the appropriate standard of care, and also explain how the doctor didn’t follow that standard.
  • That the doctor’s negligence caused your injury. Because many malpractice suits involve patients already sick or injured, raising the question of whether the doctor caused the harm. The patient must show that the doctor’s negligence “more likely than not” caused harm.
  • That the injury led to specific damages. Because even if it’s clear that the doctor underperformed in relation to standard of care, the patient can’t sue for malpractice if they didn’t actually suffer any harm. The specific types of harm the patient can sue for are:
    • Physical pain
    • Disability
    • Disfigurement
    • Emotional distress
    • Unnecessary medical bills
    • Cost of future medical care
    • Lost work
    • Personal financial loss

Types of Medical Malpractice

There are many types of malpractice that could result in a valid lawsuit, including:

  • Unnecessary surgery
  • Misdiagnosis, failure to diagnose, or a delayed diagnosis
  • Misreading or overlooking lab results
  • Surgical error
  • Incorrect medication or dosage
  • Poor follow-up or aftercare
  • Premature discharge from a hospital
  • Failure to take appropriate patient history
  • Disregarding your medical history
  • Failure to order appropriate tests, or to act on test results
  • Failure to identify symptoms
  • A doctor failing to warn a patient of various health risks

Cancer Misdiagnosis

Another commonality among medical malpractice is cancer misdiagnosis. The American Cancer Society estimates 1.8 million cancer diagnoses per year, with approximately 180,000 and 504,000 cases of misdiagnosis or delayed diagnosis. Because of this, many patients receive unnecessary treatment or don’t survive their delayed diagnosis. But how is cancer misdiagnosed in the first place?

  • Failing to conduct a thorough or complete examination of the patient
  • A doctor failing to take a detailed medical history of their patient
  • Failing to follow up with the patient
  • Not recognizing early cancer signs and symptoms
  • Not offering specific cancer screenings
  • Failing to recommend specific tests due to financial concerns or limitations
  • Improper interpretation of lab results or radiological testing
  • Failure to consult with related medical specialists
  • Communication errors between doctor and patient

Common types of cancer misdiagnosis include breast cancer, colorectal cancer, pancreatic cancer, and lung cancer. In many cases, patients who receive a delayed diagnosis or misdiagnosis suffer wrongful death or substantial damage from the unnecessary treatments. Common injuries from misdiagnosis include:

What to do After a Cancer Misdiagnosis

Just like any form of medical malpractice, if you were misdiagnosed with cancer or if a loved one suffered a wrongful death due to delayed misdiagnosis, you may be entitled to significant compensation from the physician or treating hospital who acted negligently. Curcio & Casciato encourages you to contact a Chicago medical malpractice attorney as soon as possible so you can receive justice for your suffering.

What Damages Can I Recover in a Medical Malpractice Case?

A victim of medical malpractice can recover many damages, ranging anywhere from medical bills to pain and suffering. If a patient dies as a result of medical malpractice, their family will recover the damages. But to recover damages, the patient or family must prove the medical malpractice caused damage and that some kind of price tag can be put on those damages. There are three categories of damages available for recovery in medical malpractice cases.

General Damages

General damages are for the patient’s suffering which cannot be priced. The most common examples of patient suffering are loss of enjoyment of life, physical or mental pain, and loss of future income. There aren’t rules set in stone for how to decide a fixed price for suffering, so the patient provides evidence about the consequences of their injury.

However, general damages aren’t available for patients who had a pre-existing injury and the suffering that that pre-existing injury will cause.

Special Damages

Special damages cover exact expenses caused by the medical malpractice, such as medical bills and missed work. In some states, all you have to do to recover special damages is to submit a copy of the medical bills involved.

Punitive Damages

To recover punitive damages, the doctor must have known that they were causing harm to their patient. For example, a surgeon intentionally left a sponge inside the patient so a second surgery is required to remove it, racking up unnecessary medical bills for the patient.

The dollar value of punitive damages is up to the judge or jury, but usually it can’t add up to more than several times the amount of special or general damages.

Illinois Statute of Limitations for Medical Malpractice Cases

Medical malpractice statute of limitations is a set timeframe for when the patient can sue their doctor. After that set time, the patient or the patient’s family can’t sue for medical malpractice.

In Illinois specifically, patients have two years from the date of injury discovery to sue their doctor. The discovery date can either be when the patient discovers their injuries, or when they discover their injuries were the direct result of medical malpractice. It’s important that the date of discovery is as accurate and well-documented as possible through medical records. Additionally, the statute of limitations in Illinois prevents a patient from suing their doctor more than four years from the medical treatment date, regardless of the date of injury discovery.

Illinois Statute of Limitations Exceptions

There are exceptions to Illinois’ statute of limitations laws. For this reason, the patient must prove that they are eligible for the exceptions.


Victims of medical malpractice who are under 18 years old have up to eight years from the date the treatment caused their injuries to sue their doctors. But the child must file a claim before their 22nd birthday.


If the doctor or the healthcare facility intentionally hid their improper care through withheld information, patients can sue five years from the day the injury is discovered.


If the patient is unable to sue their doctor because of their disability, they have two years from the day their disability is resolved to file a claim.

Even if your statute of limitations is up, we encourage all patients to see a Curcio & Casciato trained medical malpractice lawyer. 

How to Prove Medical Malpractice With the Help of an Attorney

Once you file a claim and reach out to a medical malpractice attorney, they will help you prove your case by demonstrating a doctor-patient relationship existed, that the doctor was negligent, that the doctor’s negligence caused your injury, and that your injury led to specific damages as explained previously in this blog. For example, if your elderly loved one suffered a nursing home fall due to negligence from the nursing home staff, you need a nursing home abuse attorney Chicago at our firm.

Contact Curcio & Casciato Today

If you are injured and suffering from medical malpractice, we want to help you receive the justice that you deserve. Call 312-321-1111 for a free consultation, and we’ll make sure you have a trained medical malpractice lawyer on your side.

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