What are the Chances of Winning a Medical Malpractice Suit?

what are the chances of winning a medical malpractice suit

Curcio & Casciato is passionate about making sure our injured clients receive the justice they deserve, whether they have suffered from medical malpractice, catastrophic injuries, car accident lawsuits, and more. Call us today at 312-321-1111 for a free consultation. In this post, we answer the question: what are the chances of winning a medical malpractice suit?

It’s estimated that 250,000 thousand Americans die every year from medical malpractice, ranking as the third leading cause of death behind heart disease (611,105 deaths annually) and cancer (584,881 deaths annually).

Those medical malpractice deaths break down to:

  • 12,000 from unnecessary surgery
  • 7,000 from medication errors
  • 20,000 deaths from various hospital errors
  • 80,000 from infections
  • 106,000 from adverse medication effects

What Is a Medical Malpractice Lawsuit?

A medical malpractice lawsuit is when a doctor is sued for a medical error that causes substantial harm, injury, or even death to their patient.

What Are the Most Common Claims in a Medical Malpractice Lawsuit?

Any intentional or unintentional mistake by a doctor or a healthcare facility can result in a medical malpractice lawsuit. However, attorneys see these types of medical malpractice claims the most:

Misdiagnosis or Delayed Diagnosis

Approximately one-third of all medical malpractice claims between 2013-2017 were filed due to misdiagnosis or delayed diagnosis according to a Modern Healthcare article. However, incorrect or delayed diagnoses often result in a patient receiving unnecessary and harmful treatments or shortening their life span.

A misdiagnosis happens when a doctor doesn’t:

  • Recognize signs and symptoms
  • Order medical tests and scans
  • Refer their patients to a specialist

Other mistakes that can lead to a misdiagnosis or a delayed diagnosis are:

  • Mislabeled lab or test results
  • Lost test results
  • Mistakes when conducting test or scan
  • Mistakes when evaluating data

Failure to Treat Patients

When a doctor fails to treat patients, they are violating the standards of care they have accepted and agreed to. Examples of a doctor failing to treat their patient include:

  • Premature discharge from the hospital
  • Failing to provide follow-up care instructions
  • Failing to order appropriate tests
  • Not considering a patient’s medical history when prescribing medicine or treatment
  • Caring for more patients than they can handle

Prescription Drug Errors

Sometimes doctors make mistakes in drug prescriptions. As a result, their patients could experience anything from a mild allergic reaction to death. Different types of medication errors include:

  • Prescribing the wrong medicine for a health issue
  • Prescribing too much or too little of a drug
  • Not recognizing potentially dangerous drug interactions or allergic reactions
  • Not recognizing signs of addiction, abuse, or overdose which gravely impact a patient’s health

It’s important to note that prescription errors require a different legal approach compared to dangerous drug lawsuits in Illinois.

Surgical Errors

Doctors and surgeons are required to protect their patients from harm during emergency and elective surgeries as well as outpatient procedures. However, surgical and procedural mistakes still happen. Here are the most common ones in malpractice lawsuits:

  • Performing surgery on the wrong part of the body
  • Performing surgery on the wrong patient
  • Leaving medical tools, gauze, or devices inside a patient
  • Patients experiencing reactions or problems with anesthesia, whether it be an allergic reaction or waking up during surgery
  • Failing to follow proper protocol before, during, and after surgery
  • Doctors, nurses, and surgeons failing to communicate vital patient information with each other during surgery

Childbirth Injuries

Injuries before, during, or after childbirth can be the difference between life and death for the mother and baby. Birth injuries can be caused by:

  • Poor prenatal care
  • Improperly using forceps
  • Using excessive force while removing baby from the birth canal
  • The umbilical cord being wrapped around the baby’s mouth, nose, or neck
  • A doctor’s failure to recognize fetal distress
  • Failure to perform a C-section when necessary
  • Dropping or mishandling a newborn

Erb’s Palsy in Infants

One common infant condition from a traumatic delivery is called Erb’s Palsy. An infant with Erb’s Palsy typically has arm weakness and loss of motion due to damage of the brachial plexus nerves near the neck. This type of nerve damage happens when an infant’s neck is stretched and then its shoulder is forcefully pushed down during delivery. Risk factors that may contribute to Erb’s Palsy in infants include:

  • Breech birth, which is when babies are born feet-first. Babies born like this could develop Erb’s Palsy because their arms may be raised in the birth canal, raising chances of injury from pressure and pulling.
  • Gestational diabetes could increase an infant’s birth weight, making delivery more difficult.
  • Improper delivery or use of birthing tools, which could cause a baby to be pulled quickly and forcibly from the birth canal.
  • “Pushing” stage of labor lasting over an hour, which may put an infant at a greater risk of Erb’s Palsy.

How Common is Medical Malpractice in Illinois?

Since 1990, the state of Illinois has had 48,133 reports of medical malpractice totaling $10,118.40 million according to data from NPDB. This breaks down to approximately 400 medical malpractice payments annually, totaling millions of dollars, according to the same source. But what are the chances of winning a medical malpractice suit?

Medical Malpractice Case Outcome Statistics

A study of medical malpractice case outcomes from the last 20 years doesn’t show much promise for patients. Doctors have won 80-90% of jury trials with weak evidence, 70% of cases with borderline evidence, and 50% of trials with strong evidence. Additionally, 80-90% of the claims rated as defensible are dropped or dismissed without payment, suggesting that patients with strong evidence of medical malpractice usually come out on the losing end.

Why Do Patients Often Lose Medical Malpractice Cases?

Juries tend to take the doctor’s side in medical malpractice cases for multiple reasons.

  • Juries could be skeptical of patients who file lawsuits against their doctors
  • The jury may sympathize with doctors
  • There is a long history of fraudulent cases against doctors which doesn’t help patients who actually fall victim to negligence
  • Doctors are more likely to hire more experienced lawyers than their patients
  • Juries tend to take the patient’s burden of proof (the obligation to prove one’s claim) seriously
  • Juries tend to give doctors the benefit of the doubt when both sides provide evidence and witnesses

Common Problems in a Medical Malpractice Case

To win a medical malpractice trial as a patient requires them to successfully convince the jury that their doctor breached the proper standard of care, and this is definitely a challenge. The most common challenges for patients during malpractice trials are:

  • Confusing medical evidence
  • Pressure from insurance companies
  • Medical witness or affidavit requirements
  • Complex litigation processes
  • Going up against experienced attorneys

How to Increase Your Chances of Winning a Medical Malpractice Case

There is hope in improving your chances of winning a medical malpractice case. You can do this by sending a demand letter to your doctor, which is one of the first steps toward receiving a settlement. A demand letter describes your claim and demands compensation for your injuries. This is a step many patients unintentionally skip which often results in them not recovering any damages.

What Is the Statute of Limitations for a Medical Malpractice Case in Illinois?

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, and 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 disabled to the point of being incapable of suing their doctor, 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 Can a Chicago Medical Malpractice Attorney Help?

A Chicago medical malpractice lawyer can investigate the details of your case, identify liable parties, and help you recover damages for your suffering. Not only will you be awarded damages if you win, but you could prevent another patient from suffering the same consequences from a negligent doctor, nurse, or medical facility.

Contact Curcio & Casciato Today

For the best chances of winning a malpractice lawsuit, it’s important that a patient has an experienced lawyer on their side and also aim for a settlement. At Curcio & Casciato, our experienced Chicago medical malpractice lawyers have helped our injured clients win millions of dollars in settlement and jury verdicts. Call us at 312-321-1111 for a free consultation. Along with our success in medical malpractice, our Chicago nursing home attorneys have significant experience in litigation and settlements. We handle nursing home bed sores, nursing home falls, and much more.

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