Not in Illinois. Despite the constant drum beat from politicians and special interest groups to the contrary, it is virtually impossible to file a frivolous medical malpractice claims in Illinois. Here are the facts.
The state of Illinois requires (735 ILCS 5/2-622) that where a person seeks damages for injuries or death by reason of medical, hospital, or other healing art malpractice, an affidavit shall be filed to the complaint declaring that the person filing has consulted with a health professional who: (i) is knowledgeable in the relevant issues involved in the particular action; (ii) practices or has practiced within the last 5 years or teaches or has taught within the last 5 years in the same area of health care or medicine that is at issue in the particular action; and (iii) meets the expert witness standards adopted by the legislature for expert medical witnesses. The affidavit must further state that the reviewing health professional has determined in a written report, after review of the medical record and other relevant material involved in the particular action that there is a reasonable and meritorious cause for the filing of such action. The affidavit must further state that on the basis of the reviewing health care professional’s review and consultation there is a reasonable and meritorious cause for filing the action. A report must be filed as to each person accused of malpractice. As to any individual defendant the written report indicating there was malpractice must be from a health professional who is licensed in the same profession and with the same class of license as the person who is being accused of malpractice. The written report must also identify the profession of the reviewing health professional. Finally, and perhaps most importantly, a copy of the written report from the expert who possess all the required qualifications which report clearly identifies the accuser and the reasons why the reviewing health professional’s determination that a reasonable and meritorious cause for the filing of the action exists, including the reviewing health care professional’s name, address, current professional license number, and State of licensure, must be attached to the accuser’s affidavit. Although there is a provision in this statute that if the accuser has been unable to obtain a consultation with a health care expert because of the statute of limitations, a case can initially be filed without the required affidavit and report, the required affidavit and report must be filed within 90 days thereafter, and the health care professional accused of malpractice has no duty to respond to or acknowledge any complaint until 30 days after having received the required affidavit and report. If the affidavit and report are not filed, the case is dismissed with prejudice without the accused having to respond to the complaint at all.
The above requirements, which must be met in order to pursue a medical malpractice case, are applicable only to medical malpractice cases. No other type of case, whether against an architect, accountant, lawyer, religious leader, car company, oil company, hedge fund executive, or any other entity or person requires that a plaintiff empirically establish the merits of his case to the court before establishing the merits of his case in court. In view of all the above extraordinary requirements for medical malpractice cases, although it is clear that a medical negligence case might still be lost, it is very difficult to comprehend how a frivolous medical malpractice case could actually proceed.
Attorneys who handle medical malpractice lawsuits have absolutely no financial, professional or emotional reason to pursue a frivolous case. In fact, the incentives are just the opposite. These cases are handled on a contingent fee basis and, because of the reduced contingent fees available in these cases which are set by a separate statute, the expensive hurdles (see first paragraph above) which are encountered only in medical malpractice cases, as well as statutory financial relief available only to physicians, the time and cost of pursuing such claims are substantial and the potential recovery reduced. There is absolutely no reason for an attorney to bear the expense of a merit less claim. One of the ironies related to this issue is that it is attorneys, not doctors, who spend time and money weeding out frivolous cases. For every claim pursued there are at least twenty that are not. This does not necessarily mean the other twenty cases are without merit. Many of them are not pursed simply because the potential damages do not justify the projected cost of pursuing the claim.
