By Attorney Cassandra Voissem
To pursue a case for medical malpractice in Illinois, it is not as simple as hiring an attorney and filing a case. There are additional requirements which involve a longer presuit investigation process necessitated by statute. 735 ILCS 5/2-622.
First Step: Collecting Your Medical Records
To know if you have a case, your attorney will want to see your medical records. A client can obtain their own records pursuant to the HITECH Act. Since its inception the HITECH Act has provided patients access to their own medical records for the low low cost of $6.50 max (per entity).
In 2016, additional guidance came from the US Department of Health and Human Services stating that the “patient rate” established by the HITECH Act also applied to third parties acting with patient authority. This included law firms and attorneys working cases in for personal injury or medical malpractice litigation. This made life easier for attorneys because they were able to obtain the records without the client having to be burdened beyond approval.
Unfortunately, in January 2020 the third-party extension of the “patient rate” was eliminated by the case Ciox v. Azar. The patient rate still applies but the onus will be on the patient to get their own records for the attorney representing them lest they (or their counsel) be charged hundreds to thousands of dollars. So, clients are left to get their own records. Medical records should generally be obtained from all treaters or medical entities immediately prior, obviously during the problematic era, and immediately after.
Coming off the throes of a medical issue, it might be hard to recount every doctor you saw or every physical therapist you visited so one set of medical records might lead to the recognition for the need of records from another entity.
This process can take some time between the client requesting the records, to the production of the records by each entity and the review to make sure the record is comprehensive. Most larger medical conglomerations have the ability for the patients to access their records online through a patient portal or via a HITECH request form available on their websites. However, even with the ease of technology, it's important to be as prompt as possible with obtaining records so that you are able to bring your case before the statute of limitations runs out and you are barred from even trying.
Step Two: Having Records Reviewed by a Comparable Medical Professional
It's not just your attorney who will need your records, but also the reviewing health care professional. Illinois requires that with a medical malpractice case, the attorney filing attaches what is commonly known as a 2-622 Affidavit. This affidavit includes a report from a third-party reviewing health care professional stating that they have reviewed the records and can see that there is a reasonable and meritorious cause of action.
This is a required attachment to the complaint (the first filing in a lawsuit). If it is not attached your case can be dismissed.
The health care professionals will need sufficient time to review the record. If they agree that there is a meritorious case, then a health care professional report is prepared to attach to the complaint. If they state that they don't see a case there, then you can seek out another review but you'll probably get the same result.
Working backwards, the presuit investigation process can take at least a few months and litigation hasn't even started yet. It's important to call an attorney as early as you can when you think you've been wronged to get this process going and of course for help through the complexities of the legal system.
The attorneys at CTM Legal Group can help you with this, call 312-818-6700 today for a consultation.