Why defense lawyers want to characterize the injury as "malpractice".

Over the last few years I have been retained several times to represent people who have been injured while they were residing in nursing homes. The Illinois Nursing Home Act includes a bill of rights which guarantees residents the right to be free from abuse and neglect by staff. The Act further provides that a failure to provide “adequate medical care” that results in physical or mental deterioration is neglect. That wording is important – because “adequate medical care” has been found by Illinois Courts to be synonymous with “reasonable care”, a term used to describe the standard of care for ordinary negligence. As a result, the standard of care for liability under the Nursing Home Act is ordinary negligence – which does NOT require an expert. In other words, the lawyer for the injured resident does not have to retain a doctor to explain how the nursing home screwed up. The jury is allowed to make that determination.

Lawyers for nursing homes however aren’t dummies. They aren’t comfortable leaving their clients’ fates in the hands or ordinary jurors. So they try to characterize the allegations against the nursing home as “healing art malpractice”. Under Illinois law, if “malpractice” is alleged, an injured person has to get a doctor’s certificate that malpractice took place before he or she can even file suit. And, importantly, in order to prevail in a malpractice case, the injured party normally has to have an expert establish what the standard of care was, and how it was violated. And experts cost money. Lots of money. And finally, statistically speaking, juries more often than not find for the medical provider in malpractice cases.

So the defense lawyers bring Motions to Dismiss, knowing that if they can successfully characterize a case as “malpractice” it becomes more difficult to prove and more expensive to prosecute. Hopefully the presiding judge understands that just because an injury took place in a nursing home doesn’t make it “malpractice”.