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Illinois medical malpractice lawyers take on the challenge of proving pain and suffering
By Emily Gleason
Illinois medical malpractice lawyers face long trials steeped in endless expert testimony, caveats in civil procedure and usually hundreds of thousands of dollars at risk, all the result of emotionally heart wrenching cases involving deaths, amputations, paralysis, brain damage, and almost always, pain and suffering. Among the critical roles that attorneys play in medical malpractice cases, the role of proving pain and suffering is one of the most challenging.
Paralyzed in silence on an operating table, a 53-year-old patient was unable to react when he experienced anesthesia awareness during open heart surgery. He suffered the pain of a bone saw cutting through his sternum and jolts of excruciation as doctors shocked his heart. He listened in agony to conversations among the surgical team that was completely oblivious of his anesthesia awareness. The patient was unable to move, scream or give any kind of indication that he was in pain. After surgery, the patient was diagnosed with post-traumatic stress syndrome. The patient hired a lawyer to raise pain and suffering as a cause of action in a medical malpractice case. Although there was no other cause of action involved in the case, the patient was awarded $262,500.
Most Illinois lawyers know that as of 2001, pain and suffering is no longer just an element of damages, but a cause of action in medical malpractice. It is every medical professional's duty to treat and effectively control pain. Inferring that pain is all in a patient's head is no longer a valid defense.
Pain and suffering cannot be seen or heard and usually, there is no physical evidence to prove its existence. Illinois lawyers are called upon to prove the invisible, working against hundreds of years of social and cultural ideologies, to show the 12 member juries what is silently tormenting their clients.
To make matters more complicated for medical malpractice lawyers, medical professionals usually disregard pain and suffering. In order to treat severely injured patients effectively, many of the best doctors do not allow themselves to empathize. As a result, pain and suffering is a symptom that is easily ignored.
In addition to medical professionals, juries can also be unwilling to empathize with patients who raise pain and suffering as a cause of action for medical malpractice. Illinois medical malpractice lawyers have to work against strong political beliefs and viewpoints of jurors. Republican-minded jurors tend to be less sympathetic with a patient's pain and suffering and more cognizant of the need for tort reform. There is a strong ideology that patients should be able to deal with pain and not open the floodgates of new litigation into the judicial system. Unlike other causes of action, such as severe burns, quadriplegia, and mutilation, pain and suffering is invisible and impossible to objectively quantify, so it is all too often disregarded.
When jurors have blind faith in both the medical community and politicians, it can be difficult for Illinois medical malpractice lawyers to garner sympathy for patients who have no scars or physical proof of pain and suffering. Thus, plaintiffs who endure undue pain and suffering that breaches the standards of care, have a cause of action for medical malpractice, but still face the challenge of presenting a case that can break through the social and political ideologies of jurors.
The July 2006 edition of The Economist reported that understanding pain and suffering is one of leading neurological issues of our time. The old saying "it's all in his/her head" is not too far off base, as pain and suffering truly is regulated by nerves in the brain. Unfortunately, the human brain is one of the least understood areas of medical science, and many patients continue to endure it. As long as pain is silently endured, Illinois medical malpractice lawyers face the challenge of proving that it exists.
About the Author
Emily Gleason is a law student at John Marshall in Chicago. For more information about Illinois medical malpractice laws, please visit http://www.findgreatlawyers.com/HotTopics/MedicalMalpractice.htm, a leading resource for referrals to Illinois medical malpractice lawyers and Illinois medical malpractice information.
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