In this article, we'll discuss a few laws that will likely affect a medical malpractice case in the state of Illinois, including the “statute of limitations” for starting a medical malpractice case and the current state of laws affecting award limits in medical malpractice cases in Illinois. Read on to learn more.
Quick Note on Medical Malpractice Statutes of Limitations and Award Limits
The “statute of limitations” is the legal term for the deadline the person suing (the plaintiff) has to file a medical malpractice lawsuit against a health care provider. Medical malpractice cases have some of the shortest and most severe statute of limitation rules of any kind of lawsuit.
To make matters more complicated, there are often special requirements a plaintiff has to fulfill before he or she can sue for medical malpractice. Failure to take the proper steps could postpone when the suit can be filed and cause the plaintiff to miss the statute of limitations deadline. Finally, it can often be difficult to determine when the clock started running and what the deadline actually is.
Medical malpractice damage awards -- how much money an injured plaintiff can receive in a lawsuit, in other words -- are also limited or “capped” in some states. Both the strict statute of limitations and medical malpractice damage caps are the result of states’ efforts to lower the cost of medical malpractice liability insurance.
The rules affecting all of these issues in Illinois are discussed below.
Basic Medical Malpractice Statute of Limitations in Illinois is Two Years from Discovery of Injury or Four Years from Negligent Act
In Illinois, you must start the lawsuit within two years of when you became aware of, or should have become aware of, the medical malpractice. Regardless of when you discover the injury, there is a limit of four years from when the malpractice occurred. In other words, if you discover the malpractice injury more than four years after the medical act that caused it, your lawsuit will be thrown out.
What's more, if you sue more than two years after you discover an injury that might have been caused by medical malpractice, or more than two years after you should have figured out the injury might have been caused by medical malpractice, your lawsuit will be thrown out.
There are some very limited exceptions to these rules, such as for foreign objects left in the patient or fraudulent concealment of the malpractice.
If the injured person was younger than eighteen when the medical malpractice occurred, the statute of limitations is eight years or when the injured person turns twenty-two, whichever comes first.
The basic laws for Illinois Medical Malpractice Statute of Limitations can be found at 735 ILCS 5/13-212.
Effect of Pre-Suit Requirements on the Statute of Limitations
In Illinois, a plaintiff is required to file a certificate of merit along with the initial complaint (the legal filing that starts the lawsuit). If the certificate of merit requirements are not met, the statute of limitations continues to run until the requirements are met. However, a plaintiff can also file a complaint with an affidavit saying that there was not enough time to fulfill the other requirements because the statute of limitations was close to expiring.
No Damage Caps in Illinois After 2010 Case
Illinois used to have limits on how much a medical malpractice plaintiff could recover in the way of non-economic (pain and suffering) damages after a successful lawsuit. However, in 2010 the Illinois Supreme Court ruled that the law that set damage caps in these cases was unconstitutional. So, there are currently no limits on the type or amount of medical malpractice damages in the state of Illinois, but that could change, so stay up to date on state law.