When making the decision of whether or not to bring a medical malpractice lawsuit, it is vital that parties understand their state’s statute of limitations for doing so. A statute of limitations is a specific duration of time imposed by state law in which a party may file a lawsuit. Such statutes vary from states to state as malpractice claims are governed by state law and precedent. Many statutes of limitations in these cases provide a relatively significant amount of time to file suit, but potential litigants must be cognizant of these rules. It may take time to truly come to terms with an injury or death that occurs as a result of medical malpractice, and injured parties or their families may not be ready to move forward so quickly. The time to sue will pass faster than people realize, so it is important to be aware.
Med Mal Time Limits in Illinois
In Illinois, the general statute of limitations to bring a medical malpractice lawsuit is two (2) years. However, as with all such statutes, there are specific rules as to when this clock begins to run. Generally speaking, and as is in the case in Illinois, the two year period begins to run from the date that the victim knows or should reasonably have known that they were in fact injured as a result of a medical provider’s negligent acts or omissions. This is known as “The Discovery Rule,” aptly named because the basis for measuring the statute of limitations starting point relates to the discovery of the malady or injury. The rule was most recently clarified in an Illinois appellate decision.
Anyone believing they were injured by a medical provider’s negligence must be aware of the date that this occurred, and must be prepared to litigate the issue of when that person should have known. This can often complicate the case, because a plaintiff may sue for an injury years after it occurred but only because they discovered it at that time. Attorneys defending the medical provider will undoubtedly argue that the plaintiff should have been aware of the injury much earlier, thus jeopardizing the plaintiff’s lawsuit by arguing it is untimely. It is also important to keep in mind possibilities of tolling, or pausing, the statute of limitations in the event that a second injury exists but could not have been discovered until later, or that there is a second source of an injury that may not have been discoverable by the victim until much later.
In Illinois, like other states, there are exceptions and wrinkles to statutes of limitations. For example, while an individual has two years to file from the time they discover or should have discovered the injury, they can nevertheless file more than four (4) years from the time of the negligent act or omission by the medical provider. This is known as a “Statute of Repose” and it effectively a cap that all litigants must be aware of. Discovering an injury five years after the malpractice that may have caused it unfortunately means it is too late.
Furthermore, for babies injured as a result of doctor or hospital negligence during birth, there is an eight (8) year statute of limitations for the child’s parents to sue for malpractice. In malpractice cases involving minors, a lawsuit may be filed at any time up until two (2) years after the victim’s 18th birthday, but this is capped at eight (8) years from the date of the actual act or omission leading to the injury. The statute of limitations is also generally extended in other cases involving minors.
There are other such examples as well, and it is important for potential litigants to know their deadline for filing a claim to meet the statute of limitations. Contacting an attorney even just to be sure of this deadline may be a worthwhile consultation.