In order for a matter to be brought before a court of law the action must be brought within the applicable statute of limitations (SOL). Generally, the SOL is set by the respective jurisdiction’s statutory code, though occasionally courts may look to precedent if statutory authority fails to give sufficient guidance. Because medical malpractice in the United States overwhelmingly falls under state law, state statutory codes are the starting point for determining if an action for medical malpractice can properly be commenced.
In Illinois, the basic general statute of limitations for a medical malpractice claim is two (2) years. This means that after a plaintiff has discovered or reasonably should have discovered the existence of an injury caused by a medical professional that person must file a formal complaint within two years or else the court will likely refuse to hear the matter and dismiss with prejudice. Dismissal with prejudice is the more severe form of dismissal a court can dispense and usually results in the barring of that lawsuit from being refilled, unless exceptional circumstances exist or new information is discovered. An absolute bar under the Illinois constitution at the four year mark; this means any lawsuits are prohibited regardless of exceptional circumstances.
Cases in which minors are potential med mal plaintiffs present guardians and attorneys with unique demands. Most broadly, minors are not legally autonomous beings and thus cannot enter into contracts (with some exceptions) marry, or bring lawsuits on their own behalf. If a minor holds a potential medical malpractice claim in Illinois the guardian must be aware that an eight year SOL applies. However, Illinois law bars any claim arising from the years the plaintiff was a minor from being commenced after the age of twenty-one. The only possible exception to this rule is where the minor was mentally disabled at the time of injury: as with all possible med-mal plaintiffs, the SOL in Illinois does not begin to run until after the mental disability abates.
The continuing duty to warn (CDW) (hyperlink) rule provides a potential reprieve to plaintiffs whose potential claims have passed the applicable SOL. In short, the CDW rule requires physicians and other statutorily defined individuals with a duty to report any potentially malfeasant acts to the individual to which these acts were performed. Jurisdictions vary in their treatment of the CDW rule. Favorable jurisdictions view the rule as a fair and equitable requirement that the medical establishment own up to its malfeasance and properly inform patients.
In 1997 the Illinois Court of Appeals in the landmark case, Proctor v. Davis, set a nuanced precedent regarding the role of CDW in Illinois med-mal jurisprudence. The case concerned a lawsuit against an ophthalmologist and the manufacturer of a drug used by the doctor. The doctor’s use of the company’s drug resulted in the removal of plaintiff’s left eye. The doc tor was held not liable and thus had not duty to warn of the danger posed by the drug; however, and importantly, the drug manufacturer was held liable for extensive punitive and compensatory damages for its failure to warn of the potential damages resulting from its product.