One of the first questions often asked of our Chicago personal injury attorneys is: “Do I still have time to file my claim?”
It goes without saying that an individual can’t wait around indefinitely deciding whether or not to file a personal injury claim. More specifically, Illinois has a statute of limitations that establishes concretely the available period of time in which a person may file a medical malpractice lawsuit.
The relevant law essentially says that, in the normal course of events, an individual must bring the suit against his or her health care professional, hospital, or health care institution within two years of the period of time when he or she knew, or should have known, about the injury. Moreover, even with the leeway allowing time after the two years to discover the injury, the general rule is that, no matter what, the lawsuit may not be brought more than four years after the event that triggered the injury.
Tolling of a Medical Malpractice Statute of Limitations May Occur During Infancy, Mental Incompetency, or Imprisonment.
The basic premise of exceptions to the medical malpractice statute of limitations is to protect injured parties who have a valid claim, from not being able to file suit against the person or persons who caused their injury.
For minors, the law is similar. If the injured person is under the age of 18 at the time of the accident or occurrence, a period of eight years following the injury is allocated, in which a claimant may file suit. If the individual is 18, the four-year period for normal circumstances applies.
However there’s one more significant provision of the law: “If the person entitled to bring an action. . . is, at the time the cause of action accrued, under a legal disability other than being under the age of 18 years, then the period of limitations does not begin to run until the disability is removed.”
But what does that mean?
To date, the Illinois Supreme Court has not addressed the issue of “legal disability” as provided in the statute governing limitations on medical malpractice claims. However, a number of court cases in lower Illinois courts have given shape to the issue.
In order for imprisonment to stall the clock on for the imprisonment exception, the occurrence causing the injury must have accrued at the same time the person was imprisoned on a criminal charge. This means that if the injury happened while a person was in prison, or the injury happened to the child of a prisoner, the statute of limitations is suspended until the “disability is cured,” – or the prisoner is released.
Then again, the Illinois legislature wouldn’t have wanted to encourage crime for the purpose of allowing people to have a longer period of time to bring a lawsuit, so subsequent courts have found that the limitations period will not be deferred if the person entitled to bring suit was not incarcerated at the time of the alleged malpractice.
But what about the other conditions that allow tolling of the statute of limitations?
The definition of “disability” for purposes of the medical malpractice statute of limitations is: something that prevents understanding or capacity to make or communicate decisions regarding an individual’s person, estate, or financial affairs.
That means that the disability may be physical or mental, so long as it interferes with the person’s ability to make decisions about him- or herself and his or her affairs. But it’s also important to note that tolling of the statute is NOT conditioned upon a formal adjudication of disability.
In many areas of law, in order to be entitled to legal assistance provided for disabled persons, a person must be declared by the court to be either physically or mentally incompetent. However, no prior court declaration is required to allow an individual to claim the disability exception to the statute of limitations; it is enough if the injured individual alleges a sufficient amount of factual evidence to prove legal disability.
Though on the surface, it might seem like a loophole that tort-reform activists would hope to close, if the law weren’t read this way many legitimate claims would go unheard, and sincerely injured persons would be denied justice. If the person was disabled as per the meaning given to this provision, he or she would be incapable of taking the steps necessary to have him- or herself adjudicated as legally disabled. At that point, the injured party would be forced to depend on a guardian who may or may not have the ability or know-how to get the person declared legally disabled; it’s a situation that seems to run contrary to something that was intended to protect ill-treated parties from being denied their day in court.
Although there must exist boundaries with regard to the ability and availability for bringing a medical malpractice lawsuit, exceptions exist for every rule, and Illinois laws seem to aptly handle those circumstances.
If you or a loved one have been injured by a doctor, nurse, hospital, or other health care provider in a situation involving medical malpractice, it may be in your best interest to contact an attorney. A Chicago personal injury attorney will be able to help you determine whether or not you have a claim, and whether you still have time to file a lawsuit.