MEDICAL MALPRACTICE AND PERSONAL INJURY LAW BLOG

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What Is the Statute of Limitations for Medical Malpractice in Chicago?

In most cases, victims of medical malpractice in Illinois have to file their claim within 2 years from the date of the injury. There may be different time limits for younger patients or where the cause of the accident is not discovered until later. However, it is better for you to reach out to an experienced Chicago medical malpractice attorney sooner rather than later. 

The time limit for filing a lawsuit is known as the statute of limitations. The statute of limitations laws in Illinois can be very strict. If you file your claim even one day too late, you could lose out on your chance to recover compensation. If you have questions about medical malpractice claims in Chicago, contact an experienced medical malpractice law firm

What Is the Statute of Limitations?

The statute of limitations is a legal term for the time limit to file a lawsuit. Depending on the type of case, there are generally statutes of limitations for everything from personal injury lawsuits to criminal proceedings. In most cases, if you file a claim after the statute of limitations has passed, your case can be dismissed. 

There are different reasons why there are time limits for filing a lawsuit. Legal time limits may be based on problems with lawsuits over the passage of time. For example, after a number of years:

  • Evidence can be lost
  • Memories can fade
  • People may die or move away
  • Defendants can be subject to unfair prosecution

However, there are also reasons why the time limit should not be too short. Some injury accidents may have long-lasting or permanent damage. A severe injury could take years for an injury victim to recover to their maximum medical improvement (MMI). It would be unfair to the injury victim to require them to say how much their injury costs while they were still trying to understand the full extent of the damage.

Time limits for legal cases go back to Ancient Greece and have been codified in many states under legal statutes. Each state has different rules for legal time limits and certain exceptions and special cases. Exceptions include late-discovered losses, losses to minors, and notice requirements for government defendants. 

Statute of Limitations for Medical Malpractice

In most states, there are different laws for the statute of limitations for medical malpractice and for personal injury claims. Medical malpractice is its own specialized area of the law and there are a lot of competing interests that have influenced the legal time limits for filing a lawsuit over the years. 

Under  735 Illinois Compiled Statutes 5/13-212(a), the statute of limitations for a medical malpractice case in Illinois is, “2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death.”

Medical malpractice claims generally involve a patient filing a lawsuit against a doctor, hospital, or insurance company for medical negligence. For injury victims, they may want more time to file a lawsuit because they may have suffered serious injuries and need time to recover before they can take their case to court. 

However, the medical industry wants to protect its financial interests. The healthcare industry has a strong interest in making it as difficult as possible to file a malpractice claim. Medical malpractice insurance companies and medical providers have spent a lot of money to lobby politicians to put restrictions in place to limit malpractice cases, including: 

  • Shortening the statute of limitations for medical malpractice claims
  • Limiting the amount of damages a patient can recover in a lawsuit
  • Heightened pleading standards to require expert testimony before a case can be filed

The statute of limitations for medical malpractice varies by state. Most states have a time limit somewhere between 1 to 4 years after the injury victim suffers an injury. For example, if a patient going in for surgery suffers a surgical error injury, their time limit would generally begin to run from the time they were injured. If there was a 2-year statute of limitations for medical malpractice claims in their state, they would have to file the lawsuit within 2 years of the date of their surgical injury.  

Statute of Limitations for Birth Injuries

Birth injuries are a unique type of medical malpractice lawsuit because there may be so many unanswered questions after the injury. Common types of birth injuries include brain damage from lack of oxygen, lack of blood flow, or physical damage to the brain. Unfortunately, the extent of a brain injury for a newborn can be difficult to evaluate. 

Children’s brains are still developing. A brain injury can cause developmental delays that are not fully understood until the child gets much older. The Centers for Disease Control and Prevention (CDC) provides developmental milestones in physical, mental, social, and learning categories for children at 2, 4, 6, and 9 months old, and for them at 1 year, 1.5 years, and every year following up to the age of 5.

If a child suffers a brain injury during a delivery accident, it may take 5 years or more before the family understands how much damage was done. This would make a short statute of limitations for birth injuries unfair because it can be so difficult to assess physical and mental disabilities when the child is still an infant. As a result, most states have rules where the statute of limitations for a minor does not begin to run until the child reaches a certain age.

Statute of Limitations for Children Injured by Medical Errors

A standard statute of limitations may also be unfair to children who suffer an injury. If a child is a victim of a medical malpractice injury while they are still growing, it may take years before the parents understand how severe the injury was. A physical injury could impair their growth or require corrective surgery for the child to live a normal life. A mental injury may not be understood for years. 

Minors who are injured by a medical error generally have more time to file a medical malpractice lawsuit. The time limit is “tolled” or paused until the child reaches a certain age. Some states start the clock running at age 18, giving the child time to file a lawsuit after they reach adulthood. Other states are much more harsh to young injury victims and start the statute of limitations running at age 8 or younger. 

Under  735 Illinois Compiled Statutes 5/13-212(b), for an injury victim who is under the age of 18, the minor has up to 8 years to file a claim. However, in any event, the child must file the medical malpractice claim before reaching the age of 22

Statute of Limitations for Left-Behind Surgical Objects

Another type of exception for medical malpractice time limits is based on the “discovery rule.” The discovery rule generally says that the time limit should not begin to run until the injury victim knows or should have reasonably known about the injury. An example of this is in retained foreign object injuries. Believe it or not, this is not an uncommon type of case. 

Doctors, nurses, and surgeons may fail to properly complete post-surgical checklists and leave a surgical device behind inside a patient’s body after surgery. Left-behind objects can include surgical sponges, gauze, needles, scissors, scalpels, and towels. The patient may have no idea that the error occurred and may think the surgery was successful. However, over a period of weeks or months, the patient may continue to suffer pain, infection, and life-threatening septic shock. 

If a medical error is not discovered until months or years after the surgery occurred, it may not be fair to start the clock running from the date of the medical procedure. The discovery rule may be able to delay the statute of limitations until the time when the victim reasonably should have known about the injury. However, some states that have a discovery rule exception also put into place a firm maximum time limit, even if the error was not discovered until after that time passes. 

Under 735 Illinois Compiled Statutes 5/13-212(a), a medical malpractice lawsuit has to be brought within 2 years after the date the injury victim reasonably should have discovered the injury but in no event shall an action be brought more than 4 years after the date on which the injury occurred. 

Is There a Time Limit for Wrongful Death Lawsuits in Illinois?

Wrongful death lawsuits are a type of claim where the estate or beneficiaries of the deceased can recover compensation after their loved one dies after a medical malpractice injury. The deceased patient is no longer alive to try and get justice for their negligently-caused death so a representative can step into their place to make sure the doctor responsible is held accountable. 

Wrongful death lawsuits in Illinois have a different statute of limitations from other types of personal injury or wrongful death claims. Under 740 Illinois Compiled Statutes 180, “every such action shall be commenced within 2 years after the death of such person.”

Notice Time Limit for Lawsuits Against the City of Chicago for Personal Injury

In some states, there is a different notice requirement that the plaintiff has to comply with if they file a medical malpractice or personal injury claim against a government employee or agency. The notice requirement is generally shorter than the statute of limitations. Some cities require notice within 1 year or even shorter. 

For personal injury claims involving the City of Chicago or Cook County, Illinois. For actions against public entities and public employees in Illinois, 745 ILCS 10/8-101(a), for personal injury claims, “No civil action other than an action described in subsection (b) may be commenced in any court against a local entity or any of its employees for any injury unless it is commenced within one year from the date that the injury was received or the cause of action accrued.” 

However, the time limit for medical malpractice claims against state entities is the same as for most medical malpractice cases. Under 745 ILCS 10/8-101(b), for injuries or death arising out of patient care, no action “shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of those dates occurs first.” 

However, for medical malpractice cases, “in no event shall such an action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged.”

Medical Malpractice Statute of Limitations By State

Different states have different statute of limitations laws for filing a medical malpractice lawsuit. Different states also have different laws for the discovery rule, wrongful death, and when the injury victim is a child. Talk to a medical malpractice lawyer in your state to make sure you file your case in time to recover compensation for medical bills, lost wages, and pain and suffering. 

File Your Chicago Medical Malpractice Lawsuit Before the Deadline

Statute of limitations enforcement can be harsh. Late filing will generally mean that the defendants will move to dismiss your claim because it falls outside the statute of limitations. It may not seem fair but filing your claim even one day late can mean you will receive nothing in compensation for your injuries caused by a surgical error. 

For example, an injury victim suffers a serious anesthesia error that leaves them with permanent brain damage, physical disability, and mental impairment. The injury victim has 2 years from the date of the injury to file a medical malpractice lawsuit. On the last date allowed to file a claim, the courthouse closes at 4:30 PM. 

The paperwork is all finished and ready to file with the court. However, there is traffic and limited parking, and the person shows up at the courthouse at 4:31 PM. Even though it is only 1 minute late, the lawsuit would not be filed until the next day. The injury victim may have their case dismissed, receiving nothing for their permanent disability injuries caused by a medical error. 

If you were the victim of a medical injury after receiving negligent medical treatment, you may be able to recover compensation for your injuries but only if your lawsuit is filed in time. Call experienced medical malpractice attorneys who can look at your case, answer your questions, and help you understand your legal options to file a claim against a negligent doctor. Contact Gilman & Bedigian online or at 800-529-6162 for a free consultation.

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