Statute of Limitations for Medical Malpractice Claims

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This page discusses the statute of limitations in most Illinois medical malpractice cases. The information on this page does not apply to every case and as a result you shouldn’t draw any final conclusions without speaking to a lawyer. For a full review and determination of how the law applies to your specific incident or injury, please contact us. We are attorneys in Illinois who will talk to you for free, offer analysis of your situation and if needed, a referral to an independent law firm that does a great job on these cases.

Statutes of limitation restrict the time period that a person can file a lawsuit and vary from state-to-state as well as by the type of legal action involved. In Illinois, the statute of limitations for medical malpractice actions is generally 2 years from when you knew or should have known that malpractice occurred, but no more than 4 years, from the date malpractice happened. In other words, if you just discover that a doctor made a mistake five years ago, it’s likely too late. Or if you’ve known about a problem, but have been focusing on your recovery, that could cause you to lose your legal rights.

All that said, certain exceptions that can extend the time to sue may exist under the law in certain circumstances.

For instance, there are longer time limits for suing for malpractice In Illinois for minors. If the person harmed was under the age of eighteen when the malpractice occurred, the limitation period is eight years from the date of the alleged malpractice, or until the minor turns 22, whichever is sooner. So if an injury happens at birth, you have up until their 8^th birthday in most circumstances to file a lawsuit against whoever is responsible for their injuries.

Similarly, if the claimant is mentally incompetent, the period of limitations does not begin to run until the disability is removed. An example of this would be if someone was in a coma or had severe brain damage. It is a very rare exception to the rule that shouldn’t be relied on if possible. It would be very unusual for a defendant to not try to get your case thrown out if you went beyond the time limit and tried to rely on this exception. In other words, act as fast as you can.

Depending on whom you are suing, there may also be other deadlines within the first 2 years requiring that the entity or entities be put on “notice” much earlier than the statute of limitations period. For example, some private hospitals and medical clinics have doctors on staff who are actually Federal government employees. So in those cases you may have to file a Federal Tort Claims Act claim and put them on notice and/or sue within two years of when the malpractice happened. It may not be obvious that they are Federal employees and should be looked in to right away.

The key thing to look out with Federally employed or funded doctors is that they may be at a regular hospital. So if your child is injured at birth, but the doctor was paid by a Federally funded clinic, your time limit to sue would not be eight years, but instead would only be two years. There have been multiple instances in Illinois where people were not aware of this rule and lost their right to sue. Federal Tort Claims Act Lawsuits do not only happen for care at the VA. They can happen in almost any hospital or clinic in Illinois.

Medical malpractice suits that result in death generally have to be filed within 2 years from the date of death. This is true no matter how old the person who died is. People are often grieving after the loss of a loved one and that makes sense. Unfortunately it is not an excuse for filing a lawsuit in time. Neither is if you thought that another family member was taking care of everything. Once the time limit passes, the case is barred.

The exceptions above are fact sensitive and require the analysis of a qualified attorney to determine if they apply to your specific situation. But there is one more factor to the statute of limitations that nobody discusses which is just as important.

Illinois medical malpractice lawsuits are complex and expensive. To file a lawsuit, you need an independent medical expert to review the medical records and sign an affidavit that states malpractice occurred and how it happened. This process starts with your attorney first reviewing the medical records and then sending them out to experts. It can take six to 12 months from the time you first contact a lawyer before they have an answer as to whether or not you have a case. In other words, if you reach out to a law firm with just a month or two to go before your time limit to sue is up, it can be extremely difficult to get someone good to look into your claim.

In other words, time is really of the essence in these cases. Illinois malpractice attorneys work on a contingency basis which means they only get paid if they win. To investigate a case properly, they need enough time to do a thorough analysis and speak with the right experts.

Statute of limitations questions can be difficult and confusing. If you have questions about the time limits to file a suit or would like an attorney referral please contact us. All calls are confidential and free. We promise to give you the same guidance we would give a family member or friend.