How Long Do You Have to Sue for Medical Malpractice?
How long do you have to sue for medical malpractice in Illinois? You have up to two years from the date you knew or reasonably should have known about an injury resulting from the negligence of a healthcare provider to sue for medical malpractice. The time restriction is referred to as the statute of limitations. Illinois extends how long you have to sue for medical malpractice if the injured party is a child or disabled. Other exceptions may apply that could shorten or lengthen the statute of limitations. If you file a lawsuit after the statute of limitations passes, you may lose your legal right to get compensation. Because of this, it’s crucial to get a better understanding of the state’s time limits and how they apply to your case.
The Statute of Limitations Governs How Long You Have to Sue for Medical Malpractice
A statute of limitations is a law that restricts the time you can file a lawsuit and varies from one state to another as well as across different types of claims. The medical malpractice statute of limitations sets a time limit on an injured patient’s right to file a claim against a healthcare professional or facility.
When Does the Statute of Limitations Clock Start “Ticking”?
The statute of limitations clock for medical malpractice usually starts ticking from the date the healthcare provider commits the error. But most states, including Illinois, apply the discovery rule because many patients do not become aware that a healthcare provider’s mistake has harmed them for months or years. It can take several months or years of diagnostic testing, consultations with specialists, and follow-up appointments before realizing the origins of the patient’s condition.
The discovery rule allows for the extension or suspension of the statute of limitations until you discover or reasonably should discover that you sustained an injury due to a healthcare provider’s negligence. The rule shifts the clock from the date of that the malpractice occurred to the date that you discover or should have discovered the malpractice.
In some cases, you may instantly discover that a medical error caused your injuries, such as surgery on the wrong side of your body. In other instances, there may be no way for you to discover the injury or its source until months or years afterward. For example, instruments left in a patient’s body cavity are a case that medical malpractice lawyers commonly handle. The instruments may slowly damage organs and cause patients to start experiencing discomfort or pain more than a year after the initial surgery.
The Statute of Repose
Some states have a statute of repose within their statute of limitations. It provides an absolute or maximum deadline within which you can file a medical malpractice case, regardless of when you discovered the malpractice. It runs from the moment the medical malpractice injury occurred.
Statute of Limitations for Minors
Most states have a special statute of limitations for children below the age of 18 who have been injured because of malpractice. Under these special rules, the statute of limitations is extended to a certain number of years after the treatment that caused the injury.
What Are the Statute of Limitations Laws in Illinois?
In Illinois, the medical malpractice statute of limitations gives you two years from the discovery date to file a claim. The discovery date is the day that you knew or reasonably should have known that medical malpractice caused your injuries.
Suppose a doctor left a surgical sponge inside a patient’s body after surgery on April 1, 2020. That is a clear form of medical malpractice. The doctor was unaware of the error and closed up the patient. The patient starts experiencing problems on October 1, 2021. An exam on November 1, 2021, shows that a surgical sponge is inside the patient’s body. Even though the patient had the operation in 2020, the discovery date is November 1, 2021. That is when the two-year statute of limitation clock will start running.
Illinois’s Statute of Repose
Additionally, Illinois has a statute of repose that runs for four years from the date of the medical error, event or act that led to your medical malpractice injury. Therefore, you should bring a medical malpractice lawsuit not more than four years after the date of the treatment that caused your injury, regardless of the date when you discovered the injury.
For example, you may not discover that your injury is due to medical malpractice until three years after the event or error that caused the injury. So, how long do you have to sue for medical malpractice in this case? Because of the four-year statute of repose, you will typically have one year after discovering the injury to sue the negligent healthcare provider.
Exceptions to the Medical Malpractice Statute of Limitation Laws
Factors like age, fraud, and disability may prevent you from filing a timely medical malpractice claim. As a result, some exceptions to medical malpractice statute limitations exist in Illinois.
Illinois has a special statute of limitations and repose for victims who were minors when the medical malpractice occurred. That is because children’s bodies are developing and growing, so injuries sustained due to medical negligence may not be apparent immediately. Children below 18 have up to eight years from the date of the alleged malpractice to file a medical malpractice claim. Nevertheless, the child must bring the claim before turning 22.
Therefore, if your child suffered a birth injury, you will likely have up to your child’s eighth birthday to file a medical malpractice lawsuit. However, if your child sustained a medical malpractice injury when he or she was 16, you must file a lawsuit within the six years between the date of the treatment that led to the injury and the child’s 22nd birthday.
In Illinois, the statute of limitation does not begin immediately if a medical malpractice injury physically incapacitates a patient to the point that he or she is unable to file a claim. For example, the victim may have severe brain damage or be in a coma. The statute of limitations starts when the victim’s disability ends, and he or she can physically carry on with the medical malpractice lawsuit. From this point, the injured patient has to file a claim within two years.
If a healthcare facility or medical personnel acted fraudulently, the time limit will extend to five years from the day the patient discovered the cause of the injury. In medical malpractice cases, fraud arises when medical institutions or practitioners purposely withhold information to hide substandard care or negligence.
Why Is There a Medical Malpractice Statute of Limitations?
Illinois’s statute of limitations law allows malpractice cases to remain fair for both victims and medical providers allegedly involved in malpractice.
The memories of witnesses fade, the injuries sustained can heal and be more challenging to identify, and critical pieces of evidence disappear or become damaged over time. Therefore, the more that time passes after a negligent act, the harder it becomes to prove the act caused your injury. The statute of limitations encourages victims to file their claims nearer to when the underlying malpractice occurred.
The statute of limitations also allows medical professionals to move on with their lives without worrying about facing a lawsuit or legal controversy after a certain period.
What if the Medical Malpractice Statute of Limitations Deadline Has Passed?
Once the statute of limitations runs out, Illinois courts will almost certainly decline considering your claim. When your suit is time-barred, you lose your legal right to recover damages after a medical provider causes your injury because of negligent medical actions. In the case of a birth injury, allowing the statute of limitations to run out could mean raising a child with permanent injuries without having a way to get compensation from the medical professionals responsible.
Why Filing a Medical Malpractice Case Requires Taking Swift Action
Even if the statute of limitations deadline seems like a long time, the best practice is to file your medical malpractice claim as early as possible.
Medical malpractice is a complicated type of case, and it gets even more complex if you try to handle it on your own while recovering from your injury. While it is understandable if you fail to file a case because you were not in a position to handle it emotionally, that may not let you get around the state’s statute of limitations.
Why It’s Important to Hire a Medical Malpractice Lawyer
Hiring a medical malpractice lawyer promptly lets you delegate the stress and legalese that come with managing a case. The lawyer takes care of everything, including ensuring you comply with the statute of limitations while you get the freedom you need to prioritize your healing and health. There are several other reasons why you should turn your case over to a lawyer immediately after you suspect medical malpractice may have caused your injury.
The laws change frequently. New laws may impose new requirements or other deadlines you may not know. Consequently, you should contact a lawyer as soon as possible after sustaining your injury.
One example of a recent law change is the limits on the money award an injured patient can receive. Since 2010, there have been no caps on medical malpractice damages in Illinois. Before that, the state capped non-economic damages at $500,000. The Illinois Supreme Court declared the cap unconstitutional. Nevertheless, physician and insurance defense attorneys and state lawmakers have been actively trying to limit the number of medical malpractice damages that victims can recover. Therefore, it pays to consult a medical malpractice attorney and file your claim as soon as possible.
Building a Strong Case Takes Time
Two years may sound like a long time, but it takes time to gather your medical records, review them, collect, analyze, and preserve evidence, and prepare a claim. Contacting a medical malpractice lawyer early enough gives the lawyer enough time to investigate your case and complete all the necessary steps to file your claim.
Illinois law also requires you to attach an affidavit of merit to your medical malpractice complaint. The affidavit requires an experienced medical professional to review your case. Medical malpractice lawyers usually work with a network of medical professionals to build compelling claims. The professionals that a lawyer has access to will be beneficial in helping you prepare and file the affidavit.
Given that a legal and medical analysis has to be done before you file a medical malpractice lawsuit, you should not wait before finding an attorney and having the reviews completed before the expiration of the appropriate filing deadline.
Explore Other Legal Options
Do not draw conclusions about how long you have to sue before speaking to a medical malpractice attorney, even in instances when you think the statute of limitations has passed. After reviewing your case, the attorney will establish any applicable exceptions or elaborate on the other legal options that may be available. For example, when the treatment for your work injuries causes more pain or a breast implant becomes defective and causes harm.
Other wrongful acts could have occurred tangentially to the medical error, meaning you could file separate claims with different filing deadlines. In the case of defective breast implants, a victim could also sue the breast implant manufacturer.
The key to getting the best outcome in your medical malpractice case is acting as soon as you realize your injury can be traced back to a hospital’s or medical professional’s negligence.