A doctor who administers substandard treatment will likely cause a patient harm. As Chicago medical malpractice lawyers, we understand the gravitas of a physician’s mistake.
In most jurisdictions, you have a certain time period to file a lawsuit against a healthcare provider or facility. Missing that deadline can bar you from recovery.
If you have been affected by a physician’s malpractice, it is important to know the statute of limitations and some exceptions to the rule.
In a recent year, medical malpractice payouts in Illinois reached a total of $203,242,000. Chicago carries one of the highest rates for physicians to carry malpractice insurance in Illinois. Between 2018 and 2022, the average annual medical malpractice payout totaled $214,720,000.
Over 7,100 adverse action reports were filed in the same five-year time period. An adverse action is a serious mark against a healthcare provider. It can take away a physician’s clinical privileges or membership in a healthcare organization.
Every state has a time limit in which a party or entity can begin legal proceedings after an event takes place. In Illinois medical malpractice cases, you only have two years from the date of an incident to file a lawsuit.
The statute of limitations is put into place to protect defendants from being sued for past transgressions years down the road.
If a lawsuit is brought against someone after a substantial amount of time has passed, evidence will be stale, and witness testimony will be less reliable. Additionally, a victim will begin to heal, making any injuries difficult to identify.
In some circumstances, the statute of limitations for medical malpractice may be tolled, meaning that the clock will be paused or may not begin “ticking” for a certain period of time.
Most times, the statute of limitations begins on the date the medical error was committed. Albeit, in some situations, the patient finds out well after the date of the medical procedure or incident.
Until the prospective plaintiff knows (i.e., actual knowledge) or should have known (i.e., constructive knowledge) about the medical negligence, the clock will not begin “ticking.”
This is known as the discovery rule. You cannot initiate a lawsuit until you find out that a physician has committed malpractice. The discovery rule is based on the date a reasonable person had knowledge of the medical error. The rule also applies if the plaintiff received written notification of the patient’s injury or death.
For example, weeks or months after heart surgery, you begin to experience pain and discomfort. You have an X-ray taken only to find out that a surgical clamp was left in your chest cavity. The date the X-ray was taken would signify the beginning of the statute of limitations.
A statute of repose is a law that prohibits the plaintiff from taking legal action after a certain period has passed. The statute of repose is the maximum amount of time allowed for a legal claim to be initiated.
The statute of repose deadline is normally four years after the date of the medical event. It does not matter when the victim discovered the injury. The only exception to this rule applies to minors.
Victims of medical malpractice who are under 18 years old are granted eight years to file a medical malpractice claim. However, the claim must be filed before the victim’s 22nd birthday.
If the injured person is a minor, then an adult must file on their behalf. The adult must have legal “standing” in order to file for the child, meaning that he or she has the right to bring the case to court.
The eight-year time period is allowed for cases involving minors since children’s bodies are still growing, and a medical error may not be readily apparent. Birth injuries usually fall under this category.
If a disability prevents you from taking legal action, the statute of limitations may be tolled for two years after your disability ends.
The statute of limitations may pause if you become disabled during the two-year period following your injury.
If the defendant acted fraudulently, deceiving you in an attempt to cover up a medical mistake, then the time period to file will be extended.
The “clock” will not begin until the patient knows or should have known about the injury.
If you believe that you have missed the statute of limitations, you should still contact an attorney. An attorney will be able to review the facts in your case and determine if there are any extenuating circumstances that will allow you extra time to take legal action.
However, if you have missed the “window” to file your claim, you may be able to negotiate a claim with your physician’s malpractice carrier. This can only take place if the opposing party is willing to negotiate.
An experienced medical malpractice lawyer knows the documentation needed, the court forms that need to be filed, and the strict deadlines that must be adhered to in a malpractice lawsuit.
Our priority is getting your case filed on time and gathering the evidence necessary to build a case in your favor.
Additionally, we will:
Our attorneys will be able to examine your expenses and lost income in order to determine the relief you should receive. This relief, or “damages,” is designed to fairly compensate you and should reflect the extent of your injuries and losses.
Damages can be based on easily calculated losses, such as lost income and medical expenses, known as economic damages. You may also be able to receive compensation for losses that affect your quality of life, known as non-economic damages, such as pain and suffering and emotional distress.
There is a recovery period for every lawsuit. Missing that deadline can mean missing the opportunity to recover for the hardship you endured.
If you have been the victim of medical malpractice, your healthcare provider is legally obligated to pay for any wrongdoing. Let us discuss your options. Contact Malman Law today to schedule your free consultation.
Malman Law’s founder Attorney Steven Malman has over 30 years of experience handling personal injury, nursing home, medical malpractice, truck accidents, car accidents, premises liability, construction, and workers’ compensation cases in Chicago, IL.
Years of experience: +30 years
Illinois Registration Status: Active and authorized to practice law—Last Registered Year: 2023