How Long Do You Have to Sue a Doctor for Malpractice in Illinois?

Thursday, June 6, 2024

How Long Do You Have to Sue a Doctor for Malpractice in Illinois?

Written by Malman Law, reviewed by Steve J. Malman.

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.

Illinois Malpractice Statistics

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.

What is a Statute of Limitations?

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.

Tolling of the Statute of Limitations

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.

The “Discovery Rule”

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.

Statute of Repose

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.

What Should I Do If I Miss the Filing Deadline?

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.

How to Prove Negligence After Surgery

Although you may be entitled to compensation after a botched surgery, you must demonstrate that the healthcare provider owed you a duty of care. In a surgical malpractice case, the duty stems from the doctor-patient relationship.

You must also demonstrate that the doctor failed in their duty of care by way of a surgical error. After that, you must prove that the healthcare provider’s negligence caused harm or injury.

Finally, you must demonstrate the damages or losses you suffered due to the injury, including medical expenses, lost income, and emotional distress.

The injured victim has the burden of proof in establishing the facts in a surgical malpractice case.

First, medical records form a strong foundation for your case. They contain vital information about your injury, treatment, diagnosis, medications, and interactions with other healthcare providers.

You’ll want to gather various records followed by a review with your legal team.

Some of the crucial records may include:

  • Test results
  • Prescription notes
  • Diagnosis report
  • Progress notes
  • Medical bills

Look for discrepancies, missing entries, and conflicting information, often indicating negligence by a healthcare provider.

Expert opinion is another aspect of proving medical malpractice. Your attorney can apply their skills to obtain opinions in the same field as the at-fault defendant.

An expert can provide insights into whether a doctor deviated from set standards of care. An expert’s testimony is critical to connecting the negligence directly to the harm you sustained.

Photographs and visual evidence can also substantiate your personal injury claim for a surgical error. Take clear images of the images caused by the doctor’s negligence, including surgical wounds, infections, or complications.

Most importantly, keep track of medical expenses, including hospital bills, rehabilitation, and doctor’s fees. If the surgical errors affect your ability to work, document your lost income due to missed work days or reduced earning capacity.

Four Factors in Medical Malpractice Cases

If you believe you’re a victim of medical malpractice, the burden of proof lies with you. To successfully prove a medical malpractice claim and obtain damages, you must prove the following four elements:

  • Duty: You must demonstrate the presence of duty when a healthcare provider or institution undertakes to care for or treat a patient. The duty of care dictates that a physician must adhere to a standard of reasonable care while undertaking any acts that may foreseeably harm a patient.
  • Breach: A breach of duty of care occurs when a healthcare professional fails to meet recognized standards of care when treating a patient. Breach of duty of care equates to negligence, which can manifest in various ways, including not conducting necessary tests, making errors during surgery, and failing to inform a patient about the risks of a procedure.
  • Causation: The third element involves causation, which links the breach of duty to the physical harm or injury sustained by the patient. To establish causation, the injured victim must prove that the medical provider’s negligence was not remote or incidental but a substantial factor in giving rise to the injury.
  • Damages: Damages are the final element in proving a medical malpractice case. They refer to the actual harm or loss due to medical malpractice, including medical expenses or lost wages.

Financial Awards You May Be Entitled To

After a surgical error, the injured patient suffers substantial financial losses because of the accident. The injured victim can pursue economic damages to compensate for the monetary losses they sustained due to the surgical error.

Examples of economic damages include:

  • Medical expenses
  • Lost income
  • Out-of-pocket expenses

An injured victim can pursue non-economic damages to compensate for the intangible losses they sustain due to the injury.

Examples of non-economic injuries include:

  • Pain and suffering
  • Loss of enjoyment of life
  • Emotional distress
  • Permanent impairment
  • Loss of companionship

Who May Be Held Liable for Your Injuries and Damages?

Depending on the circumstances of your injury, you could file a medical malpractice claim against various parties, including:

  • Medical Professional: You may file a claim against a healthcare provider who offered substandard care, such as doctors, surgeons, physicians, or physician assistants.
  • Healthcare Facilities: Hospitals and medical institutions may be liable for the actions of their employees, including doctors and nurses. A healthcare facility may be liable if it fails to maintain adequate staffing levels, neglects training, or provides defective equipment.

How Can a Medical Malpractice Lawyer Assist Me?

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:

  • Obtain pay stubs and employment verification
  • Obtain your medical records
  • Obtain your medical bills and other expenses related to your injury
  • Gather testimony from family and friends
  • Gather testimony from your physician and other doctors involved in the incident

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.

A Dedicated Chicago Medical Malpractice Lawyer

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.

Steve Malman

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
Justia Profile: Steve Malman
Illinois Registration Status: Active and authorized to practice law—Last Registered Year: 2024

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This page has been written, edited, and reviewed by a team of legal writers following our comprehensive editorial guidelines. This page was approved by President and Founder, Steven J. Malman who has more than 20 years of legal experience as a personal injury attorney.

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