Illinois Medical Malpractice Statute of Limitations

Friday, June 23, 2023

Illinois Medical Malpractice Statute of Limitations

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

In Illinois, medical malpractice is outlined by specific laws that explain what qualifies as malpractice and the legal restrictions and rights of a patient pursuing a claim. These laws define the statute of limitations for filing a malpractice claim to take legal action against a healthcare provider.

Understanding how the Illinois medical malpractice statute of limitations applies to your claim is essential to seeking restitution for your injury or loss. Our Chicago medical malpractice lawyers can provide the comprehensive legal guidance necessary to successfully navigate complex personal injury and wrongful death claims.

Our experienced and skilled litigation attorneys at Malman Law can help protect your legal rights and ensure your case is filed in accordance with state regulations and the medical malpractice statute of limitations. For a personalized case consultation on your potential medical malpractice case, contact our reliable Chicago medical malpractice attorneys today.

What is a Statute of Limitations?

A statute of limitations is a law that establishes the amount of time a person has to file a lawsuit. The time period generally begins from the date the incident occurs; however, there are a few exceptions that allow the court to begin the period of time on another date.

States set statutes of limitations for civil and criminal cases, and the length of time typically differs based on the type of case.

The purpose of the statute of limitation and other laws regarding deadlines is to encourage claims to resolve promptly. With these regulations in place, the court can ensure cases move forward or close after a certain period of time has elapsed.

In the context of medical malpractice cases, statutes of limitations can be a looming obstacle. There is often much investigation and medical care needed before an informed decision to file a lawsuit can be made. While time-restricting laws successfully prevent unnecessarily prolonged cases, they can also present challenges for the plaintiff.

Therefore, it is important to seek prompt medical care if you are suspicious of potential medical issues following a procedure or other medical treatment. It could be the difference between protecting your rights and missing the statute of limitations.

The Discovery Rule

The discovery rule is a crucial aspect of protecting the rights of victims of medical malpractice. This rule recognizes that some harm may not be apparent or recognized until a significant period of time has passed. The discovery rule allows for the clock on the statute of limitations to start ticking from the date of discovery of the injury rather than from the date of the incident.

For instance, a patient may be unaware of a foreign object that was left behind in their person during surgery until they present symptoms and seek follow-up care. It could be years later that the patient learns about the foreign object. In this case, the start date of the statute of limitations would not be the initial surgery date but the date the patient discovered the foreign object.

Although the rule of discovery is a valid way to extend the statute of limitations, defendants often dispute it. A defendant may dispute the date of discovery by claiming that the victim should have known about the injury on an earlier date. Medical records will serve as evidence to confirm dates of discovery.


When it comes to medical malpractice cases, the statute of limitations can be a crucial factor in determining whether a victim can pursue legal action against a negligent healthcare provider. While the general rule is that victims have from the date of injury or date of discovery to file a claim, exceptions can apply in specific situations.

Here are some of the most common exceptions to the medical malpractice statute of limitations:

Exception for Minors – Patients under 18 injured by medical malpractice have up to 8 years from the date of the treatment to file a claim; however, they must do so before their 22nd birthday to qualify for the exemption.

Continuing Treatment Exception – When a healthcare provider continues to treat a patient for the same condition that led to the alleged malpractice, the statute of limitations may not start until the last treatment date. This exception aims to protect patients who may be unaware of their injuries until after their treatment has ended.

Criminal Acts Exception – If a healthcare provider engages in criminal acts while providing medical care, such as sexual assault, the statute of limitations may be extended on a case-by-case basis.

Fraud Exception – If a medical professional or facility intentionally withholds information about negligence or improper care to avoid a malpractice claim, the statute of limitations is five years from when the cause of injury was discovered.

Exception for the Incapacitated or Disabled – If a patient is physically unable to pursue a medical malpractice claim, the statute of limitation will not start until they become able to do so.

How Long is the Statute of Limitations for Medical Malpractice?

In Illinois, the statute of limitations for medical malpractice is two years from the date of injury or the date of discovery. This means the patient must file a lawsuit with the appropriate court before the end of the day on the day the statute of limitation expires. Knowledge of Statute of Limitations on medical malpractice across different states allows us to navigate legal complexities effectively, ensuring victims have ample opportunity to seek justice and compensation for medical negligence.

Due to exceptions and the nuances of each case, the exact length of time of a statute of limitation can vary. For a case consultation to determine the deadline of your potential medical malpractice claim, consult a qualified attorney.  It is essential to act promptly and seek legal guidance as soon as possible to avoid missing the deadline.

After the true statute of limitations date passes for your case, you will be unable to seek restitution for your injuries.

What if I Cannot File a Claim Because of a Disability? 

Suppose the person entitled to a medical malpractice claim does not have a legal disability at the time of the accident but develops a disability before the statute of limitations. In that case, the statute of limitations period stays until the injured victim regains their mental faculties.

The statute of limitations begins to run once their legal liability ceases. However, the injured victim’s legal liability ceases upon their death. If the defendant files a motion to dismiss based on the statute of limitations, it may be unsuccessful if they file the lawsuit within two years of the disabled person’s death.

Role of Adult’s Legal Guardian

A legal guardian is appointed to make decisions that are in the best interest of the disabled person. A legal guardian may have the authority to make financial, medical, or personal decisions on behalf of their ward.

It is the court that appoints the legal guardian instead of the ward. A legal guardian can file a legal claim—including a medical malpractice lawsuit— on behalf of the ward and is often authorized to take specific actions reserved for people who hold a power of attorney.

Power of Attorney

An individual chooses who will hold the powers of attorney on their behalf and stipulates the circumstances in which the powers will cease to exist through a legal document. An individual with medical power of attorney may file a medical malpractice claim on behalf of an incapacitated individual.

What if I Did Not Learn About the Medical Malpractice Because the Health Care Provider Actively Concealed It?

If a healthcare provider actively conceals a medical malpractice, the statute of limitation clock starts to run after the victim discovers the harm. 

Under the discovery rule exception, the statute of limitation for bringing a medical malpractice claim pauses until a claimant discovers (or should have) an injury or loss instead of the date the medical malpractice occurred.

The discovery rule effectively extends the statute of limitations to two years after the discovery of the injury instead of the date of medical malpractice that caused the harm.

What Should I Do if I Am Uncertain Whether One of the Exceptions Applies to Me?

It is difficult to move on after suffering an injury due to medical malpractice, let alone pursue a claim. However, you can eliminate doubts by working with a medical malpractice attorney for legal advice on the statute of limitations and the applicable exceptions.

How Does Death Impact the Statute of Limitations?

If a medical malpractice results in the death of a loved one, the statute of limitations applies based on the principle “when the cause of action has occurred.” Following the death of a loved one because of medical malpractice, you suffer loss, necessitating a claim.

If a loved one dies months after a botched surgical operation, the statute of limitations does not begin from the date of surgery. Instead, the clock starts to run after your loved one dies from a botched surgery.

What Constitutes Medical Malpractice in Illinois?

Not all negative implications of medical treatment qualify as medical malpractice. Even when the proper medical practices are followed, there can still be adverse events or complications that do not rise to the level of malpractice.

There are specific elements that must occur in order to hold a medical professional legally responsible for your damages. The following three key elements must be present to warrant a medical malpractice case.

Duty of Care

For malpractice to occur, you must be a patient or under the care of the healthcare provider. They must owe you a duty of care, meaning they have agreed to provide proper care and have a professional obligation to maintain a certain standard of care.

For instance, it is not medical malpractice if you have a medical emergency in public and a doctor tries to help you, but they do not provide proper care. This is because they did not owe you a duty of care.

Standard of Care

Across all fields of medicine, there is a widely accepted standard of care. Medical malpractice occurs when a medical professional fails to uphold the standard of care that is expected of them.

The healthcare provider must breach the standard of care to constitute malpractice. Therefore, there must be a specific mistake made to prove that the medical professional committed malpractice.

For example, if you become ill following surgery but it is confirmed the doctor and team did everything according to the standard of care, there is no malpractice. However, if you become ill following surgery and records show the doctor breached the standard of care by performing the surgery improperly, there is potentially a medical malpractice claim.

Patient Sustained Damages

To warrant a legal case against a medical professional, a breach of the standard of care must cause harm. In other words, the patient must experience physical injury, financial burden, or loss of life to be eligible for compensation in a malpractice claim.

The damage caused must be substantial enough to justify legal action. It is unlikely to successfully initiate a medical malpractice case for a bruise or other small, temporary injury.

In general, medical malpractice claims often require an understanding of complex medical terminology and procedures to confirm that damages are present and sustained by the improper medical care in question.

How To Initiate a Medical Malpractice Case

If you think you may be a victim of medical malpractice, it is important to understand how to initiate a claim to seek compensation.

Initiating a medical malpractice case can be daunting, but with the right legal team on your side, you can navigate this process with confidence. As the plaintiff, you and your counsel will complete the following steps of a medical malpractice case.

Contact a medical malpractice attorney. The first step is to obtain legal representation that can help you determine if you have a viable case and take the necessary steps to pursue it.

Gather relevant medical documentation. Evidence, including medical records, test results, and treatment plans, can help your legal counsel understand the medical malpractice and build a compelling case. In most cases, attorneys will review evidence prior to confirmation of representation to confirm that medical malpractice did take place.

Identify all parties involved. This step determines all potential defendants, such as medical professionals, healthcare providers, and insurance companies.

File a claim. Prior to an official lawsuit, you can attempt to settle your case through pre-suit negotiations. This can be successful for cases with minor damages. If the statute of limitations is rapidly approaching, your counsel may suggest filing a lawsuit with little to no pre-suit proceedings.

File a lawsuit. Your attorney will file a complaint, a legal document that outlines your claim and the damages, as well as the restitution you are seeking. This document must be submitted to the proper channel prior to the statute of limitations date. Once in litigation, you will reach a settlement with the defendant or proceed to trial.

Do You Have A Good Case For Medical Malpractice?

Medical malpractice cases are typically intricate and take time to resolve.

Before moving forward with legal representation and initiating a case, an attorney will evaluate the facts of the case to determine if your circumstance constitutes medical malpractice.

Your attorney will thoroughly investigate your case to determine if there were any deviations from the standard of care that constituted a breach of the duty owed to you. Proving that medical malpractice occurred can be a challenging process that requires detailed medical records and expert witness testimony.

Suppose the evidence supports that a medical professional’s negligence or substandard care caused your harm. In that case, you may have a case for medical malpractice and be entitled to compensation for your damages.

Contact Our Chicago Medical Malpractice Attorneys For Help

Medical malpractice has devastating physical and financial consequences that can impact your and your loved ones’ lives forever. From reduced mobility and reduced cognitive function to lost limbs and lost lives, the negligence of a medical professional can cause a diverse range of implications. At Malman Law, we understand that navigating the complexity of a medical malpractice case while experiencing an injury or loss can be extremely overwhelming.

Our committed team of attorneys is available to help you through this difficult period. Our medical malpractice attorneys are committed to providing you with compassionate and effective legal representation. We take the time to explain and discuss your rights and legal options and keep open communication throughout your case. Our experienced attorneys will work tirelessly on your behalf to investigate your case, identify all responsible parties, and fight for justice.

If you or a loved one has been the victim of medical negligence, you have a right to seek restitution for your injuries, pain and suffering, and other damages. Be mindful of the statute of limitations that places strict time restraints on filing a lawsuit for medical malpractice. Consult an experienced medical malpractice attorney at Malman Law today to get started with your potential malpractice claim. Contact our office today.

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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