Blog Posts
Medical Malpractice

How Long Do You Have to Sue for Medical Malpractice?

April 11, 2022

How long do you have to sue for medical malpractice in Illinois? In most cases in Illinois, patients have a two-year deadline to bring a medical malpractice lawsuit. The clock starts ticking the day the patient discovers or could have discovered the medical negligence. In some cases, exceptions to the medical malpractice statutes of limitations may exist. 

What Is a Statute of Limitations? 

A statute of limitations is a law that restricts the maximum period within which a person or entity can start legal proceedings after an alleged offense. Different states have different filing timeframes. Various forms of injuries or claims may also carry different filing deadlines. 

Statutes of limitations require plaintiffs to bring lawsuits within a certain amount of time. The deadline encourages plaintiffs to file cases when the evidence and memories are fresh and witnesses available. It also protects defendants from stale claims in the future. 

Your medical malpractice lawyer can help you understand your specific filing deadline for a medical malpractice lawsuit. The lawyer can handle the filing process for you to avoid common mistakes, such as late filings and poor documentation. 

When Does the Clock Start “Ticking” for a Medical Malpractice Case? 

The filing deadline for medical malpractice cases generally begins on the day the underlying medical mistake happened. Illinois has established specific rules to address specific situations not addressed by the standard filing deadline.

The ‘Discovery Rule” 

The discovery rule can extend the timeframe for filing medical malpractice lawsuits. It’s an exception to the set deadline in medical malpractice lawsuits. This rule targets victims who may not have noticed their injuries arising from a medical provider’s error until after the expiry of the traditional filing timeline. It allows such victims to bring their lawsuits after the standard statute of limitations expiry. 

Under the discovery rule, the filing deadline begins when you notice or should have reasonably noticed that a medical professional harmed you.  A diagnosis that confirms the presence of a surgical instrument in your body should alert you that you are a medical malpractice victim. 

Your malpractice lawyer can review the facts and assemble evidence to determine whether your medical malpractice case has to go to court. An alternative dispute resolution may sometimes be the best option for your case. 

Discovery Rule Example 

Let’s say you had surgery in December 2019, and you were generally okay until you began experiencing pain and discomfort a year later. In December 2020, an X-ray revealed that you had a surgical tool inside your body. The filing deadline may start on the date that you discovered the injury and its source. In this case, the clock would start “ticking” in December 2020. You need to initiate a medical malpractice lawsuit by December 2022 if you live in a state with a two-year statute of limitations. 

Minors 

Illinois has a separate filing timeframe for children below 18 years who suffer harm because of a health care provider’s medical error or negligence. Victims are required to bring their malpractice cases within eight years from the day the medical malpractice in question happened. This filing deadline does not extend past the victim’s twenty-second birthday. 

What Is the Statute of Repose in Medical Malpractice Cases? 

A statute of repose installs an absolute time limit on the victim’s right to initiate a medical malpractice claim, regardless of when the victim knew or should have reasonably known that he or she had suffered a medical malpractice injury. A statute of repose can bar victims from bringing medical malpractice lawsuits more than ten years from the date of the suspected medical error. 

What Happens if You Miss the Deadline to File a Medical Malpractice Lawsuit?

If the statute of limitations expires before you initiate a medical malpractice lawsuit in Illinois, you may lose your right to bring a lawsuit and receive financial compensation for any losses or expenses arising from the alleged medical error. 

If you proceed to file your case after the filing deadline has expired, the court will most likely dismiss it. Check how your state’s medical malpractice filing deadline affects your case to be on the safe side.

Involve a medical malpractice lawyer immediately after you suspect you might be the victim of medical malpractice. Your lawyer will go through the facts of the alleged malpractice with you and help you understand what is (and is not) medical malpractice

Common Medical Malpractice Examples 

There are many types of medical malpractice; however, some types of medical malpractice are more common than others. 

Misdiagnosis or Failure to Diagnose 

Medical providers owe patients a duty to follow the accepted protocols for diagnosing different medical conditions. If a patient suffers harm due to a provider’s incorrect diagnosis or failure to diagnose, the patient may have a right to sue for medical malpractice.

Failure to diagnose a maternal or newborn infection, for instance, could inflict birth injuries on a child. The child’s parents may have a legitimate medical malpractice claim against the responsible medical provider. There are many other instances when a birth injury is medical malpractice

Inappropriate Treatment 

Medical malpractice can arise when a provider mismanages a patient’s condition. The provider may, for instance, administer the wrong treatment for a specific illness. Or the provider may recommend risky or unapproved treatments. Administering the correct treatment incompetently may also qualify as medical malpractice. 

Failure to Inform Patients of Known Risks 

The law requires health care providers to inform patients of the potential risks of a treatment plan or procedure. Failure to disclose this information could amount to medical malpractice. This is especially true if the patient might have opted out of the treatment and avoided injuries if he or she knew the possible risks.

About The Author

Photo of Jeffrey M. Goldberg
Attorney Jeffrey M. Goldberg, founder of Goldberg & Schulkin Law Offices, has spent his entire professional career handling cases involving birth injury, medical malpractice, product liability, aviation and related accidents.