If you or someone you know has been a victim of medial malpractice, it is important to understand the time in which you have to file a lawsuit. Statutes of limitations and repose refer to laws that place deadlines on when an injured plaintiff or his representative must file a lawsuit against the at-fault doctor.
Statute of Limitations. In Illinois, the statute of limitations period for medical malpractice cases is generally two years, meaning an injured party must file a lawsuit within two years of his injury. 735 ILCS 5/13-212.
However, there are important exceptions to the two-year rule above. First, if the person injured is under 18 at the time of his injury, then the deadline to file a lawsuit is two years from his 18th birthday, and not two years from the injury. 735 ILCS 5/13-211. Second, if a person is under a legal disability when they are injured, then the statute of limitations period will not begin to run until his disability is removed. Common types of legal disability include incompetence, mental illness, and Alzheimer’s disease and dementia. In these examples, it is possible that the injured person’s disability may never be removed or “cured,” meaning that the statute of limitations would never expire and the injured person’s representative would have ample time to file a lawsuit. Finally, a third important exception is called the “discovery rule.” Under discovery rule, the two-year statute of limitations period will not begin to start running until a person knows or reasonably should have known of both his injury and that it was wrongfully caused. Once this information is “discovered” by the injured party, he then has two years from that date to file a lawsuit. For example, if a person undergoes a surgery and the surgeon leaves a foreign object inside the person’s body, the person may not learn of the existence of the foreign object until months or years after the surgery. In this circumstance, the person would generally have two years after learning of his injury to file a lawsuit against the surgeon.
Statute of Repose. The statute of repose is very important to understand because it imposes a near absolute deadline on when a lawsuit must be filed, even if one of the above exceptions to the two-year rule is present. In Illinois, the statute of repose for medical malpractice cases is four years for adults and ten years for minors. 735 ILCS 5/13-212. This means that if a person is over 18 when they were injured by medical malpractice, they must bring suit within four years after the doctor’s alleged negligent conduct. And if a person is under 18 when they were injured by medical malpractice, they must bring suit within ten years after the alleged negligent conduct.
The only exception to the statute of repose is that the repose period will not apply if the doctor fraudulently concealed the injured party’s cause of action from the injured person’s knowledge. 735 ILCS 5/13-215. This may occur if a doctor lies to a patient when asked about treatment that was performed.
Public Entities. If an injured person is bringing a medical malpractice lawsuit against a public entity, such as the University of Illinois Hospital or Stroger Hospital, the the statute of limitations period is one year and the statute of repose period is four years. 745 ILCS 10/8-101.
*IMPORTANT DISCLAIMER. Statutes of limitations and repose can be very complicated, and determining when an injured party must file a lawsuit is a very fact-intensive inquiry that will depend on the unique facts and circumstances of each specific case. The information provided above is offered for educational purposes only, and should not be taken as legal advice. If you have questions about when you must file a medical malpractice lawsuit, you should consult with an attorney who can investigate the facts of your case.
ELEMENTS OF A MEDICAL MALPRACTICE LAWSUIT
In order to bring a successful medical malpractice lawsuit, an injured plaintiff must prove four elements: (1) that the doctor owed him a duty of care, (2) that the doctor breached that duty, (3) that the doctor’s breach proximately caused an injury, and (4) damages. Bergen v. Shah-Mirany, 83 Ill. App. 3d 752 (1st Dist. 1980).
Generally speaking, all physicians in Illinois have a duty to use reasonable care when treating their patients. Reasonable care is defined as the amount of care and skill commensurate with that ordinarily possessed by members of the doctor’s profession. Davis v. Weiskopf, 108 Ill. App. 3d 505 (2d Dist. 1982).
With respect to breach, the injured plaintiff must show that the doctor’s conduct was negligent or unreasonable. Put differently, the plaintiff must show that the doctor’s conduct fell below the standard of reasonable care. The breach can be an act or omission by a doctor.
With respect to causation, the plaintiff must show that the doctor’s breach was the cause in fact, and proximate cause, of the plaintiff’s injury. In some cases, this may be easy to prove (such as a wrong site surgery), but in other cases, such as medication errors, proving causation may be very fact intensive and require expert testimony.
In order to file a medical malpractice case in Illinois, the injured party’s attorney must file a complaint which alleges facts that establish the elements above. The plaintiff’s attorney must also file an affidavit and the report of reviewing healthcare professional. In the affidavit, the injured party’s attorney must swear or affirm that he has consulted with a doctor about the case, and that the doctor has determined that the case has merit. 735 ILCS 5/2-622.
WHAT TO EXPECT WHEN BRINGING A MEDICAL MALPRACTICE LAWSUIT
A. Investigating the Case
The first step in a medical malpractice case is for the plaintiff’s lawyer to thoroughly investigate the facts of the case and the client’s injuries. This is done by interviewing the injured plaintiff, the plaintiff’s family, and any other witnesses to the doctor or hospital’s negligence. Second, the lawyer will obtain and review the plaintiff’s medical records from the doctor or hospital that committed the malpractice, as well as any other medical providers that treated the plaintiff. In reviewing the records, the goal is to: (1) identify specific examples of a doctor’s negligence, (2) understand the full nature and extent of the plaintiff’s injuries, and (3) determine whether the plaintiff needs and future medical treatment to recover from those injuries. A medical malpractice lawyer will also send the plaintiff’s medical records to a consultant so that the consultant can write a report regarding the merits of the case.
Once a clear picture emerges regarding a doctor’s negligence and the full nature and extent of the plaintiff’s injuries, the plaintiff’s lawyer may submit a demand letter to the doctor’s malpractice insurance carrier. The demand letter will educate the insurer about the the plaintiff’s theory of the case, and give a full description of the injuries the plaintiff suffered as a result of the doctor’s negligence. The demand letter will also demand a specific sum of money to settle the plaintiff’s claim. If the doctor accepts responsibility and wishes to pursue settlement, then the plaintiff’s attorney and the doctor’s insurance company can enter settlement negotiations before a lawsuit is filed.
B. The Litigation Process
If the doctor refuses to accept responsibility, then the lawyer will file a lawsuit against the doctor. If the injured plaintiff is still alive and is competent to bring the suit personally, then the suit can be brought in the plaintiff’s name. If the plaintiff is still alive but has an appointed guardian, then the suit will be brought by the guardian on behalf of the plaintiff.
If the plaintiff has passed away, the lawyer must determine who the proper plaintiff will be to represent the decedent’s estate. If the decedent had a will, then the plaintiff will be the executor of the decedent’s estate. If the decedent did not have a will, then the lawyer will need to have a special administrator appointed by the court to represent the decedent’s estate.
Once a lawsuit is filed, the plaintiff must serve the defendant doctor with a copy of the complaint and summons. Once the doctor is served, he or must hire an attorney to file an appearance on his behalf and file an answer admitting or denying the allegations of the complaint. Once the doctor is served and an answer is filed, the parties will engage in discovery.
Discovery involves both written and oral discovery. Commonly used written discovery tools are interrogatories and requests to produce documents. Interrogatories issued by the plaintiff will ask the defendant doctor to identify witnesses to the allegations of the complaint. They will also ask for information about the doctor’s insurance policy. Interrogatories issued by the defendant will also ask for the identity of witnesses to the allegations of the plaintiff’s complaint such as the plaintiff’s family members. The interrogatories will also ask for information about the plaintiff’s injuries and treatment. Requests to produce documents will ask the opposing party to disclose documents that may be relevant to the case, such as pictures of the plaintiff’s injuries, and any medical records and bills.
After written discovery is complete, the parties will engage in oral discovery, during which each party will depose the other party’s witnesses. For the plaintiff, this usually involves deposing the doctor and any of the doctor’s staff that may have assisted him. A skilled plaintiff’s attorney will use depositions to develop a roadmap for cross-examining the witnesses at trial, and will also seek to elicit admissions from the witnesses that the defendant doctor was negligent.
The defendant doctor will usually depose the plaintiff if he or she is still alive, and any members of the plaintiff’ family who have knowledge of the plaintiff’s injuries or death.
Once depositions of the lay witnesses are complete, the parties will disclose the names of the expert witnesses that they have hired to give opinions at trial. Commonly, a plaintiff will retain an expert in the same field of medicine as the defendant doctor, so that the expert can testify exactly what the doctor did wrong or failed to do. A plaintiff may also retain an expert witness to testify about the nature and extent of his injuries. In cases concerning catastrophic injuries, the plaintiff may hire life care planner to testify about the medical care that the plaintiff will need in the future, and the cost of that care.