Illinois Medical Malpractice Laws

If you're filing an Illinois medical malpractice lawsuit, understand the statute of limitations and the "affidavit of merit" requirement for these kinds of cases.

By , J.D. · University of San Francisco School of Law

Before you decide to file a medical malpractice lawsuit in Illinois, be aware that these cases are notoriously complex. Strict procedural rules need to be obeyed, volumes of medical records need to be sifted through and analyzed, and the plaintiff's "burden of proof" is substantial. In this article, we'll take a look at the Illinois statute of limitations deadline for medical malpractice lawsuits, the state's "affidavit of merit" requirement, and the current legal status of the Illinois cap on medical malpractice damages.

The Illinois Medical Malpractice Statute of Limitations

If you're thinking about filing a medical malpractice lawsuit in Illinois, the first law you need to be aware of is the statute of limitations, which puts a strict limit on the amount of time you have to get your case started in the state's civil court system.

Like a lot of states, Illinois has a statute of limitations that specifically applies to medical malpractice cases. That law says these kinds of lawsuits must be filed within two years of the date on which the prospective plaintiff actually knew, "or through the use of reasonable diligence should have known," about the injury that was caused by the health care professional's malpractice.

The Illinois medical malpractice statute of limitations, which you can find at 735 ILCS section 5/13-212(a), goes on to set a larger deadline for cases where the prospective plaintiff's injury is not discovered right away; it says that "in no event" shall a medical malpractice lawsuit be brought more than four years after the date on which the underlying medical error occurred.

In Illinois, there is also a specific filing deadline for a lawsuit filed by (or on behalf of) a medical malpractice plaintiff who is under the age of 18 at the time they are harmed. These cases must be filed within eight years of the date on which the underlying malpractice occurred, but in no event can such a case be brought beyond the injured person's twenty-second birthday.

If you wait too long to get your lawsuit started—you try to file it after the statutory time limit has already passed, in other words—the court will almost certainly refuse to consider your claim (unless a rare exception acts to extend the deadline). That's why it's so important to comply with the statute of limitations in a medical malpractice case.

The "Affidavit of Merit" in Illinois Medical Malpractice Cases

An Illinois medical malpractice plaintiff must attach to the complaint (the document that starts the lawsuit) an affidavit declaring that the plaintiff (or the plaintiff's attorney) has consulted a health care professional who:

  • is knowledgeable regarding the medical issues inherent to the case
  • currently practices or teaches (or has practiced or taught within the past six years) in the area of medicine pertinent to the plaintiff's case, and
  • has experience and competence in the lawsuit's subject matter.

The affidavit must also include a written report from the consulted health professional, stating that "there is a reasonable and meritorious cause" for the lawsuit.

A few more notes on the Illinois "affidavit of merit" requirement:

  • If the plaintiff is unable to get the required consultation with a qualified health care professional because of the looming statute of limitations filing deadline, the affidavit and accompanying documentation need to be filed within 90 days after the filing of the lawsuit.
  • Failure to file a compliant affidavit will be grounds for dismissal of the medical malpractice lawsuit.
This is a simplified explanation of the "affidavit of merit" requirement. Check out the full details in the official Illinois code (the "Illinois Compiled Statutes") at 735 ILCS section 5/2-622.

Does Illinois Cap Medical Malpractice Damages?

Prior to 2010, the clear answer to this question was "yes." Like a lot of states, Illinois passed a law that put a limit or "cap" on how much a plaintiff could receive in the way of non-economic damages after a successful medical malpractice lawsuit. Illinois had in place a $500,000 cap on non-economic damages for cases against a negligent doctor or other health care professional, and a $1 million cap for lawsuits against a hospital or other health care facility.

But this cap was declared unconstitutional by the Illinois Supreme Court in the 2010 case of Lebron v. Gottlieb Memorial Hospital, and the statute providing for the limits on damages was eventually repealed. So, for any medical malpractice case filed after that decision, there is no cap of any kind on damages in medical malpractice cases.

You may be wondering, what are non-economic damages? They represent compensation for the kinds of more subjective losses that typically aren't easy to quantify by a dollar figure. Non-economic damages include compensation for pain and suffering, loss of enjoyment, anxiety, lost companionship, scarring, disfigurement, and other negative effects of the plaintiff's injuries.

Economic damages were never capped under Illinois law. This category of damages includes reimbursement and payment of past and future medical expenses, reimbursement of lost income, payment for diminished ability to earn a living, and any other financial losses stemming from the medical malpractice.

This article provides a brief summary of some of the Illinois laws that any medical malpractice plaintiff needs to have in mind. If you've got questions about how the state's laws will affect your potential situation, an experienced Illinois medical malpractice attorney will have the answers.

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