One of our practice areas here at Costa Ivone, LLC, is medical malpractice claims. Medical malpractice occurs when a patient is injured because a doctor, hospital, or other healthcare provider failed to abide by the standard of care that applies in their field of medicine. Medical malpractice claims are among the most complicated personal injury claims in Illinois, so here is what you need to know about medical malpractice in Illinois.
Medical Malpractice Statue of Limitations in Illinois
As we discussed in our April post about the statutes of limitations in Illinois for personal injury lawsuits, the statute of limitations for medical malpractice claims in Illinois is two years. This two-year time limit starts to run when a person (1) knows or (2) should have known, through the use of reasonable diligence, that he or she is injured, or when he or she (3) received written notice of the injury.
Illinois has another time limit for medical malpractice claims. Imagine that you discover you have been injured by medical malpractice three years after the malpractice occurs, and you couldn’t have possibly discovered it sooner. Do you still have two years to file a lawsuit?
Normally, no. In addition to the two-year statute of limitations, Illinois also imposes a four-year statute of repose. The statute of repose expires four years after the act, omission, or occurrence that caused a medical malpractice injury. So, in the example above, you normally have only one year after discovering your injury to sue.
Keep in mind that minors are treated differently under the medical malpractice statutes of limitations and repose. Minors have eight years to file a lawsuit for medical malpractice, or until their 22nd birthday, whichever is first.
How Do You Prove a Medical Malpractice Claim?
To prove a medical malpractice claim, you will virtually always have to rely on expert testimony. An expert witness is someone who is qualified as an expert by knowledge, skill, experience, training, or education. Expert witnesses scientific, technical, or other specialized knowledge to help the jury decide a case.
That’s important in most medical malpractice claims, because what needs to be proven—that a doctor, hospital, or other healthcare provider breached the standard of care—isn’t something that most jurors will be able to figure out on their own.
In addition to introducing expert testimony during trial, Illinois law also requires that the plaintiff attach an affidavit to his or her complaint. In the affidavit, the plaintiff or his or her medical malpractice attorney must swear that he or she consulted with a health professional who determined in a written report, after reviewing the medical record and other relevant material, that there is a “reasonable and meritorious cause” for the lawsuit. The written report must also be attached to the complaint.
Are Medical Malpractice Damages Limited in Illinois?
In recent decades, many states have changed their laws to cap damages in medical malpractice and other personal injury lawsuits. The Illinois General Assembly has tried to do the same, but both of its past efforts were struck down by the Illinois Supreme Court.
In 1995, the General Assembly enacted P.A. 89-7. Among other changes, that act limited non-economic damages (like damages for pain and suffering) to $500,000. In Best v. Taylor Machine Works, the Illinois Supreme Court held that P.A. 89-7’s cap on non-economic damages violated the Illinois Constitution’s ban on special legislation and the separation of powers.
A decade later, the General Assembly enacted P.A. 94-677, which limited non-economic damages in medical malpractice lawsuits to $500,000 against a doctor or $1,000,000 against a hospital. Relying on its analysis in Best, the Supreme Court of Illinois struck down this limitation in Lebron v. Gottlieb Memorial Hospital, finding that it, too, violated the separation of powers.
(One type of damages is limited in medical malpractice lawsuits. Under 735 ILCS 5/2-1115, punitive damages—damages meant to punish the defendant, rather than compensate the plaintiff—are not allowed.)
In summary, plaintiffs in Illinois medical malpractice lawsuits can recover whatever economic or non-economic damages they can prove.
What to Do if You’ve Been Injured by Medical Malpractice in Illinois
If you believe you’ve been injured by medical malpractice, your first step should be to seek treatment for any ongoing injuries. Your second step should be to contact the knowledgeable attorneys at Costa Ivone, LLC, to help you recover what you’re legally entitled to.
Costa Ivone, LLC
311 N Aberdeen St #100B
Chicago, IL 60607