Illinois Medical Malpractice Laws
A Forbes Magazine article recently reported that less than 20% of the two hundred thousand victims injured by medical malpractice in the United States pursue claims for their injuries. Further, less than 20% of the injured parties who did file a claim received any payment to compensate for their injuries. Efforts to curtail malpractice cases in Illinois and throughout the country are a likely cause of these low numbers, but the reality is that a person who suffers injuries due to medical negligence has a well-established right to recover a monetary award to compensate for those injuries. The starting point for this recovery is understanding the basics of Illinois medical malpractice laws.
Like all states, the rules and procedures that apply to medical malpractice cases are convoluted, confusing, and ever-changing. This summary applies to the current state of those rules and procedures at the time of its writing. Please consult with qualified legal counsel for more information about how those laws will affect your prospective malpractice case.
The Statute of Limitations Applicable to Illinois Medical Malpractice Lawsuit Filings
The Illinois statute of limitations establishes hard deadlines for filing your medical malpractice case. In Illinois, an individual claimant must file a medical malpractice lawsuit no later than two years from the date of an incident causing injury or two years from the date on which the patient should have reasonably discovered the harms caused by medical care.
The latter of these two deadlines often comes into play with injuries that occur during surgery. A surgeon might leave an instrument or sponge in a surgical cavity, for example, and the aggrieved patient might start to experience pain or discomfort two or three years after the initial surgery. The filing deadline for this event will run from the date on which you first feel that pain or discomfort. An absolute four-year deadline runs over all medical malpractice injuries, regardless of when the injury was first discovered. Finally, minors (i.e. persons younger than 18) are given a longer deadline of the earlier of eight years after the injury occurs, or their 22nd birthday, whichever comes first.
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Expert Testimony Requirements under Illinois Medical Malpractice Statutes
Illinois law requires a medical malpractice victim or his attorney to file a “certificate of merit” within ninety days of the filing date of the malpractice complaint to verify the validity of the malpractice claims. This certificate must verify that an expert with at least six years of experience in the medical field that is at issue in the case has reviewed the complaint to confirm its validity. An injured party’s failure to file this certificate will jeopardize the statute of limitations aspects of the case, and that failure can ultimately result in the case’s being dismissed.
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Comparative Negligence, Caps on Damages, and the Collateral Source Rule under Illinois Medical Malpractice Law
Illinois has adopted a negligence standard which permits joint and several liability-based claims cases, per Illinois, Revised Statutes Chapter 735, Section 5.2-117. This standard plays a significant role in potentially filed medical malpractice cases, for example, whereby an injured party fails to follow up on required medical care or does not adhere to a treating physician’s instructions. Further, Illinois does not allow punitive damages in medical malpractice cases.
Until 2010, Illinois law limited the amount that a malpractice victim could recover for noneconomic damages, including damages for pain and suffering. In that year, the Illinois Supreme Court determined that this Illinois law was unconstitutional and as a result, Illinois malpractice victims are not subject to those limits. The Illinois legislature continues to debate caps on malpractice damages, and the law remains in a state of flux.
The Illinois collateral source rule remains pertinent to a malpractice victim’s right to recover damages. Where an insurance company or hospital is part of the malpractice case, a defendant that is deemed liable for malpractice can apply for a reduction in the damages award within thirty days of the date of the award. If the application is accepted, the victim’s award will be reduced by 50% of any lost wages or disability income that was paid to the injured party by another “collateral” source. Judgments will not be reduced by more than 50% under this rule.
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Having Legal Counsel Involved from the Beginning of Any Medical Malpractice Action in Illinois Is Encouraged
Since at least 2010, medical malpractice laws in the-the state of Illinois have shifted toward favoring injured patients. Nonetheless, the state’s lawmakers and the physician and insurance defense bar are actively attempting to change those laws to limit the victim’s ability to recover medical malpractice damages. If you have suffered an injury while receiving medical treatments, you should consult with a knowledgeable attorney as soon as is possible to preserve all critical facts and evidence of your medical malpractice claims case in Illinois.