Illinois Medical Malpractice Laws & Statutory Rules

A look at statutory lawsuit filing deadlines, the "affidavit of merit" requirement, and other state laws that could affect an Illinois medical malpractice case.

If a patient suffers harm as a result of negligent medical treatment in Illinois, the doctor, hospital, or other medical provider may be liable for medical malpractice. In this article, we'll discuss key state laws that will likely affect a medical malpractice case in Illinois, including the "statute of limitations" deadline for filing the lawsuit, and the current state of "caps" on damages in Illinois medical malpractice cases. Read on for the details.

Illinois Statute of Limitations for Medical Malpractice Lawsuits

A “statute of limitations” is a law that sets a time limit on the right to file a lawsuit. There are different deadlines for different kinds of cases.

In Illinois, you must start a medical malpractice lawsuit against a doctor or other health care provider within two years of when you became aware of, or should have become aware of, the provider's negligent action (or inaction) in connection with your medical treatment. That's the standard filing deadline in Illinois. But the state also follows a so-called "statute of repose," which says that regardless of when you discover that you were harmed by medical negligence, if more than four years have passed since the malpractice occurred, you're barred from filing a lawsuit against the provider.

In other words, if you discover the malpractice injury more than four years after the occurrence of the conduct that caused it, your lawsuit will be thrown out. What's more, if you sue more than two years after you discover an injury that might have been caused by medical malpractice, or more than two years after you should have (in the eyes of the law anyway) figured out that the injury might have been caused by malpractice, your lawsuit will be thrown out.

There are complex rules for patients who were under the age of 18 or subject to a legal disability when the alleged malpractice occurred. Talk to an Illinois attorney about these exceptions if you think they might apply to your situation.

The details of the Illinois medical malpractice statute of limitations are spelled out at 735 ILCS 5/13-212.

The Illinois "Affidavit of Merit" Requirement

In Illinois, according to 735 ILCS 5/2-622, a medical malpractice plaintiff must file, alongside the lawsuit, an affidavit declaring that the "affiant" (usually the plaintiff's attorney) has reviewed the facts of the case with a qualified health care professional who:

  • is knowledgeable about the medical issues related to the case
  • practices or teaches (or has recently practiced or taught) in the same area of medicine that pertains to the plaintiff's case, and
  • is properly qualified in terms of experience and competence.

The affiant must further declare that, after reviewing the plaintiff's case (treatment records and other evidence), the consulted health care professional has determined that "there is a reasonable and meritorious cause" for the filing of the medical malpractice lawsuit. This determination must be included in a written report, authored by the health care professional, and attached to the initial lawsuit doucmentation. 

If the plaintiff's attorney is unable to get the required consultation because the statute of limitations filing deadline is approaching, the affidavit must state this at the time of the filing of the lawsuit, and a second, compliant affidavit and health care professional's report must be filed with the court no more than 90 days after the filing of the lawsuit.

This is a somewhat simplified explanation of the "affidavit of merit" requirement. For details, talk to an attorney or dive into the relevant statute at 735 ILCS 5/2-622.

No Medical Malpractice Damage Caps in Illinois After 2010 Decison

Illinois has a law on the books that sets a cap on the amount of compensation that a medical malpractice plaintiff can recover in the way of non-economic damages (including "pain and suffering") after a successful lawsuit. But in 2010, the Illinois Supreme Court ruled that this law was unconstitutional, so there are currently no statutory caps on medical malpractice damages in effect in Illinois.

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