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.

Updated by , MSLIS · Long Island University

If you have suffered harm as a result of negligent medical treatment in Illinois, the doctor, hospital, or other medical provider could be liable for medical malpractice. In this article, we'll discuss some important state laws that will likely affect a medical malpractice lawsuit in Illinois, including the deadline for filing the claim, the "affidavit of merit" requirement, and the current state of damage "caps" in Illinois medical malpractice cases. Read on for the details.

Illinois's 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 types of cases, but the deadlines are always strict. And try to file the lawsuit after the time limit passes, the court will almost certainly throw out your case. That's why it's so important to understand the applicable statute of limitations—and to abide by it.

In Illinois, you must file a medical malpractice lawsuit against a doctor, hospital, or other health care provider within two years of when you knew, or reasonably should have known, of the provider's negligent action (or inaction) in connection with your medical treatment. But, under what's known as a "statute of repose," the law also 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 date of the conduct that caused it and then try to file a claim, 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 special rules for patients who were younger than 18 years of age when the alleged malpractice occurred. If that's the case, the lawsuit must be filed within eight years of the injury, but in no event can the case be brought later than the person's 22nd birthday.

(735 ILCS 5/13-212 (2022).)

The "Affidavit of Merit" Requirement in Illinois Medical Malpractice Cases

In Illinois, alongside the complaint that starts the lawsuit, a medical malpractice plaintiff must also file 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 practiced or taught within the past six years) in the same area of medicine that is at issue in the plaintiff's case, and
  • is qualified in terms of experience and competence.

The affidavit must also state that, after reviewing the patient's medical records and other evidence, the consulted health care professional has determined that "there is a reasonable and meritorious cause" for the plaintiff to file 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 documentation.

If the plaintiff 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.

Note that failure to file an affidavit of merit will be grounds for the court to dismiss the lawsuit.

This is a somewhat simplified explanation of the "affidavit of merit" requirement. For more details, talk to a qualified medical malpractice attorney, or read the law at 735 ILCS 5/2-622.

Medical Malpractice Damage Caps in Illinois Ruled Unconstitutional

As part of the state's broader tort reform efforts, Illinois legislators passed a law that capped the amount of noneconomic damages that a medical malpractice plaintiff could recover in a successful lawsuit. Noneconomic damages include compensation for intangible losses, such as pain and suffering, anxiety, disability, and disfigurement. But in 2010, the Illinois Supreme Court ruled that this law was unconstitutional and the damage-cap statute was eventually repealed. (Lebron v. Gottlieb Memorial Hospital, 237 Ill.2d 217 (2010).)

Economic damages, on the other hand, were never subject to the state's statutory damage cap. Economic damages can include compensation for lost income and earning capacity, medical treatment for injuries resulting from the malpractice (past and future), and other financial losses caused by the health care provider's error.

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