An individual who is injured due to a health care provider's error can seek compensation for their injury's financial and psychological impacts through the Illinois medical malpractice claims process. This generally involves filing a claim against the provider's medical malpractice insurance policy. If the provider fails to pay the claim, it can also be filed in court as a medical malpractice lawsuit. A judge or jury would then determine whether malpractice occurred and—if so—how much compensation is owed.
Medical malpractice claims are a type of personal injury claim. In Illinois, the maximum amount of time a claimant has to file a personal injury claim in court is two years from the date of the injury. This is known as the statute of limitations. However, medical malpractice claims often present complexities not experienced in claims resulting from other types of personal injury accidents, such as car accidents or slip-and-falls.
One of those complexities is that the claimant is not necessarily immediately aware that they have been injured. Additional time often passes after the injury exhibits symptoms and before the claimant knows that an error caused the injury. These complexities are reflected in the variations of the statute of limitations in this type of claim.
When the Two-Year Statute of Limitations Applies
Claims involving adults over 18 who were injured or died due to a medical error are generally two years, the same as other types of personal injury claims. This includes cases where the injury and its cause are immediately apparent.
When Medical Malpractice Claimants Have Four Years to File Their Claim
If there is a delay in discovering the injury or the error that caused it, Illinois law allows the claimants additional time to file their claim in court. Certain types of injuries and their causes are not immediately apparent. For example, suppose an error occurred during surgery, and the doctor was unaware that they had committed a mistake that resulted in the patient's injury. In that case, a significant amount of time can pass before a series of unexplained health issues are traced back to that surgical error.
When the Statute of Limitations on an Illinois Medical Malpractice Claim is Eight Years
When a very young child is injured due to a medical error, they often do not have the developmental ability to tell their parents or legal guardians they have been injured. The injury will not always be discovered until they have developed enough to begin exhibiting symptoms that indicate that there is a problem. Children under 18 are not permitted to file a medical malpractice claim on their own behalf. Instead, their parents or legal guardians must file the claim. Illinois gives the parents or legal guardians up to eight years to file a claim seeking compensation for the expenses and impacts of an injury to a child.
Is There a 22-Year Statute of Limitations on Some Medical Malpractice Claims?
While the parents or legal guardians of a child injured as a result of a medical error can elect to file a medical malpractice claim on the child's behalf, the child also has the option of filing a claim on their own once they reach the age of majority.
If a child injured as an infant files their own personal injury claim, the limitations clock does not begin ticking until they reach their 18th birthday. At that point, they must meet the two-year statute of limitations for Illinois personal injury claims plus the additional two years for the statute of repose, which is the additional two years granted to medical malpractice claimants who are not immediately aware of either the injury they incurred or the fact that it resulted from a medical error.
Other Instances When a Medical Malpractice Claim Can Exceed the Two-Year Statute of Limitations
Suppose an individual becomes mentally incapacitated as a result of the injury. In that case, the law provides for the tolling of the statute of limitations until the claimant is mentally able to file a claim and seek compensation for the expenses and impacts of their injury.
The Importance of Not Letting the Statute of Limitations Expire on Your Claim
The Illinois medical malpractice claims process generally begins when the claimant files a claim against the health care provider's medical malpractice insurance policy.
Medical malpractice insurance is a specialized type of professional liability insurance that provides coverage for the expenses and impacts of injuries or deaths that occur to the provider's patients as a result of a medical error. No specific law required health care providers in Illinois to purchase and possess malpractice insurance.
However, most hospitals in the state carry this insurance to protect themselves from the liability of actions taken by their staff. Most doctors are independent contractors who purchase their own medical malpractice policy as a requirement by the hospital where they have admitting privileges.
As variable as the statute of limitations is on Chicago medical malpractice claims, your claim must be filed as a lawsuit before this date passes. Letting the statute of limitations expire will usually result in losing the ability to use the court process when seeking compensation for your injuries.
If Most Medical Malpractice Claims Resolve Through a Settlement, Does It Matter?
According to research, medical errors cause around 250,000 deaths a year in the U.S., in addition to hundreds of thousands of injuries. Surveys show that around one out of every five people reports being a victim of a medical error, and one out of every three knows someone who has been the victim of a medical error. In spite of these numbers, only around 2 percent of medical errors resulting in the injury or death of a patient also result in a medical malpractice claim. Of those claims filed as lawsuits—roughly 85,000 a year—around 95 percent—settle outside of court.
Even though most medical malpractice lawsuits are settled outside of court, it is still crucial to your ability to obtain compensation to meet the statute of limitations for filing your claim in court. The legal process is a second option for seeking compensation if the insurance company refuses to compensate the claim.
Most insurance providers prefer to avoid litigation if possible, as it is costly in terms of time and effort, and they cannot control the outcome. This makes them willing to entertain settlement negotiations to resolve the claim before the expenses and uncertainties of the court process even arise.
Suppose the claimant may no longer file a lawsuit because the statute of limitations has expired on their case. In that case, refusal to pay the claim will carry no legal ramifications.
It should be noted that settlement discussions do not have to end when the lawsuit is filed but often become more serious at that point because, without a settlement that releases the at-fault provider from further legal action on the matter, the potential of litigation becomes a certainty. Settlement offers can come, and the claimant can enter a settlement agreement with the at-fault provider's insurer at any time during the process.
Affidavit of Merit: A Time-Consuming Challenge of Chicago Medical Malpractice Claims
While the statute of limitations can vary depending on the circumstances of the medical error leading to injury or death, there is an additional challenge to these types of claims that can take some time to deal with: the affidavit of merit. All Illinois medical malpractice claimants must include an affidavit of merit with their lawsuit when filing it in court.
Completing the information for the affidavit requires the claimant (generally through their attorney) to consult with a medical professional with experience in the area of medicine involved in the claim. The affidavit states that this medical professional, after reviewing the facts of the case, finds that a medical malpractice claim has merit.
Can Not Having the Affidavit of Merit Result in the Statute of Limitations Expiring on the Claim?
Suppose the statute of limitations is close to expiring on a medical malpractice claim, and the claimant's attorney has been unsuccessful in obtaining an affidavit of merit. In that case, the law permits the claim to be filed without it meeting the statute of limitations. However, in these cases, the plaintiffs must complete the affidavit of merit and add it to the lawsuit within 90 days after filing it.
How an Attorney Can Help Ensure that Your Claim Is Filed In Time
While all types of personal injury claims can be confusing due to the legal requirements and expectations, medical malpractice claims—with variable statutes of limitation and additional requirements—are particularly challenging. An experienced Chicago medical malpractice attorney plays a vital role in successfully resolving claims. Attorneys begin these types of cases fully aware of the challenges they present and the clock running on the claim, and the services they provide are offered with the statute of limitations in mind.
Those services include:
- Valuing the claim with consideration given not only to the out-of-pocket expenses you have incurred, but also the psychological impacts that you have experienced as a result of a medical error.
- Communicating with the at-fault party's medical malpractice insurer to protect the value of your claim and keep the focus on ensuring that you obtain enough compensation to adequately address your injury's financial and psychological impacts.
- Gathering the evidence and documentation necessary to prove to an experienced medical professional—and potentially to a judge or jury—that your injury was more than a bad outcome to a procedure.
- Relying on a network of medical professionals willing to assist the claimant by consulting with their attorney and reviewing their claim to determine if it has merit.
- Providing guidance and information so that the claimant has a better understanding of their claim's value and the medical malpractice claims process in Illinois, helping the claimant to be better positioned to make decisions about their claim that reflect their interest.
- Filing the complaint, complete with the affidavit of merit, before the statute of limitations expires.
Did you suffer an injury or lose a loved one due to a medical error? Let a personal injury attorney evaluate your case and provide more information about the Chicago medical malpractice claims process.