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Statute of Limitations in Medical Malpractice Cases

A lot of people are confused about the statute of limitations laws in medical malpractice cases.  It's not surprising because the statute of limitations is confusing.  In Illinois, if you are suing a physician, dentist, registered nurse or hospital for malpractice, you have to do so within 2 years of when you knew, or should have known, of the existence of the injury or death, for which you are seeking damages.  But, in no case can you bring such an action more than 4 years after the date on which the malpractice occurred.  I'm paraphrasing.  See Section 13-212 of the Code of Civil Procedure for the complete statute.  735 ILCS 5/13-212.

So what does this mean?  It's easier to understand if you approach it in pieces.  As a general rule, in personal injury actions (malpractice is a form of personal injury), you have 2 years to file a lawsuit for your injuries.  People who have been hit by a car pretty much know that someone was negligent that day and that they may have been hurt, so counting out 2 years from the day of the accident to find out the day that the statute of limitations expires is easy.  But what if your doctor misdiagnosed you?  Most people don't know that happened until someone diagnoses them properly.  By then, time has passed.  Your 2 year clock may start to run on the day that you were properly diagnosed.  (Notice I said 'may start to run,' not will start to run.  There are many shades of grey in this area and each case is fact specific.)  But what if you don't know that 5 years ago your doctor misdiagnosed your illness?  Can you still sue?  Most likely not.  That's where the 'no more than 4 years' comes in.  That's the outside cut-off.  (Generally.  In a future blog post I'll tell you about an exception to this rule that I won.)

 But... that is not true for children.  Children have an outside limit of 8 years.  That means that an injury that occurs to a 1-year-old must be filed, at the latest, by the time that child turns 9.  That is true, even though children who are 9 years of age can't hire a lawyer - an adult has to do that for them.  (I personally disagree with this law, but that is what it is.)  There is another 'but' in this law that applies to children.  If the 8 years counts out after their 22nd birthday, they don't have 8 years.  They have to bring their lawsuit by their 22nd birthday.  In other words, a 17-year-old must sue by their 22nd birthday.  A 15-year-old must sue by their 22nd birthday.

But.... if the injured person is disabled at the time of the negligence, there is no clock ticking out 2 years, 4 years, or 8 years.  That clock doesn't begin its countdown until the 'disability' has been removed, e.g., the person is no longer disabled.  Any person who meets the legal definition of disabled in this context generally is disabled for life and thus the statute of limitations does not expire, in their lifetime.  For this exception to apply, the disability must be a legal disability, which is a cognitive disability.  In the medical malpractice arena, if your disability is you have kidney failure and you are on dialysis - assuming you still have all of your faculties and are able to make your own decisions, this exception does not apply to you.  If, however, the disabled person is "entirely without understanding or capacity to make or communicate decisions regarding his person and totally unable to manage his estate or affairs," "where a patient cannot communicate, cannot comprehend his rights, or understand the nature of the act giving rise to his injuries," these are people who have a legal disability.  These people do not have a statutes running down their time to file a lawsuit and their families can hire a lawyer to handle the case.

There are several more exceptions of various sorts in this area of statute of limitations in medical malpractice cases.  Some apply to who is being sued, which may make the time to sue even shorter.  Others apply to what the defendant did, possibly making the time to sue longer.  

So what do you do?  My advice to anyone who thinks they may have a medical malpractice lawsuit is to call an experienced malpractice lawer sooner rather than later.  By that I mean, as soon as possible.  I have had to tell far too many people that I can't help them because the statute of limitations has passed.  Often, the person waited because they were dealing with the physical or emotional or financial consequences of what happened to them and thought they had time.  Also, evaluating these kinds of cases takes time.  We lawyers need to review the medical records, talk to experts, figure out if there is a case, and if there is one, who is responsible.  Every malpractice lawyer I know will talk to you about a possible case for free.  So if you think you may have a case, call a lawyer and ask.

2 Comments

I was misdiagnosed with breast cancer. I had mammogram and ultrasound 10/2009, was told it was a cyst and told me to come back in a year for next mammogram. 9 months later, after watching it grow to very large, I took myself back to a different dr who sent me for tests and found it WAS cancer. I was unemployed and had to ask Medicaid for help so I could survive this. They were very gracious and allowed to help me financially. During my 8 months of surgery's and chemo, I tried 2 different lawyers to help me, both taking a total of 8 more months to decided it was too tough of a case to prove. One month after chemo, I had no choice but to find some sort of employment as my personal bills were piling up, (unemployment had exhausted while in chemo). I believed the lawyers and did not pursue any lawsuit. Now, 3 years since last chemo (multiple surgeries, last being 2 months ago, and living with chemo caused neuropathy which is taking my ability to work away) I got angry and went to that hospital that misdiagnosed me. I confronted them with my story. They looked into it, and admitted they had misdiagnosed me, not only verbally, but in a letter I received last week. Probably because they knew the statute of limitations had passed. I have been nothing short of being severely depressed since my actual diagnosis which is now even worse. I have a strong family history of breast cancer, which the hospital that misdiagnosed me knew. I am suffering from the chemo caused neuropathy in my feet every minute of the day and still being treated for it.
I am crushed that did not know I could have had a case, was led to believe I could not win, so I gave up. Now that I have a written confession, I am livid. And all it took was ME to get this information. I seem to have lost all around.
Cant I do anything to make them pay for the loss of my breasts and this ongoing neuropathy which will be with me for the rest of my life? I am 51, divorced from the love of my life just a few months before the real DX, and then he unexpectedly died while I was going thru chemo. No financial stability. The story goes on, but those are the facts. Thank you for reading my story
Carol Fauske
970-397-8742
Milliken Colorado

Carol,

I have read your story and posted it. I don't know why the two lawyers you contacted thought the case was too difficult to prove and I don't want to guess. You do sound like both a fighter and a survivor. Hopefully these traits will help you conquer the challenges live has given you. I wish you the best.

Marion Morawicz

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Frequently Asked Questions about Medical Malpractice

Q: What is medical malpractice?

A: Medical malpractice is negligence committed by a professional health care provider, such as a doctor, nurse, dentist, technician, hospital worker or hospital, whose treatment of a patient departs from a standard of care met by those with similar training and experience, resulting in harm to a patient...

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