The statute of limitations can bar an otherwise viable medical malpractice claim because it was filed more than two years after the negligent act, but there are exceptions. A recent change to the discovery rules allows a claim even if the two-year statute of limitations has run.
Statute of Limitations
The statute of limitations sets a time limit by which a patient must sue in order to avoid his or her claim from being time-barred. In Illinois, this time limit is generally two years from the date of the negligent act.
In some situations, the clock does not start running immediately. The discovery rule gives victims of medical malpractice a little more time to file a medical malpractice lawsuit so that a viable claim can still survive after the standard statute of limitations has expired. The discovery rule tolls the statute of limitations so that the clock does not start running on the statute of limitations until the victim could have reasonably discovered the mistake that caused the harm.
Illinois law allows for certain exceptions to the general two-year statute of limitations for personal in personal injury cases. Some exceptions include:
In some instances, the statute of limitation does not begin to tick down until a disability is removed. A person may be considered “disabled” for purposes such as being a minor, bankrupt or incompetent. In these situations, the statute of limitations begins to run after the disability ends.
Another exception to the statute of limitations is fraudulent concealment. This occurs when a defendant fraudulently conceals the plaintiff’s cause of action. In these situations, the plaintiff has five years from the discovery of a cause of action to bring forth the claim.
Malpractice lawyers can explain that there may be equitable arguments against imposing the statute of limitations so that the victim can still bring forth his or her case. These equitable considerations may include cases in which:
- The defendant actively misled the victim
- The victim has been prevented from asserting his or her rights in some extraordinary fashion
- The victim mistakenly asserted his or her rights in the wrong forum
Malpractice lawyers can help calculate the length of time that a victim has to file a lawsuit and describe exceptions that might apply in a certain situation.