Statute of Limitations vs. Statute of Repose in Illinois Malpractice Cases

 Posted on December 00, 0000 in Medical Malpractice

An Illinois appeals court has ruled that families of plaintiffs who die with a pending medical malpractice lawsuit can add a wrongful death claim to the lawsuit. As one might expect, such an addition is possible if the death is alleged to be related to the action in question in the original malpractice suit. The case was heard by the three-judge panel, and involved an Illinois woman who was being treated at the University of Chicago Medical Center and several of its affiliates, as well as two other medical centers, between the years 2007 through July 2009. In 2011, the woman filed a lawsuit against all parties, alleging that they failed to diagnose her condition as central nervous system lymphoma. The filing of the lawsuit was within the two-year statute of limitations, as well as the four-year statute of repose required by the state of Illinois.

Filing Limitations

The statute of limitations provides the permitted amount of time from when a party was injured until the time they file their claim. The countdown begins once the injury has occurred. A statute of repose is the amount of time a person has to file a claim upon completion of the act that led to the injury rather than the time at which the injury occurred. That clock begins once the allegedly negligent act has been completed.

The woman died in November 2013, which was four months past the four-year statute of repose. In March 2014, the trial court allowed the executor of the victim’s estate to file an amended complaint of wrongful death.

The defendants in the lawsuit filed motions to dismiss the wrongful death claims, arguing that the four-year statute of repose had expired. The trial court agreed and dismissed the claim. The appeals court disagreed, reinstating the wrongful death claim, and has sent the case back to the lower court for trial.

A New Cause of Action

In their decision, the judges cited Illinois Wrongful Death Act, as well as previous cases heard before both the state’s supreme court and lower courts.

The Illinois Supreme Court has previously ruled that the statute of limitation clock does not start ticking until the victim dies from the condition related to the the malpractice action. The justices ruled that, “The ‘injury’ which opens the door to initiation of a personal injury suit is not the same injury’ which opens the door to a wrongful death suit.”

If you have lost a loved one as the result of negligence of a medical professional, contact an experienced Orland Park medical malpractice attorney to find out what legal recourse you may have against the responsible parties for your family’s loss. Call 708-966-2408 for a free consultation today.

Sources:

http://www.illinoiscourts.gov/Opinions/AppellateCourt/2016/1stDistrict/1143189.pdf

http://www.ilga.gov/legislation/ilcs/ilcs4.asp?DocName=073500050HArt.+XIII&ActID=2017&ChapterID=56&SeqStart=100300000&SeqEnd=106100000

http://www.illinoiscourts.gov/circuitcourt/civiljuryinstructions/31.00.pdf