Medical Malpractice

Statutory Requirements in Medical Malpractice Cases

If you believe you were the victim of medical negligence, the best thing you can do is consult a medical malpractice attorney. Illinois law requires you to take certain steps to pursue a medical malpractice lawsuit. You can’t dive right in. Our team at Staver Accident Injury Lawyers, P.C. are well-versed in the statutory requirements for medical malpractice cases, so you don’t have to be. We can guide you through the process of properly filing a claim and filing hard for compensation. Call us at (312) 236-2900 or use our online form to schedule your free initial consultation.

The Statute of Limitations

Illinois limits how long you have to file a medical malpractice lawsuit. You must file your complaint within two years. But the problem is that you might not know your doctor was negligent the day it happened. That’s why the clock doesn’t always start the day of the negligence. Instead, Illinois starts the clock when you know about or should know about your injury. Once you have reason to believe you were the victim of malpractice, the statute of limitations has started, and you have two years to file. Overall, the law gives you four years from the date the negligence occurred to file a lawsuit.

The Statute of Limitations for Minors

If you were under 18 years old when the medical malpractice happened, then you have a total of eight years and up to your 22nd birthday to file a lawsuit. Your time limit is determined by which comes first, eight years from the date of the negligence or your 22nd birthday.

The Statute of Limitations for People with a Legal Disability

If you are under a legal disability at the time of the malpractice, like being deemed mentally incompetent, then the statute of limitations doesn’t begin to run until that disability is removed. If you become under a legal disability after the negligence, then the statute of limitations pauses until the disability is removed.

A Medical Professional Consultation

Illinois requires you to get an Affidavit of Merit before you file a medical malpractice lawsuit. By working with a medical malpractice attorney, you can connect with a medical expert in the same field as the doctor who was negligent. This expert can review your medical records and any other evidence we have to determine whether you have a valid claim or not.

The affidavit shows that you consulted another medical professional who:

  • Knows the relevant issues of your case;
  • Practices, teaches, or has practiced or taught within the last six years in the same area of medicine relevant to your case; and
  • Is qualified by experience to speak to the issue.

In the affidavit, the medical expert states that they’ve reviewed your records and other evidence, and they believe you have a reasonable and meritorious claim. The expert must attach to the affidavit a written report that identifies you as the plaintiff and provides their reasons for why you have a valid reason to file a lawsuit.

What If You Don’t Have Time to Get an Expert Opinion?

If you weren’t able to get a consultation before the statute of limitations would run out, Illinois law lets you file your lawsuit. You then have 90 days from the date you filed your complaint to get a consultation and file the affidavit with the court. Then, the defendant has 30 days after the date they were served with the affidavit to respond.

What If You Don’t File an Affidavit?

If you don’t file an affidavit with the complaint or within 90 days, then the defendant can file a motion to dismiss. Under Illinois law, failure to file this information

You Might Need More Than One Affidavit

If you claim that two or more defendants are responsible for medical malpractice, then you need a consultation regarding each defendant’s actions. You must file a separate affidavit and written report for each defendant named in your complaint. In some cases, you might ask the same expert to provide an opinion on multiple defendants. But if the defendants work in different areas of medicine, then it might be best to consult different medical professionals.

When You Argue “Res Ipsa Loquitur”

The doctrine of res ipsa loquitur means negligence is inferred from the circumstances. Instead of having direct evidence of a professional or facility’s negligence, you might use circumstantial evidence to prove your injuries wouldn’t have happened without negligence. You have to ask the jury to infer the defendant was negligent based on what happened and the fact that there is no other plausible explanation for your injuries.

If you plan to rely on res ipsa loquitur, your affidavit and written report have to specify that the medical professional reviewing your case is relying on this doctrine and, in their opinion, negligence occurred during your medical treatment.

When You Argue “Failure to Get Informed Consent”

One way a doctor can be negligent is if they fail to inform you of the potential consequences of a procedure. Medical professionals are supposed to get informed consent. You must be told the risks before you agree to treatment.

If you intend to argue that the doctor failed to inform you of the risks, then in the affidavit, the health care professional has to say that a reasonable health professional would have informed you of the consequences of the procedure.

Talk with Us About the Laws for Medical Malpractice Cases

There are statutory requirements in medical malpractice cases in Illinois. To pursue compensation, you benefit from working with a lawyer who knows these requirements and can make sure you complete each step. If you fail to meet the requirements for a medical malpractice lawsuit, the defendant could file and win a motion to dismiss. Your claim might be over, or you might have to start all over again, which wastes precious time.

To talk with a medical malpractice attorney about the legal requirements for a medical negligence lawsuit, call Staver Accident Injury Lawyers, P.C. at (312) 236-2900. Or you can use our online form to request a free consultation.

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(312) 236-2900
(312) 236-2900