When a child suffers a serious injury in labor or delivery, it is heartbreaking for parents. Many birth injuries appear to be preventable, which can make a tragic situation even worse. If it appears that the birth injury was caused by negligence or malpractice on the part of a medical professional, then it will be necessary to file a claim for medical malpractice. Medical malpractice claims, like every cause of action, have a statute of limitations. A claim cannot be filed after the statute of limitations has passed. Considering what is at stake in a case involving a birth injury, it is crucial to understand the statute of limitations. This article will discuss the statute of limitations for medical malpractice in general, as well as birth injuries specifically.
Statute of Limitations in Medical Malpractice
There are three main laws that discuss the statutes of limitations for medical malpractice and birth injuries. According to 735 Ill. Comp. Stat. Ann. § 5/13-212(a), any lawsuit against a doctor, dentist, nurse or hospital in Illinois must be filed within two years from the date of the injury, or from the date that the injured person reasonably should have known about the injury. This statute states further that in “no event shall such action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death.”
Therefore, a person has two years from the date of their injury, or the date they should have known about the injury, to sue a medical professional or hospital for malpractice. And regardless of when a person discovers the injury, they have no more than four years from the injury to bring a lawsuit. Additionally, there is only a one year statute of limitations against state or county governmental agencies.
Statute of Limitations in Birth Injuries
However, in the case of birth injuries, the statute of limitations is eight years in Illinois. According to 735 Ill. Comp. Stat. Ann. § 5/13-212(b), a medical malpractice action cannot “be brought more than 8 years . . . where the person entitled to bring the action was, at the time the cause of action accrued, under the age of 18 years; provided, however, that in no event may the cause of action be brought after the person's 22nd birthday.” Anytime a minor is injured by medical malpractice, they have at least eight years in which to file suit. Therefore, any child suffering injuries due to complications in labor or delivery has at least eight years to file suit.
Statute of Limitations For People With Disabilities
Unfortunately, it is common for birth injuries, such as cerebral palsy, to cause mental disabilities in addition to physical injury. 735 Ill. Comp. Stat. Ann. § 5/13-211(c) states that if a person “under a legal disability other than being under the age of 18 years, then the period of limitations does not begin to run until the disability is removed.” Therefore, if negligence on the part of a medical professional leads to mental incompetence, the statute of limitations does not begin, or is “tolled”, until the disability is removed. As a practical matter, if a minor is mentally incompetent, their claim cannot be barred by the statute of limitations unless their disability is cured.
In sum, a person who is injured by medical malpractice has at least two and as many as four years to file suit. A child suffering birth injuries has eight years in which to file suit. However, if birth injuries led to mental disability, the statute of limitations is tolled until the disability is removed.
*article courtesy of Salvi & Maher, LLC.