Timing is crucial in the law. Each brain injury attorney at our firm has counseled local residents on the important of filing lawsuits before applicable time deadlines. Each location has different rules, so it is important to understand how statutes of limitations work in your state and your specific suit.
Illinois Medical Malpractice Statute of Limitations
Much legal wrangling often takes place around these timing issues. That is because there are general requirements with many exceptions. In Illinois, the law generally requires a suit for medical malpractice to be filed within two years. However, the “clock” does not begin until “the claimant knew or reasonably should have known of the injury.” Yet, even accounting for this “discovery” rule, there is often an absolute bar of four years from the error, regardless of when the claimant discovered the problem.
Illinois medical malpractice suits involving children have different rule, though. If the child is under 18 when the action “accrued” then the limit is eight years from the act or omission-with an absolute bar at the time the minor turn’s 22.
Mentally impaired claimants have even more leeway-often able to file suit so long as the disability persists.
Considering some Illinois brain injury lawsuits are forms of medical malpractice lawsuits, it is important for local residents to be aware of these timing rules.
Brain Injury Case
The Vegas Sun recently reported on the latest developments in a brain injury suit where statutes of limitation issues were present. The family in the case alleged that their daughter suffered serious injury as a result of surgical errors. The 13-year old girl underwent heart surgery in 2006, during which she suffered an extensive brain injury. The state in that case had a very tight one year statute of limitation requirement for those cases. That limit seemingly begins upon discovery of the error. However, the family in this case did not file within a year of discovering the brain injury.
Initially, a district court judge granted the defendant’s motion for summary judgment on the grounds that the suit was time-barred. However, the state’s Supreme Court recently reversed. The court noted that when the medical team disclosed the brain injury, they did not provide any explanation as to how the injury arose. The hospital only supplied a dense 182 page set of medical records for the family’s claim for Social security benefits, while withholding parts of the medical record.
The Court went on to note that the summary judgment was improper, because the parents should be given the opportunity to show whether or not the withholding of the full record was intentional and if those withheld records would have contained information which might have delayed the filing of the suit. If the parents can show both of those things, then there may have been intentional concealment of information sufficient to allow the suit to proceed notwithstanding the statute of limitation.
The case is by no means over, but the family will be given the chance to attempt to prove that concealment was factor in their delay. That is still a difficult burden to meet as proving intentional conduct is difficult.
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