What is the medical malpractice statute of limitations in Illinois?

In general, the statute of limitations on Illinois medical malpractice lawsuits is two years from the date of injury. If you discover your injury later on, then you may have no longer than four years to file a lawsuit. However, specific case facts can create variances in the statute of limitations, so it is important to consult with an attorney as soon as possible.

Does the statute of limitations differ if the patient was a minor at the time of injury?

Since unemancipated minors lack the capacity to file a legal action, state law extends the statute of limitations in medical malpractice cases to allow minors to file a legal action for up to eight years after the injury occurred, or until the minor turns 22. Birth injuries typically fall under the same rule as medical malpractice claims.

What is the Illinois Statute of Limitations for Wrongful Death?

When a family member dies because of someone else’s negligence, Illinois’ wrongful death statute of limitations gives you two years to file a lawsuit. This time limit can be longer or shorter in some cases. It is crucial to contact an experienced wrongful death lawyer as soon as possible to ensure you do not miss this important deadline.

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How Long Do I Have to File a Wrongful Death Lawsuit in Illinois?
What Are the Exceptions to the Illinois Statute Of Limitations on Wrongful Death?
Time Limitations When Wrongful Death Is Caused by Medical Malpractice
Workplace Accidents
Product Liability Claims
How Long Do You Have To File A Wrongful Death Lawsuit Against A Public Or Government Entity in Illinois?
Survival Claims
What If the Illinois Wrongful Death Statute of Limitations Has Expired?
Testimonials

The wrongful death statute of limitations in Illinois limits the amount of time you have to file a wrongful death lawsuit after an immediate family member passes away due to negligence, defective products, or intentional misconduct.

When you hire our skilled and compassionate wrongful death lawyers, we will immediately assess how the statute of limitations applies to your case and work quickly to gather evidence, prepare a strong case, and file your lawsuit well ahead of the Illinois wrongful death statute of limitations.

How Long Do I Have to File a Wrongful Death Lawsuit in Illinois?

You generally have two years after the death of your family member to file a wrongful death lawsuit, but there are exceptions. If you are suing a governmental agency in Illinois, you must meet additional requirements within a shorter time limit. The law also extends the statute of limitations in limited circumstances.

The two-year statute of limitations for wrongful death in Illinois applies to wrongful death claims that stem from the following:

Car accidents
Truck accidents
Motorcycle accidents
Pedestrian accidents
Premises liability cases, such as slips and falls
Some medical malpractice cases

What Are the Exceptions to the Illinois Statute Of Limitations on Wrongful Death?

The Illinois statute of limitations in wrongful death cases typically begins to run on the date of your family member’s death, but if your case qualifies for an exception, the clock may be temporarily paused. When this occurs, the statute of limitations is said to be tolled.

It is important not to assume your case qualifies for an exception without seeking the counsel of a reputable wrongful death attorney in Illinois. Wrongful death cases are often filed against large insurance companies, and their lawyers will almost certainly fight any attempts to extend the statute of limitations.

The safest course of action is to file your wrongful death lawsuit within the two-year Illinois wrongful death statute of limitations, if possible. The exceptions are discussed below.

Death Caused by Criminal Misconduct

Although illegal activities are prosecuted in the criminal justice system, you also have the right to file a civil wrongful death lawsuit. The statute of limitations in these cases may be longer than the general two-year statute of limitations in some situations.

Felony Convictions Requiring Restitution

If your family member’s death resulted from a felony for which the defendant has been convicted and ordered to pay restitution, the Illinois wrongful death statute of limitations is tolled until the establishment of the escrow account where restitution will be paid. You will then have two years from that date to file your lawsuit.

Violent Acts

If the death results from intentional violence, you must bring a wrongful death lawsuit five years after the death date. In the alternative, you have one year after the final disposition of the criminal proceedings if the defendant is charged with the following:

First-degree murder
Second-degree murder
Involuntary manslaughter
Reckless homicide
Homicide or manslaughter of an unborn child
Drug-induced homicide

Minors and People With Legal Disabilities

The law limits who can file a wrongful death claim to the deceased’s immediate family. If you are entitled to bring a wrongful lawsuit but are under 18, the statute of limitations is tolled until your 18th birthday. After turning 18, you have two years to file your claim.

People declared legally incompetent or who otherwise have disabilities limiting their mental capacity are eligible to have the wrongful death statute of limitations in Illinois tolled until they are no longer disabled. However, the claim cannot be filed more than 10 years after the death.

In these cases, it may be necessary for a court-appointed personal representative or someone with the appropriate power of attorney to file the wrongful death claim on the disabled individual’s behalf.

Our talented and resourceful wrongful death lawyers can help find a suitable representative and obtain the necessary court approval to move the case forward.

Absence From the State

Every defendant must be notified that a lawsuit has been filed against them through service of process. A process server usually does this. However, defendants who have left the state often cannot be located or properly served.

As a result, if the at-fault party that caused the death is absent from the state, the statute of limitations is tolled for the length of the absence. The clock will resume after the defendant returns.

Fraudulent Concealment

If the at-fault party prevented you from discovering the cause of your loved one’s death by improperly withholding information, you may qualify for an extension of the Illinois statute of limitations for wrongful death based on fraudulent concealment.

This allows you to file suit up to five years after you discovered the cause of death or should have discovered it through reasonable diligence.

Time Limitations When Wrongful Death Is Caused by Medical Malpractice

If your loved one has died from medical negligence, you have up to two years to file a wrongful death lawsuit, but this time limit does not necessarily commence at death. Illinois uses the discovery rule to determine when the statute of limitations should begin to run.

The statute of limitations begins to run on the date of death if you were already or should have been aware that medical malpractice caused the death. If you did not become aware of the real cause of death until later, the statute of limitations begins to run when you should have discovered it.

Medical malpractice cases involve large insurance companies that invest significant financial resources to fight victims of medical errors. These companies often argue that you should have discovered the injury sooner. They employ these tactics to seek dismissal of cases.

Our award-winning medical malpractice lawyers have been fighting large insurance companies for over 30 years, and we consistently overcome tactics like these.

In any event, Illinois imposes a statute of repose on medical malpractice cases. This law sets a hard deadline for filing suit, regardless of when you discovered the malpractice. This deadline is four years from when the health care provider committed the error.

Workplace Accidents

Workers’ compensation covers most workplace accidents. Illinois workers’ compensation provides death benefits to the surviving spouse, children, and other dependents.

If your loved one dies from a workplace injury, you have up to three years after the date of death to file a workers’ compensation claim.

However, if your loved one started receiving benefits after the accident but before death, you have up to two years to file a workers’ compensation claim or three years after the death, whichever is later.

Product Liability Claims

If a loved one dies from a defective product, you can file a product liability claim if your loved one passed away within the earlier of the following:

12 years after the first sale of the product to a distributor or retailer
10 years after the product was initially delivered to a consumer.

If the death occurs within these time limits, you have two years after the death or after the date you discovered or should have discovered that the product caused the death. However, you cannot file your lawsuit more than eight years after the death, regardless of when you discovered the cause.

How Long Do You Have To File A Wrongful Death Lawsuit Against A Public Or Government Entity in Illinois?

A lawsuit against the state of Illinois must be filed within two years. However, within one year of the death, you must provide the state agency with a Notice of Claim notifying the state of your intention to sue. There is an exception to the Notice of Claim requirement if you file your lawsuit within a year. If you do not file your lawsuit or Notice of Claim within a year, your case will be dismissed.

For a claim against a county or city government in Illinois, you generally have two years to file suit, and a Notice of Claim is not required.

Survival Claims

In addition to a wrongful death claim, your family may be able to file a survival claim on behalf of the deceased. A survival claim is a personal injury lawsuit the deceased would have been entitled to file if they had survived.

The deadline for survival claims in Illinois is when the personal injury statute of limitations would have expired had your loved one survived or one year after death, whichever is later.

What If the Illinois Wrongful Death Statute of Limitations Has Expired?

If you file a wrongful death lawsuit after the statute of limitations has expired, the court will likely dismiss your case, and you will forever lose your right to pursue justice and financial compensation for your loved one’s death.

The thought of dealing with a lawsuit while coping with the loss of a loved one is overwhelming for many families. When you hire our caring and supportive Illinois wrongful death lawyers, we will deal with the insurance companies, navigate the legal system for you, and meet all deadlines so you can focus on your family. Contact us today for a free consultation.

Testimonials

I want to send my heartfelt thanks to John Perconti and the Levin & Perconti staff in taking our case.

Not only were they so professional but also so caring and thoughtful. It was very difficult going over the facts in our mother's case but they were so compassionate and understanding and allowed us to be with them every step of the way. We were able to sit in on the depositions and we were really able to see how hard they worked on our behalf.

Mr. Levin, Mr. Perconti, and the firm handled a medical malpractice suit for my family.

During that time, my family and I suffered the loss of my mother. Mr. Levin and Mr. Perconti were more than just our lawyers. Words can’t really express our gratitude.

Margaret, Daisy and Bryan. This magnificent cohesive team led by Margaret represented us for my mom's nursing home wrongful death case.

They were most patient and responded timely to many questions throughout the entire process. All demonstrated professionalism and extensive knowledge of case and state laws. Their in-depth investigative work uncovered details which were unknown to us and yet sadly confirmed our suspicions. We would recommend the Levin and Perconti Law firm and especially this team.

Mr. Levin, Mr. Perconti and the firm handled a medical malpractice suit for my family.

During that time, my family and I suffered the loss of my mother. Mr. Levin and Mr. Peconti were more than just our lawyers. Words can’t really express our gratitude. My family and I will always be grateful for the compassion that they showed us. I want to thank you for what you did for my family, and for always being there for us.

Our deepest appreciation to the law firm of Levin & Perconti, and in particular to Margaret Battersby Black, in the handling of the lawsuit we field n behalf of our sister who sustained life-threatening injuries as a nursing home resident.

Margaret’s representation, guidance, and professionalism gave us the sense that we could put our trust in Levin & Perconti and the final outcome proved that to be true.

Legally Reviewed by

Michael F. Bonamarte, IV

Managing Partner

Since 2005, Michael Bonamarte IV has been a passionate advocate for victims of negligent conduct, corporate malfeasance, and medical malpractice. He has won numerous awards and recognitions, including Best Lawyers in America and Super Lawyers’ Rising Star. He has presented for the American Association for Justice, the AAJ Nursing Home Litigation Group, the John Marshall Law School, and numerous other legal associations. He regularly lectures at Chicago-area aging organizations about nursing home abuse. His writings have been published by the American Bar Association, the Chicago Daily Bulletin, and numerous other prestigious publications.

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