In a recent case, a medical malpractice plaintiff had his case dismissed based on a procedural error. A boy was born prematurely by an emergency C-section surgery, and then he was transferred to the neonatal intensive care unit. He stayed in the unit for two months and was then discharged in stable condition. A year and a half later, a notice of claim was brought against the hospital for failing to properly treat and care for his mother prenatally and for failing to obtain informed consent regarding the boy’s care. The claim alleged that the boy suffered brain damage, development, speech, and psychomotor delays, cognitive defects, and respiratory distress and seizure disorder as a result.
The plaintiff filed the claim in court another year and a half later, and four months later he sought permission to serve a late notice of claim on the defendants. The court dismissed the case for failing to provide timely notice to the hospital.
The state’s laws required that a notice of claim be served on a public corporation within 90 days of the claim arising. In medical malpractice cases, the relevant time is when a negligent act or omission occurred. Here, the plaintiff failed to serve notice within the required 90 days after the hospital provided negligent care. The court could have extended the time to serve notice and allow late notice in certain circumstances—for example, if the public corporation had knowledge of the essential facts constituting the claim. However, in this case, the plaintiff’s attorney stated that he waited to make the motion to request serving notice because he needed to receive the medical records from the hospital.
The court explained that this delay was unreasonable and that requesting medical records did not sufficiently put the hospital on notice. Thus, that state’s supreme court found that the plaintiff’s failure to serve notice within the required time justified the dismissal of the case.
Medical Malpractice Actions and Time Requirements in Illinois
Each state has a statute of limitations for medical malpractice claims. This means that a claim for medical malpractice must be brought within the stated time period. In Illinois, most medical malpractice actions must be brought within two years of the date the plaintiff knew or should have known of the injury or death. The maximum amount of time to bring a claim after the negligent treatment is four years. However, if the person entitled to bring the claim was under 18 at the time the cause of action arose, it must be brought within eight years, and it must be brought before the person’s 22nd birthday. In addition, if a minor suffers from a permanent disability, the claim is not barred by the eight-year statute of limitations for minors. Finally, in medical malpractice claims against a county hospital, there is a one-year statute of limitations.
One major issue in medical malpractice claims is when a person knew or should have known of the injury or death that may have been the result of negligent treatment. If a reasonable person would have discovered the issue by a certain time, the statute of limitations begins to run.
Have You or a Family Member Received Negligent Medical Care?
If you believe that you or a loved one has received negligent medical treatment, it is very important that you act fast. The statute of limitations can be as short as one year, and a failure to adhere to this rule will likely result in the dismissal of your case. Since it takes time to gather the information necessary to file a complaint, you should seek legal advice as soon as possible. The Chicago lawyers at Moll Law Group are available to advise people who have suffered from medical malpractice, including birth injuries and prenatal injuries. Contact us through our online form or call us at 312-462-1700 to arrange a free initial consultation.
See More Posts:
Woman Injured on Icy Hotel Sidewalk Fails to Provide Evidence of Hotel’s Duty to Train Employees, Must Retry Case, Illinois Injury Lawyer Blog, July 9, 2016.
Court Finds Nursing Home Waived Its Right to Arbitration Despite Signed Arbitration Clause, Illinois Injury Lawyer Blog, June 13, 2016.
Court Dismisses Case After Failure to Pay Filing Fee Within Statute of Limitations, Illinois Injury Lawyer Blog, June 25, 2016.