Illinois law on a missed or delayed diagnosis

The general rule has two parts. A claim against a physician, a registered nurse or a licensed hospital must be brought within 2 years of the date you knew, or through reasonable diligence should have known, of the injury (opens in a new tab), or received written notice of it, whichever comes first.

The second part is an outer limit. However late the injury came to light, the claim cannot be brought more than 4 years after the act or omission said to have caused it (opens in a new tab).

The Illinois Supreme Court reads the first part to mean that the period begins when a person knows or reasonably should know both of the injury and that it was wrongfully caused (opens in a new tab). The court has said that this does not mean knowledge of a specific defendant’s negligent conduct, or knowledge that a claim exists (opens in a new tab). It means having enough information that a reasonable person would start asking questions.

From that point, in the court’s words, the burden is on the injured person to inquire further (opens in a new tab). When that point came is a question of fact unless the facts are undisputed and only one conclusion can be drawn from them (opens in a new tab).

These are general rules. Which of them governs your family’s situation depends on dates and facts a lawyer has to look at, which is the reason to ask early.

This is where a missed diagnosis differs from most malpractice claims. The outer limit is counted from the act or omission itself, and the Illinois Supreme Court has said it may bar a claim even before the patient knows of or discovers the injury (opens in a new tab).

Staying with the same doctor does not, by itself, extend that limit. The court declined to adopt a rule that would have started the period only when the treatment ended (opens in a new tab).

It did recognize a narrower rule. A patient who can show a continuous and unbroken course of negligent treatment, so related as to be one continuing wrong (opens in a new tab), is not barred, and the period then runs from the last date of that negligent treatment. The court stressed that the treatment itself must have been negligent throughout. A continuing relationship with the doctor is not enough.

A separate rule applies to fraudulent concealment. If the person liable fraudulently conceals the claim, Illinois allows it to be brought within 5 years after it is discovered (opens in a new tab). The Illinois Supreme Court has said that this takes acts or statements meant to keep a person from discovering the claim or from filing it in time, and that mere silence is not enough (opens in a new tab).

No web page can apply these rules to your dates. If a scan, a biopsy or a visit from some years ago is in question, the date of that care is the first thing a lawyer will ask for.

For a patient who was under 18 when the claim arose, Illinois allows 8 years from the act or omission, and in no case past the patient’s 22nd birthday (opens in a new tab).

For a person who was under a legal disability when the claim arose, the time limit does not begin to run until the disability is removed (opens in a new tab). How the rule applies to a particular person is something a lawyer has to assess.

Illinois does not let a malpractice case go forward on a lawyer’s word alone. The attorney must file an affidavit stating that he or she has consulted a health professional who has practiced or taught in the same area of medicine within the last 6 years (opens in a new tab) and is qualified in the subject of the case.

That professional must have reviewed the medical record and determined, in a written report, that there is a reasonable and meritorious cause for filing the action (opens in a new tab). A copy of the report is filed with the affidavit.

When a case names more than one defendant, a separate report is required for each (opens in a new tab). A delayed diagnosis can involve several: the doctor who ordered a test, the radiologist or pathologist who read it, and a hospital or clinic.

Who may later testify as an expert is a separate question. An Illinois statute lists what a court weighs, beginning with the relationship of the witness’s medical specialty to the medical problem in the case (opens in a new tab).

If the deadline is close and the review cannot be finished in time, the statute allows the report to be filed within 90 days after the complaint (opens in a new tab). That is a narrow allowance and it has to be claimed in the affidavit. Failing to file the report is grounds for dismissal.

A bad outcome is not enough. The Illinois Supreme Court describes the standard as what an ordinarily careful professional would do (opens in a new tab), and it puts the burden on the patient to show what that was, that the provider did not do it, and that the failure caused the injury.

Because jurors are not trained in medicine, expert testimony is generally required (opens in a new tab) to establish the standard and the departure from it. The exception is conduct so plainly negligent that a layperson could judge it.

Causation is the harder question when the illness was already there. Illinois courts call it lost chance: the injury to a patient whose providers are alleged to have negligently deprived the patient of a chance to survive or recover, or whose malpractice lessened the effectiveness of treatment (opens in a new tab).

A patient does not have to show that the odds were better than even. The Illinois Supreme Court rejected the rule that a patient cannot recover without proving a better than 50% chance of survival or recovery (opens in a new tab). To hold otherwise, it said, would excuse even the grossest negligence toward a patient who was already seriously ill.

That is not a lower standard of proof. The same court has said lost chance does not relax, lower or otherwise alter the burden of proving causation (opens in a new tab). The patient must still prove that the negligence more probably than not caused the injury, and that takes expert testimony (opens in a new tab).

What a delay changed is therefore a medical question about one patient. The National Cancer Institute says survival statistics are based on large groups of people and cannot be used to predict exactly what will happen to an individual patient (opens in a new tab).

A diagnosis can pass through several hands. One clinician orders a test, a radiologist reads the scan or a pathologist reads the slide, and someone has to see that the result reaches the patient and is acted on. A review of the records looks at each step.

The hospital can be answerable even when the doctor is not its employee. The Illinois Supreme Court has held that a hospital may be liable for a physician who is an independent contractor unless the patient knew, or should have known, of that arrangement (opens in a new tab).

The rule has limits. The patient has to show that the hospital presented the doctor as its own, and that the patient looked to the hospital for the care (opens in a new tab). What a patient was told, and what the patient signed, can change the answer.

Illinois gives patients a right to their own chart. A hospital must let a patient, or the patient’s authorized attorney, examine and copy the patient care records (opens in a new tab), and a request for copies has to be in writing. The hospital has 30 days to comply, and no more than 60 days if it explains the delay in writing (opens in a new tab).

The same statute gives the same right against health care practitioners (opens in a new tab), so records held by a doctor’s office or an outside practice are requested from that practice.

In these cases the originals matter, because a scan or a slide can be read again. The rules on how long they must be kept are minimums, and they differ by what the item is and who holds it.

A hospital licensed under the Illinois Hospital Licensing Act must preserve its medical records for not less than 10 years (opens in a new tab). That Act does not cover hospitals run by the federal government or by a state university (opens in a new tab). A separate statute requires hospitals to keep X-ray films for 5 years (opens in a new tab).

Federal rules require a laboratory to keep histopathology slides, the glass slides cut from biopsy tissue, for at least 10 years from the date of examination, slides of cell samples for at least 5 years, and pathology specimen blocks for at least 2 years (opens in a new tab). The same rule requires pathology reports to be kept for at least 10 years.

A mammography facility must keep the original mammograms and reports for at least 5 years, or at least 10 years if the patient has no further mammograms there (opens in a new tab), and must transfer them at the patient’s request within 15 calendar days.

When a patient has died, the records must be released to the executor or administrator of the estate, or to an agent the patient appointed under a health care power of attorney (opens in a new tab). Where there is none of these and the patient did not object in writing, the statute allows release to the surviving spouse or, if there is no spouse, to an adult child, a parent or an adult sibling who completes the certification it sets out.

The rules change with who runs the hospital, and some of the deadlines are shorter.

For a county or other local public hospital, a patient-care claim must be brought within 2 years of when you knew or should have known of the injury, and no more than 4 years after the care (opens in a new tab). The longer period Illinois gives children in other malpractice cases is not written into that statute.

A claim against the State itself, or against a state university’s board of trustees, belongs in the Illinois Court of Claims, which has exclusive jurisdiction over tort claims against the State (opens in a new tab). Awards there are limited by statute.

A person bringing an injury claim in that court must first file a notice with the Attorney General and with the court’s clerk within 1 year (opens in a new tab), unless the claim itself is filed within that year.

A claim over care at a federal facility, such as a veterans’ hospital, runs under the Federal Tort Claims Act. It must be presented in writing to the federal agency within two years after it accrues (opens in a new tab), and the same statute sets a six-month limit for going to court once the agency mails a denial.

No lawsuit can be filed until the agency has denied the claim, or has gone six months without deciding it (opens in a new tab). The case is then tried by a judge without a jury (opens in a new tab).

Which of these applies depends on who owned and staffed the facility, and that is not always clear from the name on the building. It is one of the first things to find out.

A wrongful death case is brought by the personal representative of the person who died (opens in a new tab), for the benefit of the surviving spouse and next of kin. Family members do not file in their own names.

A jury may award fair and just compensation for the family’s losses, including grief, sorrow and mental suffering (opens in a new tab). The claim the patient had for his or her own injury survives the death (opens in a new tab) and can be pursued for the estate.

Timing in a malpractice death follows the malpractice statute. The Illinois Supreme Court has held that the period begins when the person bringing the claim knows or reasonably should know of the death and that it was wrongfully caused (opens in a new tab), and the outer limit measured from the care still applies.

One holding helps a family whose relative had already sued. Where a malpractice case was filed in time and the patient then died after the outer limit had passed, the court held that a wrongful death claim based on the same care could be added to the pending case (opens in a new tab). The same opinion says a new wrongful death suit filed at that point would have been barred.

Every case turns on its own facts, and no lawyer can promise a result. What Illinois law does set out is the framework.

No cap is in force on compensatory damages in a malpractice case against a private doctor or hospital. The legislature enacted a limit on noneconomic damages in 2005, the Illinois Supreme Court held it unconstitutional in 2010 (opens in a new tab), and the section was later repealed (opens in a new tab).

Where negligence has raised the risk of a future harm that is not certain to happen, the Illinois Supreme Court has held that a patient can be compensated for that increased risk, in an amount that reflects how likely the harm is (opens in a new tab). The increased risk has to be proven with evidence.

Punitive damages are a different matter. Illinois does not allow them in a malpractice case (opens in a new tab).

A patient’s own share of fault can reduce an award. A plaintiff found more than 50% at fault recovers nothing (opens in a new tab), and below that line the award is reduced in proportion.

Illinois lets a case be filed in the county where a defendant resides or where some part of the events took place (opens in a new tab), so a claim over care in Chicago can generally be brought in Cook County.

There, suits seeking more than $30,000 in Chicago are heard in the Law Division of the Circuit Court of Cook County (opens in a new tab), whose main location is the Richard J. Daley Center.