Birthing injuries are extremely challenging for families. They are particularly difficult when caused by a physician or member of the treating hospital staff. Under these circumstances, a court of law may order the payment of damages as compensation for the injury. But a malpractice claim requires more than the simple filing of a document. When instituting a malpractice lawsuit, its important to abide by the relevant laws within Illinois.
Statute of Limitations
The state places limits on the amount of time you have to file a lawsuit in Illinois courts. Under Illinois law, an injured party has two years to file a lawsuit, but there are variations on when the time begins to run. Though it typically starts on the date that the injury occurred, this isn’t always practical because the victim may not be aware that the injury occurred. In this situation, the discovery rule may apply, where the statute of limitations does not start until the date that the injury is discovered. In some situations, the statute of limitations time may be interrupted, like in cases where the victim is a minor or temporarily disabled. The statute of limitations will begin running again when the child becomes an adult or the disability is cured.
In cases of birth injury, parents are not always immediately aware that an injury occurred. Some physical challenges may not manifest themselves until later in the child’s development. For this reason, the discovery rule is extremely relevant to birth injury cases.
The reasons for the statute of limitations include:
***The assurance that evidence remains fresh and accessible
***Keeps the defendant from having to endure a constant threat of legal actions ***Forces plaintiffs to assert their rights in a timely manner or lose the opportunity
Illinois lawmakers previously instituted laws to limit the amount of damages that a plaintiff could receive from a medical malpractice claim. Victims of malpractice, with the assistance of the legal community worked to overturn the law and in 2010, the state Supreme Court agreed. As result, in the state of Illinois, there are no limits on the amount of damages that a plaintiff can receive in a medical malpractice case.
The Certificate of Merit
Before filing a medical malpractice claim within Illinois, the law requires the plaintiff to first complete a certificate of merit. This is a written affidavit from a credentialed physician, asserting the following:
***That the affiant reviewed the case details, and
***That the affiant is qualified to make a medical determination, and ***That some type of medical malpractice did occur; or
***That a qualified physician could not be consulted prior to the statute of limitations expiring
The reasoning behind the certificate of merit is to weed out frivolous claims and protect the court’s resources. Failure to file the form can result in a dismissal of the case.
If you are considering a lawsuit for medical malpractice based on a birth injury, a capable attorney can guide you through the requirements of litigation. Contact the experienced birth injury attorneys of Levin & Perconti today at (877) 374-1417 for a free consultation.
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