Illinois Medical Malpractice Summary

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Illinois has twice adopted tort reform legislation that included caps on non-economic damages for medical malpractice claims, but neither act remains in force. In Best v. Taylor Machine Works, 179 Ill. 2d 267, 689 N.E.2d 1057 (1997), The Illinois Supreme Court found P.A. 89-7 (1995) to be unconstitutional in its entirety. In Lebron v. Gottlieb Memorial Hospital, 237 Ill.2d 217, 930 N.E.2d 895 (2010), it found the damage caps in Public Act 94-677 (2005) to be unconstitutional, and held the entire act to be void because it contains an inseverability provision. Neither act has been legislatively repealed, so sections that were added or amended continue to be published in current statutory compilations. It is necessary to consult the notes to these sections to be certain what remains valid.

Statutes of Limitations

An action for personal injury or death against a physician, dentist, nurse, or hospital must be filed within two years from the date the claimant knew or reasonably should have known of the injury. 735 Ill. Comp. Stat. Ann. § 5/13-212(a) (Westlaw 2010). In no event may a claimant bring an action more than four years after the date on which the alleged act or omission occurred. Id. This statute of repose is constitutional. Mega v. Holy Cross Hospital, 111 Ill. 2d 416, 490 N.E.2d 665 (1986).

If the claimant was under the age of eighteen when the cause of action accrued, the limitation period is eight years from the date of the alleged act or omission, except that in no event may such an action be filed after the minor claimant’s 22nd birthday. § 5/13-212(b). If the claimant is mentally incompetent, the period of limitations does not begin to run until the disability is removed. § 5/13-212(c).

Wrongful death actions are governed by a different two-year statute of limitations that begins to run on the date of death. 740 Ill. Comp. Stat. Ann. § 180/2 (Westlaw 2010). However, such an action can only be brought if, on the date of death, the decedent could still have commenced a malpractice action for the injury that caused the death. Wolf v. Bueser, 279 Ill. App. 3d 217, 664 N.E.2d 197, cert. denied, 168 Ill. 2d 629, 671 N.E.2d 745 (1996).

Contributory or Comparative Negligence

Illinois has adopted a form of modified comparative negligence. Under this doctrine, a claimant’s action is barred only if his contributory fault is more than 50 percent of the proximate cause of the injury or damage for which recovery is sought. Otherwise, the claimant’s recovery is diminished in proportion to his percentage of fault. 735 Ill. Comp. Stat. Ann. § 5/2-1116 (Westlaw 2010) (see notes for the wording prior to the unconstitutional amendment by P.A. 89-7).

Joint and Several Liability

Defendants in any medical malpractice action based upon negligence are jointly and severally liable for all damages. 735 Ill. Comp. Stat. Ann. § 5/2-1118 (Westlaw 2010). This section was repealed in 1995 by P.A. 89-7 and replaced by a different section that provided for several liability only, but these changes were held to be unconstitutional in Best v. Taylor Machine Works, 179 Ill. 2d 267, 689 N.E.2d 1057 (1997).

Contribution

A tortfeasor who pays more than his share of a common liability, as measured by relative culpability, has a right of contribution against the other tortfeasors, with the exception of those who have settled. A settling tortfeasor is not entitled to contribution from any tortfeasor whose liability was not extinguished by the settlement. 740 Ill. Comp. Stat. Ann. §§ 100/2 and 100/3 (Westlaw 2010).

If a plaintiff asserts his claim by means of a lawsuit, then the defendants must pursue their contribution rights in the main lawsuit by means of cross-claims (called counterclaims in Illinois) or third-party claims. A contribution claim brought as a second, separate lawsuit will be barred. Harshman v. DePhillips, 218 Ill. 2d 482, 844 N.E.2d 941 (2006); Laue v. Leifheit, 105 Ill. 2d 191, 473 N.E.2d 939 (1984). This is so even though the applicable statute says that a contribution claim may be asserted in a separate action after payment. 740 Ill. Comp. Stat. Ann. § 100/5 (Westlaw 2010) (see notes for the wording prior to the unconstitutional amendment by P.A. 89-7).

Vicarious Liability

A hospital is vicariously liable for the negligent acts of an independent contractor physician if (a) it acts in a manner, or knowingly acquiesces in the acts of an agent, that would lead a reasonable person to conclude that the physician is its agent or employee, and (b) the patient reasonably relies upon such conduct. Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 622 N.E.2d 788 (1993) (involving emergency care). It may be assumed that if a patient has not selected a specific physician, then he is relying upon the hospital to provide complete care, and even if he has selected a physician to perform particular services, he may be relying on the hospital for support services like radiology, pathology, or anesthesiology. York v. Rush-Presbyterian-St. Luke’s Medical Center, 222 Ill. 2d 147, 854 N.E.2d 635 (2006). A patient may be foreclosed from arguing that a physician reasonably appeared to be an agent if properly placed on notice that the physician is an independent contractor. Id.; Wallace v. Alexian Bros. Medical Center, 389 Ill. App. 3d 1081, 907 N.E.2d 490 (2009). A different test enacted as part of P.A. 89-7 still appears at 735 Ill. Comp. Stat. Ann. § 5/2-624 (Westlaw 2010), but it was held to be unconstitutional in Best v. Taylor Machine Works, 179 Ill. 2d 267, 689 N.E.2d 1057 (1997).

Expert Testimony

In any medical malpractice case, a plaintiff’s attorney must attach to the complaint (or in some circumstances file within 90 days) an affidavit stating that (a) he has consulted with an expert who practiced or taught within the last six years in the same area of medicine that is at issue; (b) the expert is qualified by experience or demonstrated competence in the subject of the case; and (c) the expert has determined in a written report, after a review of the medical record and other relevant material, that there is a reasonable and meritorious cause for the filing of such action. A copy of the report must be attached, but the identity of the expert may be withheld. 735 Ill. Comp. Stat. Ann. § 5/2-622 (Westlaw 2010) (see notes for the wording prior to the unconstitutional amendments by P.A. 89-7 and P.A. 94-677).

Damage Caps

Illinois has no cap on compensatory damages for medical malpractice. Caps on non-economic damages were enacted as part of P.A. 89-7 and P.A. 94-677 and have never been repealed. 735 Ill. Comp. Stat. Ann. §§ 5/2-1115.1 and 5/2-1706.5 (Westlaw 2010). However, they were held to be unconstitutional in Best v. Taylor Machine Works, 179 Ill. 2d 267, 689 N.E.2d 1057 (1997), and Lebron v. Gottlieb Memorial Hospital, 2010 WL 375190 (Ill. February 4, 2010), respectively. Punitive damages are not allowed for medical malpractice. 735 Ill. Comp. Stat. Ann. § 5/2-1115 (Westlaw 2010). This section has been held to be constitutional. Bernier v. Burris, 113 Ill. 2d 219, 497 N.E.2d 763 (1986).

Statutory Cap on Attorneys’ Fees

In Illinois, an attorney’s contingent fee in a medical malpractice case is limited to (a) 33 1/3 percent of the first $150,000 recovered, (b) 25 percent of the next $850,000 recovered, and (c) 20 percent of any amount over $1,000,000. However, if the claimant’s attorney performs extraordinary services involving more than the usual time and effort, the attorney may petition the court for additional compensation. 735 Ill. Comp. Stat. Ann. § 5/2-1114 (Westlaw 2010).

Periodic Payments

If all parties agree, or if there is a good faith claim that future damages will exceed $250,000, a periodic payment plan may be sought. 735 Ill. Comp. Stat. Ann. § 5/2-1705 (Westlaw 2010). The election may be made by motion of either party at least 60 days prior to a trial involving future damages. Id. When the periodic payment plan is elected, the trier of fact must make specific findings as to past and future pecuniary damages. 735 Ill. Comp. Stat. Ann. § 5/2-1706 (Westlaw 2010). The trier of fact makes a finding as to the claimant’s life expectancy and adopts a monthly payment schedule accordingly for future pecuniary damages. Id. This procedure is seldom used and there are few published decisions interpreting it.

Collateral Source Rule

Illinois has adopted a modified collateral source rule applicable to medical malpractice cases only. If the defendant applies within 30 days after judgment, the award will be reduced by the following amounts: (a) 50 percent of the lost wages or disability income paid or payable to the claimant in relation to the injury by another person, corporation, or insurance company; (b) 100 percent of the medical, hospital, and nursing charges paid or payable to the claimant in relation to the injury by another person, corporation, or insurance company. 735 Ill. Comp. Stat. Ann. § 5/2-1205 (Westlaw 2010). The reduction of a claimant’s recovery by collateral source payments, however, is limited by the following rules: (a) there can be no reduction for amounts paid by a person with a right of subrogation against the judgment; (b) the judgment may not be reduced by more than 50 percent; (c) the damages awarded must then be increased by insurance premiums or direct cost paid by the claimant; and (d) there is no reduction for medical expense directly attributable to the adjudged negligent act or omission of the defendant. Id.

Pre-Judgment Interest

Illinois statutory law does not generally provide for the award of pre-judgment interest in medical malpractice actions, and absent a statute or agreement providing to the contrary, pre-judgment interest is not recoverable. Northern Trust Company v. County of Cook, 135 Ill. App. 3d 329, 481 N.E.2d 957 (1985).

Patient Compensation Funds and Physician Insurance

Illinois does not have a patient compensation fund or a general program of state-sponsored liability insurance for physicians.

Immunities

Article 13, section 4 of the 1970 Illinois Constitution abolished sovereign immunity, except as the legislature thereafter provided. The legislature established the Court of Claims to hear claims against the state and its employees. 705 Ill. Comp. Stat. Ann. § 505/8 (Westlaw 2010). Restrictions on the scope of recovery include a $100,000 cap on liability, Id., and a requirement that claims be filed within one year. 705 Ill. Comp. Stat. Ann. § 505/22-1 (Westlaw 2010). However, medical negligence claims against individual health care providers employed at state medical facilities are not considered to arise from their employment, but from their individual duties to their patients. Such actions are not subject to governmental immunity and may be brought in the Circuit Court. Jinkins v. Lee, 209 Ill. 2d 320, 807 N.E.2d 411 (2004).

Illinois also provides a degree of tort immunity to local governments and their employees. Protected local public entities include counties, townships, municipal corporations, and various local boards. 745 Ill. Comp. Stat. Ann. § 10/1-206 (Westlaw 2010). With respect to medical malpractice, a distinction is made between diagnosis and treatment. Neither a local public entity nor a public employee acting within the scope of his employment is liable for injury caused by (a) failing to make an adequate physical or mental examination, (b) diagnosing or failing to diagnose that a person is afflicted with a mental or physical illness or addiction, or (c) failing to admit a person to a medical facility operated or maintained by a local public entity. However, neither a local public entity nor its employees are immune from liability for the negligent or wrongful prescription or administration of treatment. 745 Ill. Comp. Stat. Ann. §§ 10/6-105 and 6-106 (Westlaw 2010); Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493, 732 N.E.2d 528 (2000). In 2003, the statute of limitations for medical malpractice actions against local public entities and their employees was amended to match the general statute: two years from notice, but not more than four years from the act or omission. 745 Ill. Comp. Stat. Ann. § 10/8-101 (Westlaw 2010).

The law also protects local public entities from liability for punitive damages. 745 Ill. Comp. Stat. Ann. § 10/2-102 (Westlaw 2010). Local public entities may purchase liability insurance, and an insurer is required to utilize any immunity to which the insured entity or its employees are entitled. 745 Ill. Comp. Stat. Ann. § 10/9-103 (Westlaw 2010).

Arbitration

Illinois law allows for but does not require the reference of medical malpractice actions to binding arbitration. 710 Ill. Comp. Stat. Ann. §§ 15/1 to 15/14 (Westlaw 2010).

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Revision Date: February 6, 1998