Understanding Medical Malpractice Statutes of Limitations and Statutes of Repose

Navigating the legalities of medical malpractice can be complex and confusing. Two key legal principles that often come into play are the statute of limitations (SOL) and the statute of repose. Understanding these terms is crucial for anyone who believes they have experienced medical malpractice and is considering legal action.

What is Medical Malpractice?

Medical malpractice occurs when a healthcare professional deviates from the standard of care, resulting in harm to a patient. This can include errors in diagnosis, treatment, aftercare, or health management.

The Statute of Limitations (SOL)

The statute of limitations is a law that sets the maximum time after an event within which legal proceedings may be initiated. For medical malpractice, this means you have a limited period to file a lawsuit after the incident occurs or after discovering the harm caused by the malpractice.

The Statute of Repose

The statute of repose serves a similar function but has a crucial difference. While the statute of limitations is often triggered by the discovery of harm, the statute of repose sets an absolute deadline, regardless of when the harm was discovered. This is to provide finality and limit indefinite liability for defendants.

Specifics of Medical Malpractice Timeframes in Illinois

In Illinois, medical malpractice cases are governed by specific statutes that outline both the statute of limitations and the statute of repose. Let’s dive into the relevant provisions under the Illinois Compiled Statutes:

Statute of Limitations: 2 Years

Under Illinois law, specifically (735 ILCS 5/13-212):

  • General Rule: No action for damages for injury or death against any physician, dentist, registered nurse, or hospital may be brought more than 2 years after the date on which the claimant knew, or through reasonable diligence should have known, or received written notice of the existence of the injury or death.
  • Whichever Occurs First: The 2-year period begins from the earliest date the claimant was informed, should have known, or reasonably discovered the injury.

Statute of Repose: 4 Years

Moreover, the Illinois statute of repose imposes an absolute deadline:

  • General Rule: No medical malpractice action can be brought more than 4 years after the date on which the alleged act or omission occurred.
  • Hard Stop: After 4 years from the date of the malpractice, claims are barred regardless of when the injury was discovered.

Special Cases: Minors and Legal Disabilities

For minors and individuals with legal disabilities, the rules are slightly different:

  • Minors: If the injured party was under 18 years of age when the malpractice occurred, actions can be brought up to 8 years after the incident, but not after the person’s 22nd birthday.
  • Legal Disabilities: If the claimant was under a legal disability (other than being under the age of 18) when the cause of action accrued, the limitations period does not begin until the disability is removed. S.D. v. Kishwaukee Community Hospital, 288 Ill. App. 3d 472, 681 N.E.2d 140 (Ill. App. Ct. 1997)
  • Subsequent Disabilities: If the claimant becomes legally disabled before the period of limitations expires, the limitations period is stayed (paused) until the disability is removed. However, this does not invalidate any statute of repose.

Practical Example

Imagine a patient undergoes surgery on January 1, 2020. They do not immediately know that a surgical error occurred. If they discover the error on January 1, 2022, they have 2 years from that discovery date—until January 1, 2024—to file a malpractice claim, thanks to the statute of limitations.

However, if they discover the error on January 1, 2025, even though it is only 1 year since discovery, the statute of repose bars any claim because more than 4 years have passed since the actual surgery date.

For a minor who was injured due to medical malpractice on January 1, 2020, the statute allows the claim to be filed until January 1, 2028, provided that by then, the individual has not yet turned 22.


Understanding the statute of limitations and the statute of repose for medical malpractice cases is crucial for timely and effective legal action. The statute of limitations offers a window based on discovery but is limited by the strict boundary set by the statute of repose. In Illinois, these statutes ensure that claims are brought within a reasonable period to prevent indefinite liability but provide special concessions for minors and individuals with legal disabilities. If you believe you have a medical malpractice case, it is advised to consult with a legal professional as soon as possible to ensure your claim is filed within the allowable time frame.

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