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Illinois medical malpractice law is among the most complex legal practice areas. The statutes, case-law, and regulations governing medical malpractice law in Illinois are highly technical. For instance, there are very strict and complicated filing deadlines that must be followed, or the injured patient’s case will not even be allowed to proceed, regardless of the actual substantive merits of the claim. Similarly, there are myriad other esoteric rules in place that make successfully prosecuting a medical malpractice claim in Illinois exceptionally difficult for anyone other than an experienced and knowledgeable medical malpractice lawyer. Unfortunately, this complexity has given rise to a great deal of confusion, misunderstanding, false assumptions, and inaccurate beliefs about medical malpractice claims in Illinois by both members of the general public as well as practicing lawyers. This widespread lack of understanding is not in anyone’s best interests, especially injured patients and their loved ones who are desperate for accurate information and answers.

This article seeks to address the state of confusion by discussing both the broad fundamental principles and many of the key technical mechanics of Illinois medical malpractice law in practice. It is intended that this article do so in plain language with minimal use of legal jargon, so the material presented is easily accessible for both non-lawyers and legal practitioners alike.

Section I below discusses the broad basic principles and concepts of medical malpractice law in Illinois. After reading this Section, the reader will have an understanding of the basic issues for consideration in a medical malpractice case. Sections II through XI examine specific key technical aspects in initiating and prosecuting an action for medical malpractice in Illinois.

Below is a list of topics covered in this article. You can jump directly to a topic by clicking on it.

I. Overview of Basic Principles and Concepts
-What is Medical Malpractice in Illinois?
-Required Elements of a Medical Malpractice Claim in Illinois
-Introduction
-The Four Basic Elements
-Standard of Care
-Proximate Cause
-Res Ipsa Loquitur

II. Filing Deadlines for Medical Malpractice Claims
-Introduction to Statute of Limitations
-Statute of Limitations for Medical Malpractice Claims in Illinois
-The Discovery Rule
-Introduction
-The Discovery Rule in Illinois
-Minors
-Legal Disability
-Fraudulent Concealment

III. Statute of Repose—Absolute Bar to Recovery
-Introduction
-Statute of Repose in Illinois

IV. Immunities and Limitations on Liability
-Sovereign Immunity
-Introduction
-Sovereign Immunity in Illinois
-Actions Against the State of Illinois
-Actions Against Public Local Entities
-Good Samaritan Act
-Introduction
-Good Samaritan Act in Illinois
-Additional Immunities and Limitations on Liability

V. Required Elements of a Medical Malpractice Complaint

VI. Certificate of Merit
-Requirements
-Dismissal for Failure to Comply

VII. Medical Expert Witnesses
-Introduction
-Qualifying as Expert Medical Witness in Illinois
-Admissibility of Expert Testimony About Scientific Principles and Discoveries
-Introduction
-Admissibility of Scientific Principles and Discoveries in Illinois

VIII. Modified Comparative Negligence
-Modified Comparative Negligence with 51% Bar Rule
-Burden of Proof

IX. Limitations on Damages

X. Limitations on Attorney Fees
-Contingent Fee Arrangement
-Limitations on Attorney Fees in Illinois

XI. Apologies and Sympathetic Gestures

I. Overview of Basic Principles and Concepts

What is Medical Malpractice in Illinois?

Medical malpractice is a specific type of professional negligence by a healthcare provider. In the medical malpractice context, negligence means that the healthcare provider’s actions deviated from or fell below the applicable accepted standards of medical practice. When that negligence results in the patient sustaining injury, becoming ill, or illness worsening, then medical malpractice may have occurred.

Illinois law defines the term ‘medical malpractice action’ to mean “any action, whether in tort, contract or otherwise, in which the plaintiff seeks damages for injuries or death by reason of medical, hospital, or other healing art malpractice.” Illinois Compiled Statutes (“ILCS”), Chapter 735 (Civil Procedure), 5/ (Code of Civil Procedure), Section 2-1704 . The statute clarifies that the term ‘healing art’ “shall not include care and treatment by spiritual means through prayer in accord with the tenets and practices of a recognized church or religious denomination.” Id.

Required Elements of a Medical Malpractice Claim in Illinois

Introduction

It is important to understand that not all mistakes made (instances of negligence) by healthcare providers constitute compensable medical malpractice under Illinois law. Similarly, not all injuries following medical treatment amount to medical malpractice entitling the injured patient to compensation. Some degree of risk is inherent in most medical procedures. The law does not require healthcare providers to guarantee that no harm or unfavorable consequence will arise from treatment. The law simply requires that healthcare providers meet the legally required standard of care while rendering medical treatment. While negligence and subsequent injury are necessary factors for a legally valid medical malpractice claim, their mere presence alone is not sufficient for a compensable claim.

Illinois medical malpractice law requires the injured patient to also prove causation between the negligence and the subsequent injury. The negligence must be the actual cause in fact as well as the proximate cause of the patient’s injury. The law does not hold a healthcare provider who was negligent legally responsible for any and all injuries sustained by a patient simply because they happen to occur or manifest themselves after the negligent behavior. That is, the negligent act must have been the actual cause of the injury, not simply precede it in time, for a viable medical malpractice claim.

There are four basic elements of a compensable medical malpractice claim, and the burden is on the plaintiff to prove each of the elements. Cunis v. Brennan, 56 Ill.2d 372, 374 (1974).

1. Duty—the healthcare provider owed the injured patient a legal duty to observe the proper standard of care against which the defendant physician’s conduct is measured;

2. Breach—the healthcare provider’s actions deviated from or fell below the required standard of care thereby breaching the legal duty of care owed;

3. Causation—the healthcare provider’s breach of the required standard of care proximately caused or contributed to causing injury to the patient; and

4. Damages—the injured patient suffered damages because of the injuries.

“A plaintiff must present at least some evidence on every essential element of the cause of action or the defendant is entitled to judgment in his or her favor as a matter of law.” Sullivan v. Edward Hospital, 209 Ill.2d 100, 123 (2004). It is “the function of the jury, as the trier of fact, to determine whether the plaintiff” has proven all the essential elements of a medical malpractice claim. Steele v. Provena Hospitals, 996 N.E.2d 711, 722 (Ill. App. Ct. 2013).

Standard of Care

According to the Illinois Supreme Court, “the standard of care, also known as the standard of conduct, falls within the duty element.” Jones v. Chicago HMO Ltd. of Illinois, 730 N.E.2d 1119, 1129 (Ill. 2000). The Supreme Court has described the general standard of care as requiring “a physician to possess and apply that degree of knowledge, skill, and care which a reasonably well-qualified physician in the same or similar community would bring to a similar case under similar circumstances.” Purtill v. Hess, 111 Ill.2d 229, 242 (1986). In fact, the Supreme Court ruled that this is the applicable general standard of care for all medical professionals, including podiatry and dentistry. Advincula v. United Blood Services, 176 Ill.2d 1, 23 (1996).

The applicable standard of care in a case is dependent upon the qualifications of the defendant. A general practitioner is held to the standard of care for a similarly situated general practitioner, and likewise a specialist is held to the standard of care appropriate for a reasonably careful specialist in the particular specialty. For instance, in the Steele case, the defendant was an emergency room physician, so the relevant standard of care to which he was held was that of an emergency room physician with the skill, knowledge, and care appropriate for a reasonably careful emergency room physician. Steele, 996 N.E.2d at 722.

In Illinois medical malpractice cases, the plaintiff bears the burden of establishing the applicable standard of care to his or her cause of action. Advincula, 176 Ill.2d at 24. Expert medical testimony is generally required to establish the relevant standard of care and the defendant’s deviation from that standard, i.e., breach of the applicable standard of care. Walski v. Tiesenga, 72 Ill.2d 249, 256 (1975). The rationale for this requirement is “based on the simple fact that without expert testimony, jurors, not skilled in the profession, are not equipped to judge the professional’s conduct.” Studt v. Sherman Health Systems, 951 N.E.2d 1131, 1136 (Ill. 2011). “The standard recognizes that lay jurors are not equipped to determine what constitutes reasonable care in professional conduct without measuring the actor’s conduct against that of other professionals.” Advincula, 176 Ill.2d at 24.

Establishing the applicable standard of care is generally the role of other medical professionals “and it is, by definition, restricted to the time the defendant doctor was responsible for the patient’s care.” Steele, 996 N.E.2d at 722. The applicable standard of care is not established by “merely presenting expert testimony which offers an opinion as to correct procedure or which suggests, without more, that the witness would have conducted himself differently than the defendant.” Advincula, 176 Ill.2d at 24. To establish the standard of care in a case, the expert’s opinion must be based “upon recognized standards of competency in his profession.” Id.Expert opinion testimony is extremely useful in defining the relevant standard of care, but it remains the duty of the jury to evaluate all of the opinions and make the final determination. Borowski v. Von Solbrig, 60 Ill.2d 418, 423 (1975).

There are two recognized exceptions to the expert witness requirement for establishing the applicable standard of care and deviation therefrom. Jones, 730 N.E.2d at 1129. That is, in cases where (1) the defendant’s conduct is so grossly negligent or (2) the treatment is so common that a layperson can readily appraise it, the Illinois Supreme Court has stated that no expert medical witness testimony is required to establish the applicable standard of care. Advincula, 176 Ill.2d at 24.

Proximate Cause

Once the plaintiff has established that the defendant was negligent (breached the applicable standard of care), “the plaintiff must prove that the negligence was the proximate cause of his injury.” Borowski, 60 Ill.2d at 424. The legal principle of proximate cause encompasses two distinct requirements: (1) cause in fact and (2) legal cause. Lee v. Chicago Transit Authority, 152 Ill.2d 432, 455 (1992). Cause in fact focuses on whether the defendant’s conduct is a material factor in causing the injury. Majetich v. P.T. Ferro Construction Co., 389 Ill.App.3d 220, 224 (3d Dist. 2009). “A defendant’s conduct is a material factor in bringing about the injury if, absent the conduct, the injury would not have occurred.” Id.

Legal cause is established only if the defendant’s conduct is “so closely tied to the plaintiff’s injury that he should be held legally responsible for it.” Simmons v. Garces, 198 Ill.2d 541, 558 (2002). According to the Illinois Supreme Court, legal cause is a policy matter that focuses on the question: “How far should a defendant’s legal responsibility extend for conduct that did, in fact, cause the harm?” City of Chicago v. Beretta USA Corp., 821 N.E.2d 1099, 1127 (Ill. 2004). The Supreme Court framed the legal cause component of a proximate cause analysis as follows: “The proper inquiry regarding legal cause involves an assessment of foresee-ability, in which we ask whether the injury is of a type that a reasonable person would see as a likely result of his conduct.” Id.

A plaintiff must establish that it is more probably true than not true that the defendant’s negligence was a proximate cause of the injury. Borowski, 60 Ill.2d at 424. That is, the plaintiff must prove causation by the preponderance of the evidence. Holton v. Memorial Hospital, 679 N.E.2d 1202, 1207(Ill. 1997). The Illinois Supreme Court warned that liability “cannot be premised merely upon surmise or conjecture as to the cause of the injury.” Lee, 152 Ill.2d at 455.“Proximate cause in a medical malpractice case must be established by expert testimony to a reasonable degree of medical certainty, and the causal connection must not be contingent, speculative, or merely possible.” Ayala v. Murad, 367 Ill.App.3d 591, 601 (1st Dist. 2006). The Supreme Court instructed that “[i]ssues involving proximate cause are fact specific and therefore uniquely for the jury’s determination.” Holton, 679 N.E.2d at 1207.

Res Ipsa Loquitur

The doctrine of res ipsa loquitur is permitted in medical malpractice cases as a very narrow exception to the requirement of expert testimony in establishing causation.Edgar County Bank and Trust Co. v. Paris Hospital, 57 Ill.2d 298 (1974). Res ipsa loquitur is Latin for “the thing speaks for itself.” Essentially, it is a legal doctrine that allows plaintiffs to use circumstantial evidence to infer negligence, rather than having to rely on expert medical witness testimony.

The Illinois Supreme Court explained the rationale for res ipsa loquitur is “to allow proof of negligence by circumstantial evidence when the direct evidence concerning the cause of an injury is primarily within the knowledge and control of the defendant.” Metz v. Central Illinois Electric & Gas Co., 32 Ill.2d 446, 449 (1965).

According to the Illinois Supreme Court, the doctrine of res ipsa loquitur “permits the trier of fact to infer negligence based on circumstantial evidence….” Dyback v. Weber, 114 Ill.2d 232, 238 (1986). For res ipsa loquitur to apply, the plaintiff must establish (1) that the occurrence is one that ordinarily does not occur in the absence of negligence and (2) that the defendant had exclusive control of the instrumentality that caused the injury.” Id. at 242. The instrumentality need not have been in the “exclusive” control of the defendant at the relevant time. Lynch v. Precision Machine Shop, Ltd., 93 Ill.2d 266, 274 (1982). The required degree of control is a flexible standard—sufficient control, under the facts of a particular case, to infer that the defendant was responsible for the negligence, if any, that caused the injury. Douglas v. Board of Education, 127 Ill.App.3d 79, 83 (1st Dist. 1984).

When the necessary elements are established, “the occurrence itself, under res ipsa loquitur,” provides reasonable evidence that it occurred due to the defendant’s negligence. Metz, 32 Ill.2d at 449. “A plaintiff need not conclusively prove all the elements of res ipsa loquitur in order to invoke the doctrine. He need only present evidence reasonably showing that elements exist that allow an inference that the occurrence is one that ordinarily does not occur without negligence.” Dyback, 114 Ill.2d at 242.

Whether the doctrine applies in a particular case is a question of law for the court to decide. 735 ILCS 5/2-1113. “In making that determination, the court shall rely upon either the common knowledge of laymen, if it determines that to be adequate, or upon expert medical testimony, that the medical result complained of would not have ordinarily occurred in the absence of negligence on the part of the defendant.” Id. The statute adds: “Proof of an unusual, unexpected or untoward medical result which ordinarily does not occur in the absence of negligence will suffice in the application of the doctrine.” Whether the plaintiff has satisfied his or her burden of proof as to the required elements of the doctrine is a question of fact for the jury. McCleod v. Nel-Co Corp., 350 Ill.App. 216 (2d Dist. 1953).

Classic examples of scenarios in which res ipsa loquitur apply include situations where a foreign object with no remaining therapeutic purpose is unintentionally left inside the patient’s body following surgery and where the wrong limb is amputated, i.e., left leg instead of right one. Although both scenarios involve medical procedures, the average person understands that someone must have been negligent without the need for opinion testimony of an expert.

II. Filing Deadlines for Medical Malpractice Claims

Introduction to Statute of Limitations

Filing deadlines are among the most important preliminary issues to consider with respect to any potential legal case.  In particular, medical malpractice claims must be initiated by a specific deadline, or you may be completely barred from proceeding with your lawsuit, even if you have a valid claim that would otherwise entitle you to recover damages for your injuries.

These strict filing deadlines are referred to as a statute of limitations.  Each state establishes deadlines by which you must file various types of legal claims in order to preserve your right to have the substantive merits of your case heard.  In addition to filing deadlines for initiating the lawsuit itself, a statute of limitations commonly prescribes other deadlines by which certain actions must be performed, or once again, you may be barred from proceeding with your lawsuit.

A statute of limitations can often be tolled or extended.  Tolling refers to delaying or pausing the running (or active countdown) of the applicable time period.  For example, if a statute is tolled for 90 days, then the countdown towards the deadline is paused for that duration of time.  The deadline to carry out a specified action under a statute of limitations can also be extended.  For instance, many statutes of limitations add a specified number of years to the applicable deadline if the prospective defendant engaged in fraud or other intentional actions in an attempt to conceal his or her liability.

Statute of Limitations for Medical Malpractice Claims in Illinois

The applicable statute of limitations for filing a medical malpractice lawsuit in Illinois is set forth in 735 ILCS 5/13-212(a).  The statute states:

no action for damages for injury or death against any physician, dentist, registered nurse or hospital duly licensed under the law of this State … arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first….

Under the terms of the statute, plaintiffs with a medical malpractice claim have two years from the date they knew of their injury or are deemed to know of their injury to commence a lawsuit; otherwise, they will be time-barred from ever having their claim heard in court.Actual or imputed knowledge of the injury is the triggering event for the running of the limitations period under the statute.  Note that not all claims against every type of healthcare provider who could potentially be sued for medical malpractice are subject to the statute, only claims against physicians, dentists, registered nurses, and hospitals.

It is extremely important for potential plaintiffs to understand that they do not have an indefinite period of time in which to commence an action based on a medical malpractice claim.  Although they could interpret the quoted language from the statute as supporting that position, in addition to providing the limitations period, the statute also contains a repose period (see Section III in this article for discussion on statutes of repose) governing medical malpractice claims.  That is, the statute states that in no event shall an action “be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged” to have been the cause of the injury.  735 ILCS 5/13-212(a).  The foregoing provision is known as a statute of repose, which operates to bar claims from being brought later than four years from the date of the alleged negligence.

The myriad technical rules and nuances governing the period of time in which a medical malpractice claim may be brought are exceptionally complex and confusing for anyone other than an experienced Illinois medical malpractice attorney.  In order for potential plaintiffs to ensure the preservation of their right to prosecute their medical malpractice claim, it is advisable to contact an attorney who specializes in medical malpractice law at the earliest possible opportunity.

The Discovery Rule

Introduction

Every state has some version of the Discovery Rule.  In general, the Discovery Rule is an exception to the general statute of limitations.  It tolls the applicable statute of limitations until the injury stemming from the alleged medical negligence is or should have been discovered by the plaintiff.  Injuries resulting from medical negligence often do not materialize until years after the negligent act, omission, or decision.  The rationale underlying the Discovery Rule is to prevent the statute of limitations from barring a plaintiff from pursuing a medical malpractice claim until the injury has been discovered or should have been discovered.

The Discovery Rule in Illinois

Illinois’ medical malpractice statute of limitations itself incorporates the Discovery Rule in its general two-year limitations period.  It is embodied in the statute’s language that reads “the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury.”735 ILCS 5/13-212(a).  The language requires the plaintiff to have actually or constructively discovered the injury in order for the limitations period to being running.  That is the very essence of the Discovery Rule.

Under Illinois law, discovery of the injury alone is not sufficient to trigger the running of the limitations period.  The Illinois Supreme Court stated: “In medical malpractice cases in which the discovery rule is applied the cause of action accrues when the plaintiff knows or reasonably should know of an injury and also knows or reasonably should know that it was wrongfully caused.”  Moore v. Jackson Park Hospital, 95 Ill.2d 223, 232 (1983).The Court emphasized that the standard is not knowledge that the injury was caused by defendant’s negligent conduct, which is a conclusion that “must properly await legal determination.”  Nolan v. Johns-Manville Asbestos, 85 Ill.2d 161, 170 (1981).

Rather, the Supreme Court announced the rule for when the statute of limitations begins to run when the Discovery Rule is implicated as follows:

We hold, therefore, that when a party knows or reasonably should know both that an injury has occurred and that it was wrongfully caused, the statute begins to run and the party is under an obligation to inquire further to determine whether an actionable wrong was committed.  In that way, an injured person is not held to a standard of knowing the inherently unknowable, yet once it reasonably appears that an injury was wrongfully caused, the party may not slumber on his rights.  The question of when a party knew or reasonably should have known both of an injury and its wrongful cause is one of fact, unless the facts are undisputed and only one conclusion may be drawn from them.  Id. at 171.

Minors

The general two-year statute of limitations does not apply to minors.  Under Illinois law, the statute of limitations for medical malpractice claims on behalf of a minor is eight years from the date of the negligent act, omission, or decision[1]735 ILCS 5/13-212(b).It states that:

no action for damages for injury or death against any physician, dentist, registered nurse or hospital duly licensed under the laws of this State … shall be brought more than 8 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death where the person entitled to bring the action was, at the time the cause of action accrued, under the age of 18 years….

The statute further provides that “in no event may the cause of action be brought after the person’s 22nd birthday.”  Id.Accordingly, if the negligence occurred after the minor’s 14th birthday, then he or she does not have a full eight years in which to commence a medical malpractice action.

Legal Disability

735 ILCS 5/13-212(c) provides a tolling provision to the general medical malpractice statute of limitations contained in 735 ILCS 5/13-212(a).  It states:

If the person entitled to bring an action described in this Section is, at the time the cause of action accrued, under a legal disability other than being under the age of 18 years, then the period of limitations does not begin to run until the disability is removed.

The statute does not define what a legal disability is for purposes of the tolling provision.  To fill the void, courts have developed two standards in determining whether a person is under a legal disability.  First, “a person must be entirely without understanding or capacity to make or communicate decisions regarding his person and totally unable to manage his estate or financial affairs.”  Sille v. McCann Construction Specialties Co., 265 Ill.App.3d 1051, 1055 (1st Dist. 1994).  Second, a person is legally disabled if he or she “was incapable of managing her person or property and could not comprehend her rights or the nature of the act giving rise to her cause of action.”  Tardi v. Henry, 212 Ill.App.3d 1027, 1040-1041 (1st Dist. 1991).“The record must contain sufficient factual allegations from which one could conclude the individual seeking to be found legally disabled fell within one of these definitions.”  Bloom v. Braun, 739 N.E.2d 925, 933 (Ill. App. Ct. 1991).
A minor who is also under another legal disability at the time the cause of action accrued is subject to the legal disability tolling provision in Subsection (c) rather than the eight-year repose period in Subsection (b) for minors.  Bruso by Bruso v. Alexian Brothers Hospital, 687 N.E.2d 1014, 1016-1017 (Ill. 1997).  In answering this question, the Illinois Supreme Court stated: “We find that the plain language of section 13-212 evinces an intent to include minors who suffer from an additional legal disability within the purview of the tolling provision of subsection (c).”  Id. at 1016. The Court added, “[o]n its face, this provision clearly applies to plaintiffs who, like the plaintiff here, are minors and are also under another legal disability such as incompetency.”  Id.

Fraudulent Concealment

If a potential defendant fraudulently conceals the fact that a person has a medical malpractice claim against the potential defendant, the person having the claim has five years from the date he or she discovers that he or she has a claim against the defendant in which to commence an action.  735 ILCS 5/13-215.  The statute states:

If a person liable to an action fraudulently conceals the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within 5 years after the person entitled to bring the same discovers that he or she has such cause of action, and not afterwards.

Fraudulent concealment can potentially provide a person with an indefinite period of time in which to file a medical malpractice lawsuit as long as he or she does not discover or have reason to discover the concealment.A claim that has been fraudulently concealed is not subject to being barred by either the two-year statute of limitations or extinguished by the four-year statute of repose.  The five-year period in which to file a claim that has been concealed dictates this conclusion since the length of the term itself exceeds both the limitations and the repose periods, which means conceptually the concealed claim survives the expiration of both periods.

To establish fraudulent concealment, courts require that: “In general, where a plaintiff alleges that the fraudulent concealment of a cause of action has tolled the statute of limitations, it is necessary to show affirmative acts by the defendant which were designed to prevent, and in fact did prevent, the discovery of the claim.”  Foster v. Plaut, 625 N.E.2d 198, 203 (1st Dist. 1993).  Silence by the defendant coupled with the plaintiff’s failure to discover a cause of action do not amount to fraudulent concealment.  Id.Fraudulent concealment requires that the defendant made “representations or performed acts which were known by it to be false, with the intent to deceive the plaintiff, and upon which the plaintiff detrimentally relied.”  Harvey v. Harris Trust & Savings Bank, 73 Ill.App.3d 280, 287 (1st Dist. 1979).

Additionally, “even if the plaintiff can show that the defendant made fraudulent misrepresentations, the statute of limitations will not be tolled where the plaintiff could have discovered the cause of action with the exercise of ordinary diligence.”  Foster, 625 N.E.2d at 203.  Fraudulent concealment provides a plaintiff with an extraordinary remedy, i.e., potentially indefinite period in which to file suit, so courts have set a high standard to establishing its existence.

[1] The Illinois Supreme Court refers to 735 ILCS 5/13-212(b) as a statute of repose, not a statute of limitations.  Brucker v. Mercola, 227 Ill.2d 502, 537 (2007).  Notice the triggering event for starting of the eight-year period is the occurrence of the negligent act, omission, or decision, so the period can expire even before the injured party knows of or has reason to know of the injury, i.e., a statute of repose.  (see Section III in this article for discussion on statutes of repose)

III.  Statute of Repose—Absolute Bar to Recovery

Introduction

Statutes of repose are procedurally related to statutes of limitations.  Both types of statutes involve the countdown towards a deadline by which time a specified action must be performed.  If the deadline is not met, they can both bar any further prosecution of a case without regard to the actual substantive merits of the claim.

Although they can be thought of as being related, there are critical differences between them.  The manner in which the running of each statute is triggered represents a subtle but very significant difference between the two types of statutes.  A statute of limitations is generally triggered when the cause of action accrues[1].

In contrast, a statute of repose is triggered upon the occurrence of a specified event regardless of whether the cause of action has accrued.  In medical malpractice cases, that event is usually, but not always, the medical procedure that is alleged to have caused the subsequent injury.  The statute of repose begins to run as of the date of the procedure or other triggering event regardless of whether the cause of action has accrued.  Whereas, the corresponding statute of limitations typically does not begin to run until the plaintiff knows about the injury or deemed to know and all other elements of a viable cause of action exist.

Additionally, unlike a statute of limitations, a statute of repose can run and bar a right of action before it even exists.  A statute of repose serves as an absolute bar to recovery.  Once it runs, it extinguishes the claim entirely even if the claim is not yet time-barred by the applicable statute of limitations.  The statute of repose controls in that scenario.

While statutes of limitations are widely known and even understood by much of the general public, the same does not hold true with respect to statutes of repose.  In fact, even many practicing lawyers do not fully appreciate the critical differences between the two.  This is likely due to the fact that statutes of repose are relatively rare.  Every cause of action in every state is governed by an applicable statute of limitations, but relatively few causes of action are also covered by a statute of repose.

Statute of Repose in Illinois

Medical malpractice claims in Illinois are subject to a four-year statute of repose.  735 ILCS 5/13-212(a).  The statute states that in “no event shall such action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death.”  As a statute of repose, the four-year repose period begins on the date of the alleged negligence and expires four years from that date regardless of whether the patient has discovered or should have discovered the injury.

The Illinois Supreme Court acknowledged that the medical malpractice statute of repose operates to bar claims even before some injured parties are aware that they are injured, but that is the effect of a statute of repose.  Mega v. Holy Cross Hospital, 111 Ill.2d 416, 422 (1986).  The Discovery Rule cannot toll or extend the four-year period under the statute of repose.  Id. at 428.  To allow otherwise would defeat the purpose of the statute.  Id. at 422.  Once the four-year repose period has expired, the injured party no longer has a recognized right of action, “and the harm that has been done is damnum absque injura—a wrong for which the law affords no redress.”  Goodman v. Harbor Market, Ltd., 663 N.E.2d 13, 18 (1st Dist. 1996).

In discussing the legislative purpose of the statute of repose, the Illinois Supreme Court instructed: “The period of repose gives effect to a policy different from that advanced by a period of limitations; it is intended to terminate the possibility of liability after a defined period of time, regardless of a potential plaintiff’s lack of knowledge of his cause of action.”Mega v. Holy Cross Hospital, 111 Ill.2d 416, 422 (1986).

[1] The Illinois Supreme Court held that a tort cause of action accrues when all elements are present and legally actionable: duty, breach, and resulting injury or damage.  West American Insurance Co. v. Sal E. Lobianco Son, Co., 69 Ill.2d 126, 129-130 (1977).

IV. Immunities and Limitations on Liability

Sovereign Immunity

Introduction

Sovereign immunity is the legal doctrine that holds the government is immune from lawsuits or other legal actions except when and to the extent it consents to them.  The doctrine traces its origins back to English common law where the king made the laws, so the king could do no wrong.  As a result, there could be no valid claim against a government entity.  The doctrine crossed the ocean and found its way to the United States in the early 1800s, and it was soon adopted in some form in nearly every state.  Today, most states have either limited or eliminated, to some extent, sovereign immunity by judicial action or statute.

Sovereign Immunity in Illinois

Sovereign immunity in Illinois has been abolished by Article XIII, Section 4 of the Illinois Constitution, which reads: “Except as the General Assembly may provide by law, sovereign immunity in this State is abolished.”But as it is authorized to do under the foregoing provision, the General Assembly has reinstituted sovereign immunity with respect to the State of Illinois through the enactment of the State Lawsuit Immunity Act, 745 ILCS 5/0.01, et seq., which reads in pertinent part: “Except as provided in the Illinois Public Labor Relations Act, the Court of Claims Act, the State Officials and Employees Ethics Act, and Section 1.5 of this Act, the State of Illinois shall not be made a defendant or party in any court.”  745 ILCS 5/1.

Actions against the government in Illinois are divided into two broad categories, viz., those against (1) the State of Illinois and (2) local public entities.  Under Illinois law, actions against the State of Illinois are governed by the Court of Claims Act, 705 ILCS 505/1, et seq., and the State Lawsuit Immunity Act, 745 ILCS 5/0.01, et seq.  Actions against local public entities are subject to the Local Government and Governmental Employees Tort Immunity Act, 745 ILCS 10/1-101, et seq.

Actions Against the State of Illinois

Lawsuits against the State of Illinois are under the exclusive jurisdiction of the Court of Claims.  The Court consists of seven judges, who are attorneys licensed to practice law in Illinois, and are appointed by the Governor with the advice and consent of the Senate.  705 ILCS 505/1.  One of the judges must be appointed by the Chief Justice.  Id.

The Court has exclusive jurisdiction to hear and determine cases involving nine enumerated matters, which specifically includes all “claims against the State for damages in cases sounding in tort, if a like cause of action would lie against a private person or corporation in a civil suit….”  705 ILCS 505/8(d). Medical malpractice is a type of tort that deals with professional negligence, so under the statute, medical malpractice claims against Illinois fall under the jurisdiction of the Court of Claims.Medical malpractice claims against Illinois “must be filed within 2 years after it first accrues….”  705 ILCS 505/22(h).

The Illinois Supreme Court has instructed that whether an action is in reality against Illinois and thus must be brought in the Court of Claims depends on the issues involved and the relief sought.  Healy v. Vaupel, 133 Ill.2d 295, 308 (1990).  That is, a plaintiff cannot evade the exclusive jurisdiction of the Court of Claims by identifying a party who is not subject to the Court’s jurisdiction as the defendant when in substance the claim is against the State.  Senn Park Nursing Center v. Miller, 104 Ill.2d 169, 187 (1984).

Although the State of Illinois can be sued by virtue of the Court of Claims Act, it imposes strict requirements and limitations on lawsuits brought under the Act.  Within one year from the date the injury was received or cause of action accrued[1], a plaintiff who is about to commence any action in the Court of Claims for damages due to personal injury must file a Notice of Intent of Claim for Personal Injury[2]in the office of the Attorney General and in the office of the Clerk of the Court of Claims.  705 ILCS 505/22-1.  The Notice must contain the (1) name and residence of the person injured, (2) date and about the hour of the accident, (3) place and location where accident occurred, (4) brief description of how the accident occurred, and (5) address of the attending physician.  Id.If the plaintiff files his or her claim within one year of its accrual, there is no requirement to file the statutory Notice.  Id.Failure to file the required Notice shall result in the dismissal of any action commenced against the State of Illinois, and the plaintiff shall “be forever barred from further action in the Court of Claims” based on the dismissed claim.  705 ILCS 505/22-2.

Even if a plaintiff is successful in his or her lawsuit against the State, recoverable damages in a tort action under the Court of Claims Act are capped at $100,000.  705 ILCS 505/8(d).  In light of the strict requirements and limitation on damages governing actions brought in the Court of Claims, some plaintiffs attempt to avoid the Court of Claims and file suit in circuit court.  This can be achieved given the right set of facts.

In Jinkins v. Lee, 807 N.E.2d 411 (Ill. 2004),the plaintiff was successful in bringing suit against two state-employed doctors in circuit court, rather than the Court of Claims.  The plaintiff filed a medical malpractice claim in circuit court against the defendants, a board-certified psychiatrist and a licensed clinical psychologist, employed at a state-operated medical facility.  The defendants argued that the complaint could only be brought in the Court of Claims since it was a tort action against the State.

The Illinois Supreme Court rejected the defendants’ argument, stating “sovereign immunity does not bar plaintiff’s complaint and subject matter jurisdiction lies in the circuit court.”  Id. at 423.  The Court applied the so-called “source-of-the-duty” test in reaching its conclusion.  The Court described the test as follows:

A State employee is not immunized by sovereign immunity for his own acts of negligence merely because he was acting within the scope of his employment. [T]he proper inquiry is to analyze the source of the duty the employee is charged with breaching in committing the allegedly negligent act. Where the charged act of negligence arose out of the State employee’s breach of a duty that is imposed on him solely by virtue of his State employment, sovereign immunity will bar maintenance of the action in circuit court.  Conversely, where the employee is charged with breaching a duty imposed on him independently of his State employment, sovereign immunity will not attach and a negligence claim may be maintained against him in circuit court.Id. at 418. (quoting Currie v. Lao, 148 Ill.2d 151, 158-160 (1992))

Applying the test in Jinkins, the Court concluded that the source of the defendants’ duty owed to the patient was based upon “their status as mental health professionals, rather than their employment by the state.”  Id. at 420.  They were using their professional judgment and not performing a uniquely governmental function.  Id. at 420-421.

Actions Against Public Local Entities

Lawsuits against public local entities are governed by the Local Government and Governmental Employees Tort Immunity Act.  The term ‘public local entities’is defined broadly to include, but not limited to, a county, township, municipality, municipal corporation, and school district. (see 745 ILCS 10/1-206 for full list).  In general, immunity under the Act is based upon specific government functions (see 745 ILCS 10/Art. VI for covered functions).  The Act also immunizes local public entities from liability for payment of punitive or exemplary damages.  745 ILCS 10/2-102.

An action against a local public entity or any of its employees must be “commenced within one year from the date that the injury was received or the cause of action accrued.”  745 ILCS 10/8-101(a).Additionally, an action must be commenced within two years “after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury” for which damages are sought.  745 ILCS 10/8-101(b).  Finally, the statute of repose for actions against a local public entity or any of its employees is four years from the date of the alleged negligence.  Id.

The immunity provided by the Act is for ordinary negligence.  Willful and wanton conduct is not granted immunity under the Act.  745 ILCS 10/2-202.  The term ‘willful and wanton conduct’ is defined as “a course of action which shows an actual or deliberate intention to cause harm or which, if not intentional, shows an utter indifference to or conscious disregard for the safety of others or their property.”  745 ILCS 10/1-210.

Good Samaritan Act

Introduction

The general rule in the United States holds that an individual is under no legal duty to provide assistance to someone in need during an emergency.  While there may, for some, be a moral obligation to aid others in emergency situations, there is no corresponding legal duty to do so.  It is a different story if an individual is responsible for creating the emergency situation from which a victim needs saving or an individual is under a pre-existing duty to save others from a specific situation (on-duty lifeguard has a duty to recuse swimmers under his or her watch).

In response, states have enacted Good Samaritan laws.  While they do not impose a legal duty to help others, they do eliminate a potential barrier for some in coming to the aid of others during an emergency.  Good Samaritan laws are designed to provide immunity from civil liability for individuals who voluntarily render assistance to those in need during an emergency situation.  As a public policy matter, society does not want concerns about potential civil liability stopping individuals from helping others in need of emergency assistance.

Good Samaritan Act in Illinois

The Illinois Good Samaritan Act is contained in 745 ILCS 49/.  The statute describes the legislative purpose of the Act as follows:

The General Assembly has established numerous protections for the generous and compassionate acts of its citizens who volunteer their time and talents to help others. These protections or Good Samaritan provisions have been codified in many Acts of the Illinois Compiled Statutes. This Act re-codifies existing Good Samaritan provisions. Further, without limitation the provisions of this Act shall be liberally construed to encourage persons to volunteer their time and talents.

The Illinois Good Samaritan Act does not provide broad coverage to everyone as in some states.  Rather, it contains 24 separate provisions granting immunity from civil damages for various categories of healthcare professionals, first-responders, and specific situations. However, in contrast to most other states that have enacted their own Good Samaritan statutes, Illinois’ does not contain a general provision for non-medical Good Samaritans.

To qualify for protection under the Act, three requirements, which generally apply to each of the various provisions granting immunity, must be satisfied: (1) there must be an emergency situation, (2) the Good Samaritan must act in good faith[3] and without compensation, and (3) the Good Samaritan cannot have acted with willful and wanton misconduct.  745 ILCS 49/.

The Good Samaritan Act does not define the term ‘good faith.’  In 2008, the Illinois Appellate Court, First District provided a definition of the term for purposes of the Act in Hernandez v. Alexian Brothers Health System, 384 Ill.App.3d 510 (1st Dist. 2008).  The Court pointed to the fact that the Illinois Supreme Court “has held that ‘good faith’ is an unambiguous phrase that means ‘honest, lawful intent,’ or ‘is the opposite of fraud and bad faith.’”  Id. at 520. (quoting People v. Guagliata, 362 Ill. 427, 432 (1936))

As a representative example of the Good Samaritan Act provisions, the physician one reads:

Any person licensed under the Medical Practice Act of 1987 or any person licensed to practice the treatment of human ailments in any other state or territory of the United States who, in good faith, provides emergency care without fee to a person, shall not, as a result of his or her acts or omissions, except willful or wanton misconduct on the part of the person, in providing the care, be liable for civil damages.745 ILCS 49/25.

In a case of first impression in Illinois, the Illinois Appellate Court, First District held that the “Good Samaritan statute is applicable to emergencies occurring in a hospital if the other conditions stated” in the statute are satisfied.  Johnson v. Matviuw, 176 Ill.App.3d 907, 918 (1st Dist. 1988).  The Court reasoned that the very terms of the statute itself dictate its conclusion, stating it “is beyond this court’s power to limit the ordinary meaning of the word ‘emergency’ by adding ‘except when occurring in a hospital.’”  Id. at 917.  The Court went on to opine that the General Assembly can change the scope of the statute if it did not intend for it to apply to hospital settings, but as the statute currently appears, it makes no distinction between emergencies inside or outside hospitals.  Id. at 918.

Additional Immunities and Limitations on Liability

There are numerous statutes providing some form of immunity or limitation on liability for various healthcare practitioners, emergency personnel, healthcare related entities, and specific scenarios scattered throughout the Illinois Compiled Statutes.  Below is a non-exhaustive list of some common ones that medical malpractice plaintiffs may encounter while pursuing their claim.

[1] “Under the discovery rule, a party’s cause of action accrues when the party knows or reasonably should know of an injury and that the injury was wrongfully caused.”  Clay v. Kuhl, 189 Ill.2d 603, 608 (2000).

[2] See page 71 of 2016 Illinois Court of Claims: Rules and Statutes for official Notice form.

Available at https://www.cyberdriveillinois.com/publications/pdf_publications/cc_pub4.pdf

[3] Of the 24 individual grants of immunity in the Act, only 745 ILCS 49/5 (Emergency telephone instructions) and 745 ILCS 49/40 (Nurses; exemption from civil liability for services performed without compensation) do not contain the term ‘good faith.’

V. Required Elements of a Medical Malpractice Complaint

Under the Code of Civil Procedure, the “party commencing an action shall be called the plaintiff.”  735 ILCS 5/2-401(a). The initial pleading by the plaintiff is referred to as a complaint.735 ILCS 5/2-602. In order to commence a medical malpractice lawsuit in an Illinois state court, the plaintiff must file a complaint with the appropriate court.  735 ILCS 5/2-201(a).  The complaint “shall contain in the caption the words ‘at law,’ ‘in chancery,’ ‘in probate,’ ‘small claim,’ or other” appropriate designation.  Rule 132 of the Illinois Supreme Court Rules.  In general, the content, format, and procedures regarding complaints are governed by 735 ILCS 5/Art. II, Part 6 Pleading.

The complaint “shall contain a plain and concise statement of the pleader’s cause of action….”  735 ILCS 5/2-603(a).  Subsection (b) provides that each “separate cause of action upon which a separate recovery might be had shall be stated in a separate count … and each count … shall be separately pleaded, designated and numbered, and each shall be divided into paragraphs numbered consecutively, each paragraph containing, as nearly as may be, a separate allegation.”  The complaint must set forth the names of all parties for and against whom relief is sought.735 ILCS 5/2-401(c).Rule 10 of the Illinois Supreme Court Rules sets forth the size and technical specifications for the complaint, and Rule 131 addresses the required form of documents, i.e., legibility, titles, etc.

The plaintiff may plead as many causes of action in the complaint as he or she may have, and each must be separately designated and numbered.  735 ILCS 5/2-613(a).  If the plaintiff “is in doubt as to which of two or more statements of fact is true, he or she may, regardless of consistency, state them in the alternative or hypothetically in the same or different counts….”  735 ILCS 5/2-613(b).  “A bad alternative does not affect a good one.”  Id.

Every count in the complaint “shall contain specific prayers for the relief to which the pleader deems himself or herself entitled except that in actions of injury to the person, no ad damnum may be pleaded except to the minimum extent necessary to comply with the circuit rules of assignment where the claim is filed.”  735 ILCS 5/2-604.  No ad damnum means that no specific dollar amount for damages sought is included in a medical malpractice complaint.  If a medical malpractice complaint contains an ad damnum, “on motion of a defendant or on the court’s own motion” the complaint shall be dismissed without prejudice.  Id.Dismissed without prejudice means that the case may be refiled once the complaint has been corrected.

The Illinois Supreme Court has made it clear that Illinois is a “[f]act pleading, in contrast to notice pleading[1],” state.  Adkins v. Sarah Bush Lincoln Health Center, 129 Ill.2d 497, 518 (1989).  As such, a “complaint must allege sufficient facts to bring plaintiff’s claim for a remedy within the scope of a legally recognized cause of action.”  Id.  It is essential that facts and not conclusions are to be pleaded.  Id. at 519.  A motion to dismiss will be granted if the complaint states only conclusions, without supporting facts, regardless of whether they inform the defendant of the general nature of the claims against him or her.  Knox College v. Celotex Corp., 88 Ill.2d 407, 426 (1981).

735 ILCS 5/2-603(c) provides that the complaint “shall be liberally construed with a view to doing substantial justice between the parties.  “Despite the requirement of fact pleading, courts are to construe pleading liberally to do substantial justice between the parties.”  Lempa v. Finkel, 663 N.E.2d 158, 164 (Ill. App. Ct. 1996).

VI. Certificate of Merit

The Illinois Supreme Court observed that the purpose of the Certificate of Merit requirement is “to reduce the number of frivolous suits that are filed and to eliminate such actions at an early stage, before the expenses of litigation have mounted.”  Deluna v. St. Elizabeth’s Hospital, 147 Ill.2d 57, 65 (1992).  The Supreme Court noted that only claims “that allege injuries by reason of healing art malpractice require an attorney’s affidavit and a health professional’s report….”  Brucker v. Mercola, 227 Ill.2d 502, 517 (2007).  As such, the combined meaning of the terms ‘healing art’ and ‘malpractice’ is critical to the determination of whether the Certificate of Merit requirements apply to a particular case.  Id.

Courts apply a three-part test in determining the applicability of the Certificate of Merit requirements as follows: (1) whether the standard of care involves procedures not within the grasp of the ordinary lay juror, (2) whether the activity is inherently one of medical judgment, and (3) the type of evidence that will be necessary to establish plaintiff’s case.  Id.

Requirements

In a medical malpractice action under Illinois law in which the plaintiff seeks damages for injuries or death, “the plaintiff’s attorney or the plaintiff, if the plaintiff is proceeding pro se[2], shall file an affidavit” with the complaint.  735 ILCS 5/2-622.The affidavit must declare that the attorney or plaintiff, if proceeding pro se, has consulted with a health professional who “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….”  735 ILCS 5/2-622(a)(1).

In addition, the attorney or plaintiff, as the case may be, must declare in the affidavit that he or she “has concluded on the basis of the reviewing health professional’s review and consultation that there is a reasonable and meritorious cause for filing of such action.”  Id.The affidavit requirement is commonly referred to as a Certificate of Merit.  Thus, 735 ILCS 5/2-622 requires the filing of an attorney (or plaintiff if pro se) affidavit and a health professional’s written report in order to proceed with a medical malpractice claim.

For purposes of the Certificate of Merit, the health professional consulted must be someone whom the attorney or plaintiff reasonably believes:

  1. is knowledgeable in the relevant issues involved in the particular action;
  1. practices or has practiced within the last 6 years in the same area of health care or medicine that is at issue in the particular action; and
  1. is qualified by experience or demonstrated competence in the subject of the case. 735 ILCS 5/2-622(a)(1).

If the defendant is a “physician licensed to treat human ailments without the use of drugs or medicines and without operative surgery, a dentist, a podiatric physician, a psychologist, or a naprapath, the written report must be from a health professional licensed in the same profession, with the same class of license, as the defendant.”  Id.  With respect to all other categories of defendants, “the written report must be from a physician licensed to practice medicine in all its branches. In either event, the affidavit must identify the profession of the reviewing health professional.”Id.

A copy of the written report must be attached to the affidavit, and the report must clearly identify “the plaintiff and the reasons for the reviewing health professional’s determination that a reasonable and meritorious cause for the filing of the action exists.”  Id.A separate Certificate of Merit and written report must be filed for each defendant who has been named in the complaint.735 ILCS 5/2-622(b).

In the event the plaintiff’s attorney or plaintiff is unable to comply with the health professional consultation requirement in Subsection 1 of 735 ILCS 5/2-622(a) because of the statute of limitations, Subsection 2 requires the attorney or plaintiff to declare that fact in an affidavit attached to the complaint.  The Certificate of Merit along with the written report must be filed within 90 days after filing the complaint. 735ILCS 5/2-622(a)(2).

In the event a defendant has not complied with a request to examine and copy relevant records within 60 days of receipt of the records request, the required affidavit must declare that defendant has failed to produce the records as requested.  735 ILCS 5/2-622(a)(3).  The Certificate of Merit and written report must be filed within 90 days after receipt of the requested records.  Id.

735 ILCS 5/2-622(c) states that if “the plaintiff intends to rely on the doctrine of ‘res ipsa loquitur’ … the certificate and written report must state that, in the opinion of the reviewing health professional, negligence has occurred in the course of medical treatment.”  The statute also requires the plaintiff’s attorney or plaintiff to “certify upon filing the complaint that he is relying on the doctrine of ‘res ipsa loquitur’.”  Id.

Dismissal for Failure to Comply

Failure to file the Certificate of Merit as required by the statute constitutes grounds for dismissal of the complaint.  735 ILCS 5/2-622(g).  A 2014 Illinois Appellate Court, Second District case underscores the importance of complying with the Certificate of Merit requirement as well as the pitfall of attempting to prosecute a medical malpractice case pro se.

In McDonald v. Lipov, 2014 IL App (2d) 130401, the plaintiff filed a pro se complaint alleging medical malpractice.  The trial court granted three extensions so that she could comply with the Certificate of Merit and written report requirements of 735 ILCS 5/2-622, yet she still failed to do so.  The court eventually dismissed her amended complaint with prejudice, and she appealed.  The Appellate Court held that the trial court did not abuse its discretion in dismissing the malpractice claims with prejudice[3]McDonald v. Lipov, No. 2-10-0518 (2011) (unpublished opinion referred to as ‘McDonald I’ by the Court in the published 2014 McDonald opinion).

The plaintiff subsequently filed a second amended complaint containing, among other claims, nine claims from her amended complaint that had previously been dismissed with prejudice.  The trial court dismissed these claims yet again.  The Appellate Court once more affirmed the lower court’s dismissal of the medical malpractice claims.  McDonald, 2014 Il App (2d) 130401 at 15.

The plaintiff in McDonald never got the opportunity to have the substantive merits of her medical malpractice claims heard because she failed to comply with the procedural requirement of timely filing a Certificate of Merit.  Without the assistance of professional legal counsel, the plaintiff apparently failed to appreciate the necessity of strictly complying with the statutory requirements in order to proceed with her medical malpractice claims.

[1] Notice pleading is a system of pleading in which the essential function of pleadings is merely to put parties on notice of the general issues in the case.  In this type of pleading system, complaints may contain claims in general terms without providing sufficient facts to support them.

[2] Pro se is Latin for “for oneself” or “on one’s own behalf.”  It refers to a situation in which a litigant proceeds without a lawyer; instead, the litigant acts as his or her own lawyer.

[3] Dismissing a complaint with prejudice means that it is dismissed permanently, and the claim can never be brought again.

VII. Medical Expert Witnesses

Introduction

In medical malpractice cases, expert witnesses are nearly always required.  The medical issues and related facts are generally far too complex for non-medical professionals to understand without the aid of expert medical witnesses.  As a general rule of law, expert witnesses are needed to (1) establish the applicable standard of care, (2) help educate the judge and jury (or in furtherance of settlement negotiations) about what the defendant healthcare practitioner should have done or refrained from doing under the specific circumstances in the case, and (3) whether the defendant’s conduct breached the recognized standard of care for the profession or specialization.  Additionally, expert witnesses are needed to help determine whether the defendant’s medical negligence caused the plaintiff’s injury.

The Illinois Supreme Court affirmed that the general rule applies to medical malpractice claims in Illinois.  Expert medical testimony is generally required to establish the relevant standard of care and the defendant’s deviation from that standard, i.e., breach of the applicable standard of care.  Walski v. Tiesenga, 72 Ill.2d 249, 256 (1975).  The rationale for this requirement is “based on the simple fact that without expert testimony, jurors, not skilled in the profession, are not equipped to judge the professional’s conduct.”  Studt v. Sherman Health Systems, 951 N.E.2d, 1131, 1136 (Ill. 2011).  “The standard recognizes that lay jurors are not equipped to determine what constitutes reasonable care in professional conduct without measuring the actor’s conduct against that of other professionals.”  Advincula v. United Blood Services, 176 Ill.2d 1, 21 (1996).

Qualifying as Expert Medical Witness in Illinois

The general rule under Illinois law is that expert witness testimony is admissible if (1) the proffered expert is qualified by knowledge, skill, experience, training, or education; and (2) the testimony will assist the trier of fact in understanding the evidence.  Snelson v. Kamm, 787 N.E.2d 796, 809 (Ill. 2003).

The Illinois Supreme Court established a three-step analysis to be performed in determining whether an expert medical witness is qualified and competent to provide opinion testimony in a particular case.  Purtill v. Hess, 111 Ill.2d 229, 242-243 (1986).  The Purtill Court’s three steps are:

  1. the expert must be a licensed member of the school of medicine about which he proposes to testify;
  1. the expert must prove his familiarity with other physicians’ methods, procedures, and treatment; and
  1. once the foregoing foundational requirements are established, the trial court has the discretion to determine whether the physician is qualified and competent to state his opinion regarding the standard of care.

When physicians are involved as the potential witness and defendant, the first step is relatively easy to establish.  Under Illinois law, “a physician is licensed to practice medicine in all its branches [225 ILCS 60/2]….”  Gill v. Foster, 626 N.E. 190, 196 (Ill. 1993).  In Gill, the plaintiff’s expert was a board certified general surgeon who offered testimony about the applicable standard of care and deviation therefrom with respect to the defendant radiologist.  The fact that both were licensed physicians led the Court to easily conclude the expert witness satisfied the first step in the Purtillanalysis.  Id.

With respect to the second step, the expert witness was not a practicing radiologist nor board certified in radiology.  He testified that he was familiar with the applicable standard of care for radiologists as a practicing surgeon, but he conceded that he consulted with radiologists in complicated cases.Both the trial court and appellate court ruled that the expert witness did not meet the second step in the expert qualification analysis and thus barred his testimony.

The Illinois Supreme Court disagreed and stated that “the trial court abused its discretion.”Id.The fact that the expert witness occasionally relied on the opinion of radiologists does not indicate that he lacks the qualifications to testify; rather, it only goes to the weight of his opinion, not its admissibility.  Id.  The Court made it clear that “a plaintiff’s medical expert need not also specialize in the same area of medicine as the defendant doctor in order for the expert to qualify as to the appropriate standard of care.”  Id.

As for the final step in the expert witness qualification analysis, if “the plaintiff fails to satisfy either of the foundational requirements of Purtill, the trial court must disallow the expert’s testimony.”  Jones v. O’Young, 607 N.E.2d 224, 226 (Ill. 1992).  On the other hand, if the first two steps are satisfied, then the trial court must compare the expert’s qualifications with the specific issue in the case to determine whether the expert is qualified to offer opinion testimony and whether his or her testimony is admissible.  Id.  In Jones, the Illinois Supreme Court introduced the following guidance for trial courts in this final step of the Purtillanalysis.

By hearing evidence on the expert’s qualifications and comparing the medical problem and the type of treatment in the case to the experience and background of the expert, the trial court can evaluate whether the witness has demonstrated a sufficient familiarity with the standard of care practiced in the case. The foundational requirements provide the trial court with the information necessary to determine whether an expert has expertise in dealing with the plaintiff’s medical problem and treatment. Whether the expert is qualified to testify is not dependent on whether he is a member of the same specialty or sub-specialty as the defendant but, rather, whether the allegations of negligence concern matters within his knowledge and observation.Id.

According to the Supreme Court, it is within the sound discretion of the trial court whether to admit expert testimony on an issue, and its determination will not be reversed on appeal absent an abuse of discretion.  Snelson, 787 N.E.2d at 809.The standard for a finding of abuse of discretion is that no reasonable person would take the view adopted by the trial court.  Vanderhoof v. Berk, 47 N.E.3d 1080, 1102 (1st Dist. 2015).

Once the expert witness has been qualified to testify in a case by the trial court, then the defense can direct the jury’s attention to any alleged deficiencies in the expert’s competency to testify or the opinion testimony itself.  Jones, 607 N.E.2d at 226.  That goes to the weight afforded to the expert’s testimony, not its admissibility.  In providing its rationale for qualifying experts based on their knowledge, skills, experience, training, or education rather than solely on practice specialty, the Illinois Supreme Court stated: “Restricting the qualification of experts to those physicians who are members of the same specialty or sub-specialty as the defendant would only upset the balance necessary to an adversarial system without any compensating benefit. Accordingly, we reaffirm this court’s position in Purtill without qualification.”Id.

Admissibility of Expert Testimony About Scientific Principles and Discoveries

Introduction

Trial courts must decide whether to admit expert opinion testimony about scientific principles and discoveries.  Simply put, courts must guard against allowing so-called junk science into evidence.  To achieve that objective, the overwhelming majority of states[1] follow one of two general standards that have their origins in federal court cases, viz., the Frye and Daubert standards.

Under the Frye standard, expert testimony that is based upon a new scientific principle or discovery is admissible only if the principle or discovery is “sufficiently established to have gained general acceptance in the particular field in which it belongs.”  Frye v. United States, 293 F. 1013, 1014 (D.C. Cir. 1923).

In comparison, the Daubert standard requires the trial court to serve as a gatekeeper regarding the admissibility of all expert testimony, not just testimony based upon a new scientific principle.  The court must make a determination whether the proposed testimony is both reliable and relevant by analyzing (1) whether the reasoning or methodology upon which the testimony is based is scientifically valid and (2) whether that reasoning or methodology can properly be applied to the facts in the case.  Daubert v. Merrell Dow Pharmaceuticals, Inc., 509 U.S. 579 (1993).

Admissibility of Scientific Principles and Discoveries in Illinois

The starting point for admissibility analysis of expert opinion testimony regarding scientific principles and discoveries is Rule 702 of the Illinois Rules of Evidence, which states:

If scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or to determine a fact in issue, a witness qualified as an expert by knowledge, skill, experience, training, or education, may testify thereto in the form of an opinion or otherwise. Where an expert witness testifies to an opinion based on a new or novel scientific methodology or principle, the proponent of the opinion has the burden of showing the methodology or scientific principle on which the opinion is based is sufficiently established to have gained general acceptance in the particular field in which it belongs.

Illinois uses the Frye standard.  Donaldson v. Central Illinois Public Service, 767 N.E.2d 314, 323 (Ill. 2002).  The Illinois Supreme Court reconfirmed that fact in Donaldson as follows: “Illinois law is unequivocal: the exclusive test for the admission of expert testimony is governed by the standard first expressed in” Frye. Id.In Donaldson, the Court also clarified precisely what the Frye standard is in Illinois[2].  According to the Court, under the Frye standard as it exists in Illinois, “[t]rial judges decide the general acceptance of the technique; a jury decides whether it will accept the expert’s conclusion which is based on that technique.”  Id.

In addition, the Illinois Supreme Court stated that trial courts “will apply the Frye test only if the scientific principle, technique, or test offered by the expert to support his or her conclusion is ‘new’ or ‘novel.’”  In re Marriage of Bates, 819 N.E.2d 714, 730 (Ill. 2004).  As such, a Frye test analysis is not performed for every expert witness.  As an example, “DNA analysis does not require a Frye hearing because the principle has been found to be generally accepted.”  Donaldson, 767 N.E.2d at 325.  For purposes of the Frye test, scientific evidence is considered new or novel if it is “original or striking” or does not resemble anything formerly known or used.  Id.

It must be noted that the Appellate Court of Illinois, First District[3] has held a treating physician’s opinion testimony regarding the cause of his or her patient’s condition is not novel and thus no Frye analysis is required.  Wartalski v. JSB Construction and Consulting Company, 892 N.E.2d 122, 128(1st Dist. 2008).  A treating physician’s opinion as to the cause of his or her patient’s injury constitutes non-novel medical testimony that does not warrant a Frye hearing to determine its admissibility.  Id.Notably, the defendants argued that the methodology used by the treating physicians in the case is not generally accepted, yet the Court nevertheless ruled that a Frye hearing was not required because the plaintiff “presented the testimony of his own treating physicians.”  Id. at 129.  As of the date of this article, it does not appear that the other four Appellate Courts or the Illinois Supreme Court have ruled on this specific issue yet.

[1]In fact, only Nevada, North Dakota, and Virginia do not follow either the Frye or Daubert standard.  For a state-by-state comparison, see https://www.theexpertinstitute.com/daubert-v-frye-a-state-by-state-comparison/.

[2] The Donaldson Court acknowledged that some Appellate Courts in the state adopted a so-called Frye-plus-reliability standard, which the Court described as “after having determined that a technique or methodology is generally accepted, the court must still consider whether the opinion is reliable.”  Donaldson, 767 N.E.2d at 325-326.  The Court rejected that standard, stating “[t]oday, we clarify that this is not the standard in Illinois.  The trial court is not required to conduct a two-part inquiry into both reliability of the methodology and its general acceptance.”  Id. at 326.

[3] There are five Appellate Courts in Illinois each with jurisdiction over a specific geographic portion of the state.  The First Appellate District covers Cook County, Illinois.

VIII.  Modified Comparative Negligence

Modified Comparative Negligence with 51% Bar Rule

Illinois follows the doctrine of modified comparative negligence with a 51% bar rule.735 ILCS 5/2-1116.  The statute states that in “all actions on account of bodily injury or death … based on negligence … the plaintiff shall be barred from recovering damages if the trier of fact finds that the contributory fault on the part of the plaintiff is more than 50% of the proximate cause of the injury or damage for which recovery is sought.”  To make it absolutely clear that comparative negligence with a 51% bar rule is the governing legal doctrine, the statute goes on to state that the “plaintiff shall not be barred from recovering damages if the trier of fact finds that the contributory fault on the part of the plaintiff is not more than 50% of the proximate cause of the injury….”Thus, under Illinois law, the plaintiff’s own negligence in causing or contributing to his or her injuries is not a bar to recovery unless the plaintiff’s assigned percentage of fault is 51% or greater.

Modified comparative negligence is a fault and damages allocation system.  Under this system, fault is determined and apportioned among the parties involved (plaintiff and all defendants), and how much compensation the plaintiff may recover is limited by his or her relative share of fault for causing the injury.  As a result, the plaintiff’s recovery is limited by his or her assigned percentage of fault.735 ILCS 5/2-1116 requires that “any damages allowed shall be diminished in the proportion to the amount of faulty attributable to the plaintiff.”

The 51% bar rule means that if the plaintiff’s allocated percentage of fault is 51% or greater he or she is completely barred from recovering any damages.For example, assume a plaintiff is determined to be 50% at fault, and the damage award is $100,000.  The amount to which the plaintiff is entitled is $50,000 because the plaintiff’s allocated percentage share of fault, i.e., 50% or $50,000, is deducted from the damage award.  If the plaintiff were determined to be 51% at fault, he or she would not be entitled to any recovery because Illinois imposes the 51% bar rule.

Burden of Proof

As with any medical malpractice claim, the plaintiff bears the burden of proof that the defendant was negligent by a preponderance of the evidence. However, the plaintiff has no obligation to establish that he or she exercised due care and is without fault in order to pursue a claim for negligence against the defendant.  Casey v. Baseden, 111 Ill.2d 341, 346-347 (1986).  Rather, as the Illinois Supreme Court held in Casey,“the defendant, who stands to benefit from a showing that the plaintiff was negligent, should have the burden of persuading the trier of fact on that issue.”  Id.

The Court reasoned that the invocation of comparative negligence by the defendant “is similar in effect to the defense of failure to mitigate damages regardless of whether the comparative negligence is labeled an affirmative defense, a defense, or merely evidence in mitigation; it does not defeat the cause of action but only diminishes the recovery.”Id. at 347.  The Court continued its reasoning by adding: “The defendant has the burden of proving a failure to mitigate, and should likewise carry the burden on the plaintiff’s negligence.”  Id.It would be illogical to allow the defendant to claim that the plaintiff was negligent in contributing to his or her own injury but place the burden of proof on the issue on the plaintiff.  Id.

The Court explained the mechanics of instructing a jury on comparative negligence.  First, the plaintiff has the burden of proof on each element of the medical malpractice claim.  Once the liability issue has been decided upon in favor of the plaintiff and that he or she suffered injury due to the defendant’s negligence, only then does the defendant have the burden of proof on the issue of the plaintiff’s own negligence is contributing to or exacerbating the injury.  Id. at 347-348.

IX. Limitations on Damages

As of the date of this article, Illinois law does not impose any limitations on the amount of non-economic or economic damages that may be recovered in a medical malpractice lawsuit.  Illinois did enact legislation to impose such limitations on damages in 1995 (Public Act 89-7) and again in 2005 (Public Act 94-677), but the Illinois Supreme Court struck down both Acts as unconstitutional in Best v. Taylor Machine Works, 179 Ill.2d 267 (1997) and Lebron v. Gottlieb Memorial Hospital, 237 Ill.2d 217 (2010), respectively.

Punitive damages are not recoverable in Illinois medical malpractice cases.  735 ILCS 5/2-1115.  The Illinois Supreme Court held that the prohibition contained in 735 ILCS 5/2-1115 against the recovery of punitive damages in medical malpractice cases is constitutional.  Bernier v. Burris, 113 Ill.2d 219, 253 (1986).

X. Limitations on Attorney Fees

Contingent Fee Arrangement

Attorney fees are typically paid on a contingency basis in medical malpractice cases.  That means the attorney’s entire legal fee is paid as a percentage of any settlement amount or jury award.  If there is no recovery, then the attorney does not receive any payment as a legal fee.  Contingent fee arrangements enable all injured parties to have the benefit of legal representation in pursuing their legal claim regardless of their financial resources.  Most people simply cannot afford to hire an attorney on an hourly fee basis to pursue their claim, so they would be left with either just giving up on their claim or attempting to represent themselves, with the likelihood of recovering any damages only slightly higher than the former option.  Contingent fee arrangements empower the injured to take on healthcare practitioners, institutions, and insurance companies as equals.

This type of fee arrangement is permitted in every state as well as the federal court system subject to the basic ethical requirement that the fee amount is reasonable and not excessive.  Most jurisdictions impose a limit on the fee percentage somewhere between 10% to 50% of the amount recovered, depending on one or more of the following factors: (1) the type of claim, (2) the stage of the case in which it is ultimately resolved, and (3) the amount recovered.

It should be noted that costs and expenses are separate from an attorney’s legal fee.  Some examples of costs and expenses include, but are certainly not limited to, medical records, police reports, filing fees, trial exhibits, expert witness fees, and depositions.  Some attorneys will deduct these amounts from the final recovery while others will charge the client as they are incurred.

Limitations on Attorney Fees in Illinois

Under Illinois law, contingent fee arrangements in medical malpractice actions are governed by 735 ILCS 5/2-1114.  For purposes of the statute, the term ‘contingent fee basis’ means “any fee arrangement under which the compensation is to be determined in whole or in part on the result obtained.”  735 ILCS 5/2-1114 (d).  The statute provides that the total contingent fee is limited to 331/3% of all sums recovered.  It reads: “In all medical malpractice actions the total contingent fee for plaintiff’s attorney or attorneys shall not exceed 33 1/3% of all sums recovered.”735 ILCS 5/2-1114(a).

The current limit on contingent attorney fees took effect in 2013.  It replaced the sliding scale limitation structure that had previously capped attorney fees in medical malpractice cases at (a) 33 1/3% of the first $150,000 recovered, (b) 25% of the next $850,000 recovered, and (c) 20% of any amount over $1,000,000.  Note that many sources on this topic still reflect the old limitation structure, but as of the date of this article, 33 1/3% is the current statutory limit in medical malpractice cases.

In addition, actions filed in the Court of Claims are subject to fee limitations.  705 ILCS 505/26-1 provides that “the maximum contingent fee to be charged by an attorney practicing before the Court shall not exceed 20 percent of the amount awarded, which is in excess of the undisputed amount of the claim, unless further fees shall be allowed by the Court.”

XI. Apologies and Sympathetic Gestures

Forty-two states have some form of apologies or sympathetic gestures statute that excludes expressions of sympathy, condolences, or apologies from being used against the person communicating such sentiments in a civil lawsuit.  This is typically achieved by characterizing such expressions as inadmissible evidence in a medical malpractice case.

Illinois had a so-called “I’m Sorry” law that was enacted under Public Act 94-677 (2005) with an effective date of August 25, 2005.  However, in 2010, the Illinois Supreme Court held that Public Act 94-677 was unconstitutional, and thus the State’s “I’m Sorry” law was rendered void.  Lebron v. Gottlieb Memorial Hospital, 237 Ill.2d 217 (2010).

In 2013, Public Act 94-677 was introduced in the Illinois Senate, and among its provisions was a proposed “I’m Sorry” law nearly identical to the one enacted in 2005.  The bill failed on January 13, 2015.  Accordingly, as of the date of this article, Illinois does not have an “I’m Sorry” statute barring the admissibility of expressions of apology or sympathetic gestures by healthcare professionals.  However, the possibility exists that further attempts to enact such a law will be made in the future, so plaintiffs who are affected by this issue should remain vigilant.