Health Care

• Library: Guide to Illinois Statutes of Limitations and Repose (2018 Ed.)

HEALTH CARE

A. HEALTH CARE MALPRACTICE - LIMITATION

735 ILCS 5/13-212: Physician, dentist, registered nurse or hospital

CAVEAT: These Guidelines are not a substitute for the statutory examination that is needed in considering a statute of limitations problem. We recommend such research. — Editors

An action for damages for injury or death against any physician, dentist, registered nurse, or hospital, whether based upon tort, breach of contract, or otherwise arising out of patient care, must be brought within 2 years from the date the claimant knew, should have known, or received notice in writing of the injury or death, whichever occurs first. But in no event may the action be commenced more than 4 years from the date on which the act or omission at issue occurred.

An action for damages for injury or death against any physician, dentist, registered nurse, or hospital, whether based upon tort, breach of contract, or otherwise arising out of patient care, must be brought within 8 years from the date of the act or omission complained of when the person entitled to bring the action was, at the time the cause of action accrued, under the age of 18 years. However, in no event may the action be brought after the person's 22nd birthday. If the person was under the age of 18 years when the cause of action accrued, and as a result of this amendatory act the action is either barred or there remains less than 3 years to bring the action, then that person may bring the action within 3 years of July 20, 1987.

These limitation periods do not apply in the case of a defendant who is guilty of fraudulent concealment, in which case the claimant may bring the action within 5 years after the discovery of a cause of action. (735 ILCS 5/13-215). (See also the text and cases cited in the section entitled Computation of Time - Fraudulent Concealment).

If the person entitled to bring the action is under a legal disability, other than being under the age of 18 years, the period of limitation does not begin to run until the disability is removed.

Pub. Act 98-1077 (eff. Jan. 1, 2015) extends the tolling to persons who were not legally disabled at the time their cause of action accrued, but who become disabled before the statute runs. By its terms, this Act applies only to actions commenced or pending on or after 1/1/15, and does not invalidate any statute of repose and has a 10 year limit on such tolling.

Because plaintiff's claim for breach of contract resulting from failure to provide her access to primary care physician is claim which arises out of patient care, limitations period of 735 ILCS 5/13-212 applies to render plaintiff's complaint untimely. Thornton v. Shah, 333 Ill. App. 3d 1011, 777 N.E.2d 396, 267 Ill. Dec. 593 (1st Dist. 2002).

Similarly, § 13-212 has been held to apply to claims under the Consumer Fraud and Deceptive Business Practices Act when it was alleged that a doctor misrepresented test results and the need for surgery. Walsh v. Barry-Harlem Corp., 272 Ill. App. 3d 418, 649 N.E.2d 614 (1995); and to a product liability claim for a defective prosthesis. Stiffler v. Lutheran General Hospital, 965 F.2d 137 (7th Cir. 1992).

CAVEAT: These Guidelines are not a substitute for the statutory examination that is needed in considering a statute of limitations problem. We recommend such research. — Editors

In Brucker v. Mercola, 227 Ill. 2d 502, 886 N.E.2d 306, 319 Ill. Dec. 543 (2007), the supreme court held that the eight-year repose period of § 13-212(b), as...