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Will the tolling of a medical malpractice suit be extended?

The Illinois Supreme Court has issued a decision that could have a major effect on how long a party has to file a lawsuit in wrongful death cases involving medical malpractice. Previously, the date of death was the starting point for the two years in which a person had to file a lawsuit.

However, in this recent case, the plaintiff alleging medical malpractice did not know that his loved one's death was due to medical malpractice until a report from the medical consulting firm made him aware of the details surrounding his loved one's death, which took nearly two years after his loved one died. Therefore, this information did not arrive to him in time for him to file a lawsuit under Illinois law.

The plaintiff argued, per the discovery rule, that he should have had 24 months from the date he learned of the wrongful death to file suit. The state Supreme Court agreed that the point of time in which the plaintiff actually learned that his or her loved one passed away was wrongful should be decided by the trial court.

The discovery rule makes it so that a plaintiff has until he or she knows, or should know, that the cause of his or her loved one's death was wrongful. Should the discovery rule not apply, the statute of limitations will toll when the victim dies. While this may be problematic for medical providers, it can help patients pursuing medical malpractice suits.

In the end, Illinois residents who feel that a loved one's death was a result of medical malpractice should not be dissuaded from filing a wrongful death lawsuit if appropriate. If one waits too long to file such a lawsuit, that person could be barred from filing a lawsuit at all, despite the new Illinois Supreme Court ruling. Those with questions about how this case affects them with regard to medical mistakes they have suffered may want to consult an attorney for further information.

Source: Cook County Record, "Time to file medical wrongful death suit open to more liberal view of discovery date," Dawn Geske, Nov. 2, 2016

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