Illinois law on surgical errors

The general rule has two parts. A claim against a physician, a registered nurse or a licensed hospital must be brought within 2 years of the date you knew, or through reasonable diligence should have known, of the injury (opens in a new tab), or received written notice of it, whichever comes first.

The second part is an outer limit. However late the injury came to light, the claim cannot be brought more than 4 years after the act or omission said to have caused it (opens in a new tab). The Illinois Supreme Court has said that limit may bar a claim even before the patient knows of or discovers the injury (opens in a new tab), so the date of the operation matters even where the problem surfaced much later.

The Illinois Supreme Court reads the first part to mean that the period begins when a person knows or reasonably should know both of the injury and that it was wrongfully caused (opens in a new tab). That does not require knowing which provider was at fault. It means having enough information that a reasonable person would start asking questions.

A separate rule applies to fraudulent concealment. If the person liable fraudulently conceals the claim, Illinois allows it to be brought within 5 years after it is discovered (opens in a new tab).

These are general rules. Which of them governs your family’s situation depends on facts a lawyer has to look at, which is the reason to ask early.

For a patient who was under 18 when the claim arose, Illinois allows 8 years from the act or omission, and in no case past the patient’s 22nd birthday (opens in a new tab).

For a person who was under a legal disability when the claim arose, the time limit does not begin to run until the disability is removed (opens in a new tab). How the rule applies to a particular person is something a lawyer has to assess.

Illinois does not let a malpractice case go forward on a lawyer’s word alone. The attorney must file an affidavit stating that he or she has consulted a health professional who has practiced or taught in the same area of medicine within the last 6 years (opens in a new tab) and is qualified in the subject of the case.

That professional must have reviewed the medical record and determined, in a written report, that there is a reasonable and meritorious cause for filing the action (opens in a new tab). A copy of the report is filed with the affidavit.

When a case names more than one defendant, a separate report is required for each (opens in a new tab). A surgical case can name several: the surgeon, an assistant, the hospital and sometimes an anesthesia provider.

A claim that rests on a failure to inform the patient carries a further step. The attorney must certify that the reviewing professional concluded that a reasonable health professional would have informed the patient of the consequences of the procedure (opens in a new tab).

If the deadline is close and the review cannot be finished in time, the statute allows the report to be filed within 90 days after the complaint (opens in a new tab). That is a narrow allowance and it has to be claimed in the affidavit. Failing to file the report is grounds for dismissal.

A bad outcome is not enough. The Illinois Supreme Court describes the standard as what an ordinarily careful professional would do (opens in a new tab), and it puts the burden on the patient to show what that was, that the provider did not do it, and that the failure caused the injury.

Because jurors are not trained in medicine, expert testimony is generally required (opens in a new tab) to establish the standard and the departure from it. The exception is conduct so plainly negligent that a layperson could judge it.

The same court has long said that surgeons are not liable merely for unusual, unfortunate results (opens in a new tab). An unusual or unfortunate result is not, by that fact, proof that anyone was careless.

Sometimes. Under the doctrine of res ipsa loquitur, negligence may be inferred when a medical result would not ordinarily have occurred without it (opens in a new tab) and was caused by something within the defendant’s control (opens in a new tab). Whether the doctrine applies is decided by the judge.

The Illinois Supreme Court applied the doctrine to an operation in 2022. A patient who was under the defendants’ care during surgery, it held, is not required to identify precisely who caused the injury (opens in a new tab). What the patient must do is identify all the parties responsible for all reasonable causes of it.

The doctrine opens the door and no more. The court called it a kind of circumstantial evidence, and said the trier of fact is free to accept or reject the inference (opens in a new tab). The existence of a duty and the link between the negligence and the injury still have to be proven apart from it.

Nor does it remove the need for experts. Where an injury is outside what laypeople commonly know, the court held that expert testimony was required to determine whether such an injury would ordinarily occur absent negligence (opens in a new tab).

Several people take part in an operation. In an Illinois hospital, operative procedures may be performed only by a physician, dentist or podiatric physician with surgical privileges at that hospital (opens in a new tab), and a registered nurse qualified in operating room nursing must be present and act as the circulating nurse during all invasive or operative procedures (opens in a new tab).

A surgeon is not automatically answerable for everyone in the room. An Illinois appellate court has said that hospital employees assisting a surgeon remain the employees of the hospital (opens in a new tab), and that a surgeon who keeps supervision or control over others in an operation must use that control with reasonable care.

In a later case another appellate court held that the “captain of the ship” idea did not, on the evidence before it, create an issue for trial (opens in a new tab) against a surgeon over a count kept by the nursing staff. These are Appellate Court decisions, and each turned on its own record.

The hospital can be answerable even when the surgeon is not its employee. The Illinois Supreme Court has held that a hospital may be liable for a physician who is an independent contractor unless the patient knew, or should have known, of that arrangement (opens in a new tab). The patient has to show that the hospital presented the doctor as its own, and that the patient looked to the hospital for the care (opens in a new tab). What a patient was told, and what the patient signed, can change the answer.

That rule has an edge. The same court declined to extend it to care given by the employees of an unrelated, independently owned and operated clinic (opens in a new tab).

Illinois treats two situations differently. The committee that drafts Illinois’s pattern jury instructions notes that any operation performed without consent in a non-emergency situation is a battery (opens in a new tab). A claim that consent was given on too little information is a negligence claim, with elements of its own.

For that second kind of claim the Illinois Supreme Court lists four things a patient must prove: that the physician had a duty to disclose material risks, that the disclosure was missing or inadequate, that the patient therefore consented to treatment she would not otherwise have consented to, and that the treatment injured her (opens in a new tab).

What had to be disclosed is measured by the profession. Jurors are told to look to the risks and alternatives that a reasonably well-qualified practitioner would disclose under the same or similar circumstances (opens in a new tab), and that ordinarily has to come from expert testimony.

The pattern jury instructions ask what a reasonable person would have done. The patient must show that a reasonable person in the patient’s position would not have gone ahead (opens in a new tab) had the disclosure been made. The committee that drafts them notes that this may need to be modified for cosmetic surgery.

Illinois hospital rules require a properly executed consent for the procedure to be in the chart before surgery (opens in a new tab). The rule does not say what the surgeon must have explained, so a signed form is the start of that question.

Illinois gives patients a right to their own chart. A hospital must let a patient, or the patient’s authorized attorney, examine and copy the patient care records (opens in a new tab), and a request for copies has to be in writing. The hospital has 30 days to comply, and no more than 60 days if it explains the delay in writing (opens in a new tab).

An operation leaves several documents. Illinois hospital rules require an operative report describing techniques and findings, written or dictated immediately following surgery (opens in a new tab), and an operating room record that shows, among other things, the surgeons and assistants, the type of procedure and the presence or absence of complications in surgery (opens in a new tab).

Tissue removed at surgery must, with listed exceptions, be labeled and submitted for pathological examination (opens in a new tab), and signed reports of tissue examinations are filed with the patient’s medical record (opens in a new tab).

A hospital licensed under the Illinois Hospital Licensing Act must preserve its medical records for not less than 10 years (opens in a new tab). That Act does not cover hospitals run by the federal government or by a state university (opens in a new tab).

One category is off limits. Illinois makes the work of a hospital’s internal quality committees privileged and confidential, but the statute says in terms that the protection does not extend to the medical records pertaining to the patient (opens in a new tab).

When a patient has died, the records must be released to the executor or administrator of the estate, or to an agent the patient appointed under a health care power of attorney (opens in a new tab). Where there is none of these and the patient did not object in writing, the statute allows release to the surviving spouse or, if there is no spouse, to an adult child, a parent or an adult sibling who completes the certification it sets out.

The rules change with who runs the hospital, and some of the deadlines are shorter.

For a county or other local public hospital, a patient-care claim must be brought within 2 years of when you knew or should have known of the injury, and no more than 4 years after the care (opens in a new tab). The longer period Illinois gives children in other malpractice cases is not written into that statute.

A claim against the State itself, or against a state university’s board of trustees, belongs in the Illinois Court of Claims, which has exclusive jurisdiction over tort claims against the State (opens in a new tab). Awards there are limited by statute.

A person bringing an injury claim in that court must first file a notice with the Attorney General and with the court’s clerk within 1 year (opens in a new tab), unless the claim itself is filed within that year.

A claim over care at a federal facility, such as a veterans’ hospital, runs under the Federal Tort Claims Act. It must be presented in writing to the federal agency within two years after it accrues (opens in a new tab), and the same statute sets a six-month limit for going to court once the agency mails a denial.

No lawsuit can be filed until the agency has denied the claim, or has gone six months without deciding it (opens in a new tab). The case is then tried by a judge without a jury (opens in a new tab).

Which of these applies depends on who owned and staffed the facility, and that is not always clear from the name on the building. It is one of the first things to find out.

A wrongful death case is brought by the personal representative of the person who died (opens in a new tab), for the benefit of the surviving spouse and next of kin. Family members do not file in their own names.

A jury may award fair and just compensation for the family’s losses, including grief, sorrow and mental suffering (opens in a new tab). The claim the patient had for his or her own injury survives the death (opens in a new tab) and can be pursued for the estate.

Timing in a malpractice death follows the malpractice statute. The Illinois Supreme Court has held that the period begins when the person bringing the claim knows or reasonably should know of the death and that it was wrongfully caused (opens in a new tab), and the outer limit measured from the care still applies.

Every case turns on its own facts, and no lawyer can promise a result. What Illinois law does set out is the framework.

No cap is in force on compensatory damages in a malpractice case against a private doctor or hospital. The legislature enacted a limit on noneconomic damages in 2005, the Illinois Supreme Court held it unconstitutional in 2010 (opens in a new tab), and the section was later repealed (opens in a new tab).

Punitive damages are a different matter. Illinois does not allow them in a malpractice case (opens in a new tab).

A patient’s own share of fault can reduce an award. A plaintiff found more than 50% at fault recovers nothing (opens in a new tab), and below that line the award is reduced in proportion.

Illinois lets a case be filed in the county where a defendant resides or where some part of the events took place (opens in a new tab), so a claim over care in Chicago can generally be brought in Cook County.

There, suits seeking more than $30,000 in Chicago are heard in the Law Division of the Circuit Court of Cook County (opens in a new tab), whose main location is the Richard J. Daley Center.