Illinois Court: Failing to Submit Affidavit in Medical Malpractice Case Can Result in Case Dismissal

Any medical malpractice complaint filed in Illinois must contain a certificate of merit or else it could be subject to dismissal.

In 2012, a young woman filed a lawsuit alleging that her physicians committed medical malpractice. The trial court dismissed the complaint with prejudice, noting that the plaintiff failed to comply with the state's affidavit requirements. The appellate court upheld that decision, emphasizing the importance of complying with the state's procedural rules when filing a medical malpractice lawsuit.

What the Law Says

According to Illinois law, anyone who files a medical negligence complaint is required to submit an affidavit that declares one of the following:

• That a health professional has reviewed the facts of the case including medical records and determined that there is both a reasonable and meritorious cause for the suit; or
• That the plaintiff was unable to consult with a health professional prior to the expiration of the statute of limitations, but the report will be filed within 90 days of filing the lawsuit; or
• That the plaintiff attempted to get the necessary medical records but has not yet received them and will submit a health professional's report within 90 days of receipt of the medical records.

When a plaintiff fails to attach the affidavit to the complaint, a court may dismiss the suit. According to The National Law Review, in the above-mentioned case, the trial court gave the young woman three extensions in order to comply with these requirements, which she failed to do.

Unfortunately, failure to strictly comply with the procedural rules governing medical malpractice lawsuits in Illinois, can lead to legitimate claims being dismissed.

Additional Illinois Requirements

Under Illinois law, all medical malpractice lawsuits must be brought within two years of the injury or death of the patient, or two years from the date that the plaintiff knew or should have known about the injury and that it was wrongfully caused. There is a four-year time limit for all claims, which means that no matter the circumstances, a suit may not be brought if four years have passed since the date of the injury.

While other states may limit the amount of damages a plaintiff can receive, Illinois does not. In 2010, the state's highest court ruled that capping damages is unconstitutional. Therefore, medical malpractice victims may seek full and fair compensation for economic and noneconomic damages.

Anyone with questions about filing a medical malpractice suit in Illinois should consult with an attorney.