What is the Discovery Rule in Illinois For Personal Injury?
Personal injury victims have a limited amount of time after they’re hurt to file an insurance claim or a lawsuit for damages. This is called a statute of limitations and the amount of time varies from state to state. The Illinois statute of limitations for personal injury is two years from the day of the incident.
In certain situations, however, the “clock” counting down those two years can be delayed or paused, extending the deadline. Under something called the discovery rule, the timeframe for filing begins when the injury is discovered, rather than the date it occurred. All but five states have a discovery rule.
The discovery rule, along with a few other exceptions, can give victims some extra time to seek compensation.
An experienced attorney can navigate the Illinois statute of limitations for personal injury, the discovery rule, and the statutes of repose to make sure you don’t miss out on collecting the damages you deserve.
When Does the Discovery Rule Apply?
A victim of a car accident or someone who slips and falls at the grocery store may not realize the extent of their injuries right away. Delayed pain is not uncommon. In most cases, however, it takes only a few days before an injured person is aware that something is wrong. Meeting the deadline of two years after a crash or fall is rarely an issue in these cases.
In cases involving medical malpractice, defective products, or exposure to harmful substances, however, it can take years for symptoms to appear. The discovery rule gives victims of negligence in these cases more time—two years from the date the symptoms show up—allowing them the opportunity to seek justice.
For example, say a doctor makes a mistake during a knee replacement. The patient fully recovers after surgery and feels fine. A year later, the patient starts to experience extreme pain and an x-ray shows the surgeon’s error. Due to the discovery rule, the two-year statute of limitations begins on the day the problem is found—a full year after the date of the surgery.
The Discovery Rule and Statutes of Repose
While the discovery rule can extend the Illinois statute of limitations for personal injury, victims can not wait forever to sue. Illinois (along with most states) applies a statute of repose outlining the maximum amount of time allowed to file suit for specific types of claims. The statute of repose overrules the discovery rule.
In Illinois, the statute of repose for medical malpractice is four years from the occurrence. Using our knee replacement example above, the patient must file a claim within two years of discovery. This is three years after the surgeon’s negligence, so it is within the statute of repose.
Now let’s say the patient’s symptoms appeared three years after surgery. The discovery rule would allow for a lawsuit to be filed within two years of that time. Unfortunately, the patient only has one year to file before the four-year statute of repose on malpractice expires.
Product liability cases have a longer statute of repose. Someone who is hurt by a defective product has 10 years from the time they purchased the product. So, for example, if someone is injured using their lawn mower 11 years after buying it, they can not file a claim even if they can prove that the manufacturer was negligent.
An experienced attorney can navigate the Illinois statute of limitations for personal injury, the discovery rule, and the statutes of repose to make sure you don’t miss out on collecting the damages you deserve.
Pausing the Illinois Statute of Limitations for Personal Injury
Besides the discovery rule, there are a few other ways that the Illinois statute of limitations can be paused, buying a bit more time for victims.
- Underage victims. Parents or guardians filing a claim on behalf of an injured child are subject to the two-year statute of limitations. But if no claim is filed, the child can file for themselves once they turn 18 and are given two years to do so. The statute of repose for malpractice is different for minors. Victims are allowed eight years from the date of malpractice, as long as it does not extend beyond their 22nd birthday.
- Legal disability. Victims who are temporarily determined to be mentally unfit can have the statute clock paused until their condition is resolved according to the court.
- Wrongful death. If a victim succumbs to injuries suffered in a car crash, slip and fall, or other traumatic incident, their family has two years from the date of death to file instead of the date the injuries occurred.
- Defendant’s absence. If the at-fault person in a personal injury claim leaves the state of Illinois, the statute of limitations clock pauses, then resumes when they return. This prevents guilty parties from avoiding a lawsuit by “running out the clock” in another state.
An experienced attorney can navigate the Illinois statute of limitations for personal injury, the discovery rule, and the statutes of repose to make sure you don’t miss out on collecting the damages you deserve
How Does the Discovery Rule in Illinois Impact Your Case?
It can take some time to reach a settlement for a personal injury once you make a claim or file a lawsuit. But something as simple as missing a deadline could ruin your chance at compensation before the case even begins.
This is why it is so important to seek legal counsel as soon as possible after the discovery of an injury. Two years can go by quickly, especially when recovering from serious injuries, so it is best not to delay. At Hipskind & McAninch, we will work quickly to meet the statutes of limitation and repose—and use the discovery rule to give you the time you need.
If you or a loved one has been hurt due to someone else’s negligence, contact us today.
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