When a child is injured during birth due to medical negligence, most families assume they have time on their side. Under Illinois law, a minor’s claim for birth injuries can be preserved for years. But there is a trap that catches many families before they ever speak to a lawyer: the parents’ separate claim — the one covering the medical bills they have been paying out of pocket — runs on a much shorter clock. Missing the Family Expense Act Illinois birth injury deadline can mean losing thousands of dollars in recoverable costs, even if the child’s own claim is still valid.
This article provides general legal information; consult a licensed Illinois attorney for advice specific to your situation.
Two Separate Claims, Two Separate Clocks
A birth injury case in Illinois typically involves two distinct claims with different owners and different deadlines:
The child’s claim belongs to the child. Under 735 ILCS 5/13-212(b), for injuries occurring during birth, the child has until age 8 — or until age 22 if the injury was not discovered and could not reasonably have been discovered earlier. This extended period recognizes that children cannot bring lawsuits on their own behalf and that some birth injuries only become apparent as a child develops.
The parents’ claim is different. Under the Rights of Married Persons Act — commonly called the Family Expense Act (750 ILCS 65/15) — parents have a separate and independent right to recover the medical expenses they have paid or are obligated to pay for their child’s treatment. This is not the child’s money. It is the parents’ own claim for costs the family has absorbed. And it runs on the adult medical malpractice limitations period: two years from the date the parents knew or should have known of the injury and its potential connection to malpractice.
Why the Two-Year Clock Hits Parents Hard
Illinois appellate courts have been clear: the parents’ claim under the Family Expense Act is governed by the adult standard of care limitations period, not by the child’s extended minor tolling rule. That means a family that waits five years to consult an attorney — perfectly reasonable given how long the child’s claim survives — may discover that the parents’ right to recover the medical bills they paid has already expired.
The amounts at stake are not trivial. NICU stays, repeated hospitalizations, specialist care, physical and occupational therapy, adaptive equipment — these costs can accumulate quickly. Losing the ability to recover them because a two-year adult deadline was missed is a preventable financial harm.
The two-year clock generally begins running when the parents knew or reasonably should have known that a healthcare provider’s negligence may have caused the injury. In practice, that date can be contested, but courts apply an objective standard. Waiting for certainty does not stop the clock.
What the Family Expense Act Covers
Under 750 ILCS 65/15, both spouses are jointly liable for expenses related to family medical care. The statute also gives each parent an independent right to pursue recovery of those family medical expenses in litigation. In a birth injury context, this means the parents — not just the child — are proper plaintiffs for the portion of damages that represents their out-of-pocket costs.
Recoverable expenses under this claim can include past medical bills, future projected medical costs the parents are expected to bear, and in some cases other economic losses tied to caregiving. The scope depends on the facts of each case and how damages are structured at trial or in settlement negotiations.
How This Interacts With the Child’s Statute of Limitations
For a full explanation of how Illinois birth injury deadlines are calculated — including the discovery rule and the age-8 and age-22 cutoffs — see our article on the Illinois birth injury statute of limitations. The key point here is that the minor tolling provisions that protect the child’s claim do not transfer to the parents’ separate Family Expense Act claim.
A case filed on behalf of the child alone, after the parents’ two-year window has closed, may still recover damages for the child’s pain and suffering, future care needs, and loss of normal life. But the family’s claim for past and future medical expenses — the bills — may be barred. This is why the claims need to be evaluated together, not in sequence.
Practical Steps for Families
If your child was injured during delivery and you have been accumulating medical expenses, the time to consult an attorney is not after the child’s condition stabilizes years from now. It is now, while the parents’ claim is still within its limitations window.
An attorney can evaluate both claims together, identify which deadlines apply and when they run, and take steps to preserve both the child’s recovery and the family’s right to recover the costs they have carried. Delaying that conversation can cost the family a significant portion of what they are legally entitled to recover.
There is one more nuance worth knowing. If a lawsuit is filed on the child’s behalf but the parents’ claim is not expressly included, the parents may later be barred from asserting the Family Expense Act claim separately — especially if the limitations period has run by then. An experienced birth injury attorney will structure the complaint to preserve both claims from the start, ensuring that the family’s full scope of damages is presented in a single, coordinated proceeding rather than in two separate actions filed years apart.
Talk to a Chicago Attorney — Free Consultation
Phillips Law Offices handles birth injury and medical malpractice claims for families in Chicago and throughout Illinois. If your child was harmed during birth and your family has been paying medical bills, call (312) 346-4262 to speak with us at no charge, or use our contact page to reach us online. We take these cases on a contingency basis — no fee unless we recover for you.