If your child suffered a birth injury due to medical negligence, you have a limited time to file a lawsuit. Illinois law provides special protections for minors that extend the deadline, but understanding these rules is critical—missing the statute of limitations means losing your right to compensation forever.
The Basic Rule: 735 ILCS 5/13-212
The Illinois statute of limitations for medical malpractice (735 ILCS 5/13-212) establishes complex time limits that depend on when the injury occurred, when it was discovered, and whether the victim is a minor.
For adults, the general rule requires filing within:
- 2 years from the date the claimant knew or reasonably should have known of the injury and that it was caused by medical negligence, OR
- 4 years from the date of the negligent act, whichever is earlier
However, special rules apply when the victim is a minor—rules that are particularly important in birth injury cases.
The 8-Year Rule for Minors
Illinois law “tolls” (pauses) the statute of limitations for minor children. Under 735 ILCS 5/13-212(b), for injuries to minors under the age of 18:
The claim must be filed within 8 years from the date of the negligent act.
This 8-year period applies regardless of whether the child has reached age 18. For birth injuries occurring at delivery, families have until the child’s 8th birthday to file suit.
Why 8 Years Matters for Birth Injuries
Birth injuries often don’t become apparent immediately. A baby who appears healthy at birth may later be diagnosed with:
- Cerebral palsy – Often not diagnosed until 18-24 months or later
- Developmental delays – May not be recognized until school age
- Learning disabilities – May not appear until formal education begins
- Mild HIE effects – Subtle cognitive issues may emerge over years
The 8-year window allows time for these conditions to manifest and be properly diagnosed.
Example: Calculating the Deadline
Consider a baby born on March 15, 2020, who suffered oxygen deprivation during delivery:
- The negligent act occurred on March 15, 2020
- The 8-year statute of limitations runs until March 15, 2028
- A lawsuit must be filed before March 15, 2028
Even if the child is diagnosed with cerebral palsy at age 3 (in 2023), the family still has until the child’s 8th birthday to file.
The Discovery Rule
Illinois also applies a “discovery rule” that can affect when the clock starts running. The statute doesn’t begin until the plaintiff knows or reasonably should know:
- That an injury occurred
- That the injury was caused by negligent conduct
For birth injuries, this means the clock might not start until parents have reason to suspect medical negligence—not just that their child has a medical condition.
However, courts interpret the discovery rule narrowly. Consulting with an attorney to understand how it applies to your specific situation is essential.
Exceptions and Special Circumstances
Fraudulent Concealment
If the healthcare provider fraudulently concealed the malpractice, the statute of limitations may be tolled until the fraud is discovered or reasonably should have been discovered.
Foreign Objects
Cases involving surgical instruments or other objects left inside the body have different rules—the limitation period doesn’t begin until the object is discovered or should have been discovered.
Continuing Treatment
In some cases, ongoing treatment by the same provider may extend the time to file. This “continuous course of treatment” doctrine requires careful legal analysis.
Why You Shouldn’t Wait
While the 8-year deadline provides significant time, there are compelling reasons to investigate birth injuries promptly:
Evidence Preservation
Critical evidence can be lost over time:
- Fetal monitoring strips – Hospitals may overwrite electronic records
- Medical records – Required retention periods may expire
- Witness memories – Nurses and physicians may forget details or become unavailable
- Photographs and physical evidence – May be lost or degraded
Expert Availability
Medical experts who can testify about standards of care at the time of delivery may retire, relocate, or pass away.
Building the Strongest Case
Early investigation allows attorneys to:
- Obtain complete medical records before anything is lost
- Interview witnesses while memories are fresh
- Send preservation letters to prevent evidence destruction
- Build a comprehensive case with the best available evidence
Financial Planning
Children with birth injuries often need immediate therapies and interventions. Prompt resolution of a malpractice claim can provide resources when they’re most needed.
Claims Against Hospitals vs. Individual Physicians
The same statute of limitations applies whether you’re suing a hospital, physician, nurse, or other healthcare provider. However, identifying all potentially liable parties requires careful investigation, and different parties may have different insurance carriers and defense strategies.
The Certificate of Merit Requirement
Beyond the statute of limitations, Illinois requires a “certificate of merit” before filing a medical malpractice case. Under 735 ILCS 5/2-622, a qualified physician must review the case and provide a written report stating there is reasonable and meritorious cause for filing.
This requirement means you need to engage with an attorney well before the statute of limitations deadline—there must be time to:
- Gather medical records
- Have an expert review the case
- Obtain the required report
- Prepare and file the complaint
What Happens If You Miss the Deadline?
If the statute of limitations expires before you file suit, your case is almost certainly barred forever. Courts strictly enforce these deadlines, and there are very limited exceptions. No matter how strong your evidence of negligence, you lose the right to pursue compensation.
Protecting Your Family’s Rights
If you suspect your child’s birth injury may have resulted from medical negligence:
- Request medical records now – Get complete copies of prenatal, labor/delivery, and neonatal records
- Consult an attorney promptly – Free consultations allow you to understand your options without commitment
- Document your concerns – Keep notes about what happened and any statements made by healthcare providers
- Don’t assume you’re too late – Let an attorney calculate the deadline based on your specific facts
Contact an Illinois Birth Injury Attorney
Understanding statute of limitations rules requires careful legal analysis. At Phillips Law Offices, we can evaluate your case, calculate the applicable deadline, and advise you on next steps.
Call Phillips Law Offices at (312) 598-0917 for a free consultation. We handle birth injury cases on contingency—you pay nothing unless we recover compensation for your family. Don’t let the statute of limitations expire without knowing your rights.