The Warning on Statute of Limitations for Birth Injuries: Is it 8 years or is it 2 years?
Childbirth is a very exciting time for a mother and her family. It can also be a very scary time if there are any signs of potential birth complications such as breech birth, preterm labor, preeclampsia, brain injury occurring due to oxygen deprivation and more.
Generally speaking, when there is a birth injury in Illinois due to the negligence of a doctor, hospital or other medical professional, you have eight years from when it happened to file a lawsuit. This law exists because with infants it can take many years to determine what the actual injury is. You can’t prove that the baby will have difficulty speaking or learning when they are born. If they hurt their shoulder in the delivery, there’s no way to tell how that will impact them in five years.
There is a HUGE exception to this rule though. And if your lawyer doesn’t realize this it can end your malpractice case and leave you with no option other than suing your attorney.
If a patient experiences negligence or malpractice at a federally funded clinic or hospital or by a federal employee, the statute is actually only 2 years under the Federal Tort Claims Act (FTCA). The trap for these patients is that they think they have 8 years, but in truth, they only have 2 years and are losing their right to sue.
The trick is that you could be at a regular hospital such as Rush, Swedish Covenant, Northwestern, etc., but the doctor who makes the delivery error could actually work for a Federally funded medical clinic. In those cases while they have privileges at the hospital, their true employer is the Federal Government. As a result, you only have two years from the malpractice date to sue, not eight.
We’ve seen examples of prestigious, successful law firms failing to discover the true employer of these doctors. It’s somewhat laziness in that when these cases come in you have to be able to verify where the OBGYN or other doctors involved actually work. When the lawyer hears a hospital name, some don’t think to dig deeper. Their failure could cost you millions if it’s a catastrophic injury.
Federally funded medical clinics are national and doctors can be employed at several locations. Unfortunately, many patients are not even aware if their doctor or clinic is government funded.
So how can you tell if a clinic/hospital or doctor is federally funded? You may need to do a little research and investigating to find out if you’re going to a federal funded clinic/hospital or seeking treatment from federally employed doctors. Some options include:
• Looking at the Clinic or Facility’s website.
• Call and ask the clinic directly.
• Visit the Health and Human Services (HHS) website at HHS.gov for more information.
There are literally hundreds of these clinics in Illinois with names like Heartland Health Center, Aunt Martha’s, Access and Shawnee Health Care. In other words, it’s not always obvious and you have to do some digging.
Some law firms take an approach with birth injuries that they will do nothing until the child turns three. If that is your child and the doctor who screwed up is employed by one of these clinics, you’d have no case to pursue because it would be too late. So the bottom line is that you need to be diligent and confirm who your doctor actually works for.
Is this confusing? It can be. We are experienced Chicago attorneys who would be happy to talk to you about a potential case for free. Fill out our contact form or call us at 312-346-5320 for a free consultation.