The Civil Justice Reform Amendments of 1995, P.A. 89-7, tried to change the law of medical malpractice in several important ways that favored defendants, but the Illinois Supreme Court held this legislation to be unconstitutional in its entirety. Best v. Taylor Machine Works, 179 Ill. 2d 267, 689 N.E.2d 1057 (1997). (We have published elsewhere on this web site a memorandum discussing the implications of Best.) Because the invalid legislation has never been repealed, some sections that were added or amended continue to be published in current statutory compilations, despite their invalidity. Most sources note the effect of the Best case and, in the case of amended sections, set out the pre-amendment text in a note. See, e.g., 735 Ill. Comp. Stat. Ann. § 5/2-1117 (West Supp. 2002). However, researchers should be aware that the invalid sections continue to appear.

Statutes of Limitations

Any action for personal injury or death against a physician or hospital must be filed within two years from the date the claimant knew or reasonably should have known of the injury. 735 Ill. Comp. Stat. Ann. § 5/13-212 (West 1992). In no instance may a claimant bring an action more than four years after the date on which the alleged act or omission occurred. Id. This statute of repose is constitutional. Mega v. Holy Cross Hospital, 111 Ill. 2d 416, 490 N.E.2d 665 (1986).

If the claimant was under the age of eighteen when the cause of action accrued, the limitation period is eight years from the date of the alleged act or omission, except that in no event may such an action be filed after the minor claimant's 22nd birthday. Id. If the claimant is mentally incompetent, the period of limitations does not begin to run until the disability is removed. Id.

Wrongful death actions are governed by a different two-year statute of limitations that begins to run on the date of death. 740 Ill. Comp. Stat. Ann. § 180/2 (West Supp. 2002). However, such an action can only be brought if, on the date of death, the decedent could still have commenced a malpractice action for the injury that caused the death. Wolf v. Bueser, 279 Ill. App. 3d 217, 664 N.E.2d 197, cert. denied, 168 Ill. 2d 629, 671 N.E.2d 745 (1996).

Contributory or Comparative Negligence

Illinois has adopted a form of modified comparative negligence. Under this doctrine, a claimant's action is barred only if his contributory fault is more than 50 percent of the proximate cause of the injury or damage for which recovery is sought. Otherwise, the claimant's recovery is diminished in proportion to his percentage of fault. 735 Ill. Comp. Stat. Ann. § 5/2-1116 (West Supp. 2002) (see note for text as it read prior to an unconstitutional amendment).

Joint and Several Liability

Defendants in any medical malpractice action based upon negligence are jointly and severally liable for all damages. 735 Ill. Comp. Stat. Ann. § 5/2-1118 (West Supp. 2002). This section was repealed by the Civil Justice Reform Amendments of 1995 and replaced by an amended 735 Ill. Comp. Stat. Ann. § 5/2-1117 (West Supp. 2002) that provided for several liability only, but these changes were held to be unconstitutional in Best v. Taylor Machine Works, 179 Ill. 2d 267, 689 N.E.2d 1057 (1997).

Contribution

A tortfeasor who pays more than his share of a common liability, as measured by relative culpability, has a right of contribution against the other tortfeasors, with the exception of those who have settled. A settling tortfeasor is not entitled to contribution from any tortfeasor whose liability was not extinguished by the settlement. 740 Ill. Comp. Stat. Ann. §§ 100/2 and 100/3 (West 1993).

If a plaintiff asserts his claim by means of a lawsuit, then the defendants must pursue their contribution rights in the main lawsuit by means of cross-claims (called counterclaims in Illinois) or third-party claims. A contribution claim brought as a second, separate lawsuit will be barred. Henry v. St. John's Hospital, 138 Ill. 2d 533, 563 N.E.2d 410 (1990), cert. denied, 499 U.S. 976 (1991); Laue v. Leifheit, 105 Ill. 2d 191, 473 N.E.2d 939 (1984). This is so even though the applicable statute says that a contribution claim may be asserted in a separate action after payment. 740 Ill. Comp. Stat. Ann. § 100/5 (West Supp. 2002) (see note for text as it read prior to an unconstitutional amendment).

Vicarious Liability

A hospital is vicariously liable for the negligent acts of an independent contractor physician if (a) it acts in a manner, or knowingly acquiesces in the acts of an agent, that would lead a reasonable person to conclude that the physician is its agent or employee, and (b) the patient reasonably relies upon such conduct. Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 622 N.E.2d 788 (1993). This was an emergency medicine case, and the court held that the element of justifiable reliance is satisfied if the plaintiff relies on the hospital, rather than a specific physician, to provide complete emergency care. Id. A more restrictive standard passed as part of the Civil Justice Reform Amendments of 1995, 735 Ill. Comp. Stat. Ann. § 5/2-624 (West Supp. 2002), was held to be unconstitutional in Best v. Taylor Machine Works, 179 Ill. 2d 267, 689 N.E.2d 1057 (1997).

Vicarious liability for the acts of physicians presents a special problem in Illinois because of a line of cases beginning with Petrillo v. Syntex Laboratories, 148 Ill. App. 3d 581, 499 N.E.2d 952 (1986), which barred a defense attorney in a product liability case from talking to the plaintiff's physicians. In medical malpractice cases, this left unsettled the question of whether a hospital's lawyer could interview physicians on its staff, even when the hospital might face vicarious liability for the acts of those physicians. See Almgren v. Rush-Presbyterian-St. Luke's Medical Center, 162 Ill. 2d 205, 642 N.E.2d 1264 (1994) (dismissing appeals from one case where such contact was permitted and one where it was denied, because neither order was final and appealable). Amendments to the Hospital Licensing Act, 210 Ill. Comp. Stat. Ann. § 85/6.17 (West 2000), ameliorated this by authorizing hospital counsel to confer with medical staff members. Although earlier legislation attempting to modify the Petrillo doctrine was held to be unconstitutional in Best, the Supreme Court has upheld the new law. Burger v. Lutheran General Hospital, 198 Ill. 2d 21, 759 N.E.2d 533 (2001).

Expert Testimony

In any medical malpractice case, a plaintiff's attorney must attach to the complaint (or in some circumstances file within 90 days) an affidavit stating that (a) he has consulted with an expert who practiced or taught within the last six years in the same area of medicine that is at issue; (b) the expert is qualified by experience or demonstrated competence in the subject of the case; and (c) the expert has determined in a written report, after a review of the medical record and other relevant material, that there is a reasonable and meritorious cause for the filing of such action. A copy of the report must be attached, but the identity of the expert may be withheld. 735 Ill. Comp. Stat. Ann. § 5/2-622 (West Supp. 2002) (see note for text as it read prior to an unconstitutional amendment).

Damage Caps

There is no cap on compensatory damages, but punitive damages are not allowed. In 1995, the Illinois legislature passed a $500,000 limit on non-economic damages in medical malpractice cases, 735 Ill. Comp. Stat. Ann. § 5/2-1115.1 (West Supp. 2002), but this was specifically held to be unconstitutional in Best v. Taylor Machine Works, 179 Ill. 2d 367, 689 N.E.2d 1057 (1997). The Best decision did not purport to invalidate a pre-existing statute prohibiting punitive damages in medical malpractice cases. 735 Ill. Comp. Stat. Ann. § 5/2-1115 (West 1992).

Statutory Cap on Attorneys' Fees

In Illinois, an attorney's contingent fee in a medical malpractice case is limited to (a) 33 1/3 percent of the first $150,000 recovered, (b) 25 percent of the next $850,000 recovered, and (c) 20 percent of any amount over $1,000,000. However, if the claimant's attorney performs extraordinary services involving more than the usual time and effort, the attorney may petition the court for additional compensation. 735 Ill. Comp. Stat. Ann. § 5/2-1114 (West 1992).

Periodic Payments

If all parties agree, or if there is a good faith claim that future damages will exceed $250,000, a periodic payment plan may be sought. 735 Ill. Comp. Stat. Ann. § 5/2-1705 (West 1992). The election may be made by motion of either party at least 60 days prior to a trial involving future damages. Id. When the periodic payment plan is elected, the trier of fact must make specific findings as to past and future pecuniary damages. 735 Ill. Comp. Stat. Ann. § 5/2-1706 (West 1992). The trier of fact makes a finding as to the claimant's life expectancy and adopts a monthly payment schedule accordingly for future pecuniary damages. Id. This procedure is seldom used and there are few published decisions interpreting it.

Collateral Source Rule

Illinois has adopted a modified collateral source rule applicable to medical malpractice cases only. If the defendant applies within 30 days after judgment, the award will be reduced by the following amounts: (a) 50 percent of the lost wages or disability income paid or payable to the claimant in relation to the injury by another person, corporation, or insurance company; (b) 100 percent of the medical, hospital, and nursing charges paid or payable to the claimant in relation to the injury by another person, corporation, or insurance company. 735 Ill. Comp. Stat. Ann. § 5/2-1205 (West 1992). The reduction of a claimant's recovery by collateral source payments, however, is limited by the following rules: (a) there can be no reduction for amounts paid by a person with a right of subrogation against the judgment; (b) the judgment may not be reduced by more than 50 percent; (c) the damages awarded must then be increased by insurance premiums or direct cost paid by the claimant; and (d) there is no reduction for medical expense directly attributable to the adjudged negligent act or omission of the defendant. Id.

Pre-Judgment Interest

Illinois statutory law does not generally provide for the award of pre-judgment interest in medical malpractice actions, and absent a statute or agreement providing to the contrary, pre-judgment interest is not recoverable. Northern Trust Company v. County of Cook, 135 Ill. App. 3d 329, 481 N.E.2d 957 (1985).

Patient Compensation Funds and Physician Insurance

Illinois does not have a patient compensation fund or a general program of state-sponsored liability insurance for physicians.

Immunities

Article 13, section 4 of the 1970 Illinois Constitution abolished sovereign immunity, except as the legislature thereafter provided. The legislature established the Court of Claims to hear claims against the state and its employees. 705 Ill. Comp. Stat. Ann. § 505/8 (West 1999). Restrictions on the scope of recovery include a requirement that claims be filed within one year, 705 Ill. Comp. Stat. Ann. § 505/22-1 (West 1999), and a $100,000 cap on liability. 705 Ill. Comp. Stat. Ann. § 505/8 (West 1999). However, medical negligence claims against physicians employed at state medical facilities are not considered to arise from their employment, but from their individual duties to their patients. Such actions are not subject to governmental immunity and may be brought in the Circuit Court. Cottrill v. Russell, 253 Ill. App. 3d 934, 625 N.E.2d 888 (1993).

Illinois also adopted the Local Governmental and Governmental Employees Tort Immunity Act ("the Act"), which applies to counties, townships, municipal corporations, not-for-profit corporations organized to conduct public business, and "all other local governmental bodies." 745 Ill. Comp. Stat. Ann. § 10/1-206 (West Supp. 2002). The Act protects a local public entity from liability for punitive damages in any action brought directly against it by an injured party. 745 Ill. Comp. Stat. Ann. § 10/2-102 (West 1993).

The Act draws a distinction between diagnosis and treatment. Neither a local public entity nor a public employee acting within the scope of his employment is liable for injury caused by (a) failing to make an adequate physical or mental examination, (b) diagnosing or failing to diagnose that a person is afflicted with a mental or physical illness or addiction, or (c) failing to admit a person to a medical facility operated or maintained by a local public entity. However, neither a local public entity nor its employees are immune from liability for the negligent or wrongful prescription or administration of treatment. 745 Ill. Comp. Stat. Ann. §§ 10/6-105 and 6-106 (West 1993); Michigan Avenue National Bank v. County of Cook, 191 Ill. 2d 493, 732 N.E.2d 528 (2000).

In addition, the Act reduces the limitations period in actions brought against a local entity or its employees to one year from the date the injury was received or the cause of action accrued. 745 Ill. Comp. Stat. Ann. § 10/8-101 (West 1993). This prevails over the ordinary medical malpractice statute of limitations. Tosado v. Miller, 188 Ill. 2d 186, 720 N.E.2d 1075 (1999). The purchase of liability insurance by a public entity is expressly allowed under the Act. 745 Ill. Comp. Stat. Ann. § 10/9-103 (West Supp. 2002). Moreover, the public entity's insurer is required to utilize any immunity to which the insured local public entity or its employees are entitled. Id.

Arbitration

Illinois law allows for but does not require the reference of medical malpractice actions to binding arbitration. 710 Ill. Comp. Stat. Ann. §§ 15/1 to 15/14 (West 1999 & Supp. 2002).