In some cases, a child’s permanent disability may result from a medical error or a failure of a medical professional to exercise a reasonable standard of care. When this situation occurs, the parents or guardians of the child may have a legal claim for medical malpractice against all responsible medical providers.

Timeframes for Filing Medical Malpractice Claims for Children with Special Needs

Parents or guardians in this position should understand that they may be able to pursue a case for medical malpractice, even if the act of malpractice occurred many years ago or if their child is in their teens or potentially even their twenties and beyond. All lawsuits, including medical malpractice claims, are subject to filing deadlines called statutes of limitations. If you fail to file your claim in court before the statute of limitations expires, the court can dismiss your case.

Under Illinois law, when an act of medical malpractice occurs concerning a child under the age of 18, parents or guardians of the child have eight years from the date of the alleged malpractice to file their medical malpractice claim. The law also states “however, in no event may the cause of action be brought after the person’s 22nd birthday.”

Further complicating the matter,  Illinois law also states that “if a person is under a legal disability other than being under the age of 18 years, then the period of limitations does not begin to run until the disability is removed.” This provision of the law has been interpreted by Illinois courts to extend the statute of limitations for the disabled child’s claim indefinitely, until the disability is removed. See, Clark v. Han, 272 Ill.App.3d 981 (1995), S.D. v. Kishwaukee Community Hospital, 288 Ill.App.3d 472 (1997). Whether a child who suffers a brain injury at birth as a result of medical malpractice has their disability “removed” by virtue of reaching the age of majority (18) and becoming under the legal guardianship of an adult with sound mind operates to “remove the disability” remains a debate in the legal community.

Given the foregoing, it is clear that statutes of limitations can be harsh and unforgiving, and can be the subject of debate.  It is important to keep in mind that it may never be “too late” to pursue a claim on behalf of your injured child, regardless of their age. Thus, if you think your child may have been injured as a result of medical malpractice during his or her birth, or thereafter, you should seek legal advice and begin the process of seeking out qualified legal counsel to investigate your potential medical malpractice claim as soon as possible, regardless of your child’s age.

How Can Rubin Law Help Me with a Medical Malpractice Claim?

At Rubin Law, we have an extensive network of attorneys and national experts in birth injury and pediatric medical malpractice to whom we can refer you for assistance. Utilizing one of these experts can be critical for the following reasons:

• Medical malpractice claims can be complex, and medical providers have big insurance companies that will aggressively fight back against your claim.
• Birth and pediatric malpractice is an area of medical malpractice that requires specialized knowledge of medical procedures and injuries unique to infants and children.
• A child or adult with special needs typically receives public benefits that families need to protect if the child receives a medical malpractice settlement.
• If a child or adult with special needs passes away, the government often will attempt to recoup the benefits it paid from their settlement assets, which families need to minimize.

Ideally, you can work with the special needs attorneys at Rubin Law and our network of birth injury and pediatric medical malpractice attorneys to address all these concerns. Together, we can handle any settlement from a medical malpractice lawsuit carefully so that a child or adult with special needs, no matter their age, keeps much-needed public benefits in place and critical assets out of the hands of the government.

Contact Us Today to Learn More About Our Legal Services

Rubin Law is the only Illinois law firm to dedicate itself exclusively to providing compassionate legal services for children and adults with special needs. We offer unique legal and future planning techniques to meet your family’s individual needs.

Call us today at 866-TO-RUBIN or email us at email@rubinlaw.com to learn more about the services we can offer you and your family.