State laws in Indiana and Illinois set time limits for personal injury claims to be filed in court, as well as exceptions to the filing cutoff dates.
When someone has suffered serious or fatal bodily injuries because of another’s action (or failure to act), Illinois and Indiana state law establish legal bases for the injury victim to seek justice from the responsible parties. These legal bases (or “causes of action”) include allegations of negligence, premises liability, defective products, and malpractice. See, e.g.:
- Distracted Driving Accidents: How Can Victims Prove that a Distracted Driver Caused the Crash?
- Coronavirus Lawsuits and COVID19 Legal Claims in Indiana and Illinois: Wrongful Death or Serious Injury
- Legal Liability for Fatal House Fires in Indiana or Illinois
- Winter Accidents: Injured or Killed Because of a Dangerous Product
- Hospital Malpractice: Patient Deaths during Hospital Stay in Indiana or Illinois.
Lawmakers have also set specific time limits for these claims to be filed in court. They are called “statutes of limitation.” No matter how valid the legal claim and devastating the injuries to the victim and his (or her) family, these statutory deadlines are clear and concrete in their application.
Miss the legal deadline and the defendant can get the entire case dismissed based upon a “statute of limitations” defense. The judge will be unable to consider how unfair this may be to the injury victim.
Statutes of limitations exist for all sorts of actions, both civil and criminal. Prosecutors have deadlines for charging and prosecuting criminals under the criminal codes of Illinois and Indiana. For victims suffering bodily injury through accident or another’s violation of their duty of care, civil “personal injury” claims must be filed according to the state statute of limitations in place where the injury occurred. (Legally, this is called where “the cause of action accrued.”)
Different and distinct statutes of limitations apply to different types of personal injury cases in Illinois and Indiana.
Illinois Statute of Limitations: Deadlines to File Personal Injury Lawsuit
The State of Illinois has several specific deadlines for personal injury lawsuits to be filed. They include:
1. Personal Injury – Bodily Harm (General Rule of 2 Years)
The general rule for personal injury lawsuits in the State of Illinois is that they must be filed within two (2) years from the date that the victim’s “cause of action accrued.” See Ill. State. Ch. 735, Art. 5, § 13-202 (“735 ILCS”).
2. Medical Malpractice (2 Years or 4 Years or 8 Years or Longer)
Illinois lawmakers have passed specific laws for lawsuits based upon injuries caused by a health care provider (physician, hospital) in a medical malpractice claim. In these cases, there is a general two (2) year deadline that begins to run on the date that the mistake or error was made. Illinois law also allows that the deadline may be extended another two (2) years if evidence demonstrates the extension is necessary due to the victim’s lack of medical expertise and understanding of medical errors and mistakes. This is calculated from the time that the victim knew or reasonably should have known that there was a medical error which has caused him (or her) harm. See 735 ILCS 5/13-212.
There are further extensions to the medical malpractice statute of limitations in Illinois. For instance, child victims (under 18 years old) are given a legal extension to 8 years from the date of the medical mistake or error to file their malpractice lawsuit. However, they must have filed before their 22nd birthday or their claim is barred. Another extension under Illinois law to the malpractice filing deadline applies to victims who are mentally incompetent. Their limitations time clock does not start ticking under their legal disability has been removed. See 735 ILCS 5/13-212(b),(c).
3. Wrongful Death (General Rule of 2 Years)
In Illinois, wrongful death lawsuits based upon the state’s Wrongful Death Act must generally be brought within two (2) years from the date of death. However, these deadlines will also depend upon the underlying injuries and their corresponding causes of action. Exceptions may apply.
Indiana Statute of Limitations: Deadlines to File Personal Injury Lawsuit
The State of Indiana also has several specific deadlines for personal injury lawsuits to be filed. They include:
1. Personal Injury – Bodily Harm (General Rule of 2 Years)
The Indiana statute of limitations for personal injury cases states that the lawsuit must be filed within two (2) years after the cause of action accrues. Indiana Code § 34-11-2-4. As with Illinois, exceptions have been created in the law. For instance, fraudulent concealment of the harm by the party who caused it will stop the clock (“toll the deadline”) until their liability is discovered, or reasonably should have been discovered by the victim. See, Indiana Code § 34-11-5-1.
2. Medical Malpractice (General Rule of 2 Years)
Under Indiana law, victims of medical mistake by a hospital or physician have two (2) years from the date of when the error was made to file a lawsuit for medical malpractice. If the victim is under the age of 6 years old, then they have until their 8th birthday to file. There is an exception to this time frame: if the medical mistake has been fraudulently concealed, then the deadline to file is extended. Indiana common law recognizes tolling due to fraudulent concealment and the continuing wrong doctrine. See, Indiana Code § 34-18-7-1.
3. Wrongful Death (General Rule of 2 Years)
There is a standard deadline of two (2) years from the date of death for wrongful death claims to be filed of record under the Indiana Wrongful Death Statute. See Indiana Code §34-23-1-1.
For more, read: Wrongful Death: Indiana Statutes, Attorneys’ Fees, Trial Tactics.
Calculating the Time Deadline under Statute of Limitations
It is the responsibility of the injured person to determine which statutes of limitations (as well as their extensions and exceptions) apply to their particular circumstances. The injury victim must then make sure that their claims are filed within these legal deadlines. Calculating the right time deadline for filing the claim with the court can be complicated.
1. Gathering Discovery Rule Facts
In each matter, facts establishing that the deadline has been met must be gathered that meets legal evidentiary standards. This can be complex in instances where the “discovery rule” applies.
In both Illinois and Indiana, under the state discovery rule a limitations deadline may be extended in some instances when there are facts that show the victim reasonably could not have known of their injuries for a long time (and often, after the general time deadline of two (2) years has passed).
2. Changing Laws
Another complication in determining limitations deadlines is the changing laws of both Indiana and Illinois. Last year, for example, the Illinois statute of limitations for filing injury claims based upon toxic exposures on the job was extended. For details, read “More Time for Injured Workers to Seek Justice after Exposure to Toxins on the Job: New Illinois Statute.”
3. Coronavirus Pandemic Extensions
In 2020, the unprecedented national and global crisis of the Coronavirus Pandemic changed the daily lives of everyone in Indiana and Illinois. This included Executive Orders being issued by the governors of both states for citizens to stay at home.
Courts in both Illinois and Indiana were closed, with trial dockets and courtroom proceedings postponed. See, “Coronavirus Closings: Cook County Court System Effectively On Hold,” published by CBS-Chicago on March 13, 2020, and “Monroe County courts adjust operations amid coronavirus pandemic,” published by the Indiana Student on April 1, 2020.
The ability of plaintiffs in both Indiana and Illinois to finalize and file their initial pleadings in order to meet the limitations deadlines applicable to their cases will be impacted by the Coronavirus Pandemic. Likewise, the ability of plaintiffs to investigate their claims and determine whether there has been harm, and if things like the Discovery Rule applies to their case will be hampered by the COVID-19 Executive Orders to Stay-at-Home and corresponding closures.
How these plaintiffs overcome potential arguments of a statutory limitations bar by defendants in the future will have to be determined.
Deadlines for Filing Injury Claims
Victims of serious bodily injury must first deal with the immediate need of medical care and recovery, as well as coping with their lifestyle changes and the consequences of severe harm. However, personal injury victims and their families need to be aware of the legal deadlines that exist in both Indiana and Illinois on the filing of any lawsuits seeking justice for what has occurred.
Failure to meet a statute of limitations deadline can be a horrific injustice to the victim who then cannot force those who are legally liable for his or her injuries to take responsibility for what happened.
Those who have been seriously injured in an accident or illness caused by the acts of another, as well as their loved ones, may have avenues for justice available to them under the state laws of Indiana and Illinois. However, these claims can be time-barred under state law. Please be careful out there!
