Illinois’s Cap for Medical Malpractice Damages

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 Compensatory And Punitive Damages

In the realm of medical malpractice settlements in Illinois, damages are typically categorized as compensatory or punitive.

Compensatory damages are intended to compensate the victim for losses such as medical bills and lost wages.

In contrast, punitive damages punish the defendant for particularly egregious or reckless conduct and act as a deterrent to others.

Calculating medical malpractice damages involves economic (like lost wages) and non-economic damages (like pain and suffering). It’s worth noting that the average payout for medical negligence can vary significantly depending on the severity of the malpractice and the jurisdiction in which the claim is filed.

Illinois’s Non-Economic Damages

While economic damages cover measurable costs, non-economic damages compensate for more intangible losses, such as pain, suffering, or loss of companionship.

While the debate over medical malpractice caps remains controversial, it’s important to understand their pros and cons. Proponents argue that caps can help reduce the skyrocketing costs of healthcare and malpractice insurance. On the other hand, critics believe caps can deprive victims of just compensation for their suffering.

Pain and Suffering

Pain and suffering” is a legal term used to describe both the physical and emotional stress caused due to an injury. It accounts for the actual physical pain that a person experiences, as well as the emotional and psychological toll. The pain and suffering can be ongoing, affecting the person’s quality of life, ability to work, and overall well-being.

Calculating pain and suffering is challenging, as it’s highly subjective and can vary from case to case. Factors considered may include the severity of the pain, the nature of the injuries, and the extent to which the injury affects your day-to-day life.

Loss of Companionship

Loss of companionship, also known as “loss of consortium,” generally applies to the injured party’s spouse or immediate family members. This damage seeks to compensate for the absence or diminishment of family relationships due to injuries sustained.

In medical malpractice, this could mean the injured person’s inability to maintain the same loving spousal relationship, parental responsibilities, or even friendships they had before the injury.

In legal terms, loss of companionship can cover several areas:

  • Loss of affection and love
  • Loss of sexual relations
  • Loss of moral support
  • Loss of companionship in activities and events

Just like pain and suffering, the loss of companionship is hard to quantify. Jurors or insurance adjusters may consider the family relationship’s stability, the injured party’s life expectancy, and the loss’s extent when determining the compensation amount.

History Of the Cap

Historically, Illinois has had a tumultuous relationship with caps on non-economic damages in medical malpractice cases. Although the state has tried to impose medical malpractice damages caps several times, the Illinois Supreme Court has ruled them unconstitutional.

In 2005, Illinois set a cap for non-economic damages at $500,000 for doctors and $1 million for hospitals. However, in 2010, the Illinois Supreme Court struck down the cap, stating that it violated the separation of powers by allowing the legislature to interfere with a jury’s ability to determine damages.

It should be noted that there are varying medical malpractice damage caps by state. The caps on damages by the state include some states having no caps and others setting limits on both economic and non-economic damages.

How Long Do You Have to Sue for Medical Malpractice in Illinois?

In Illinois, the statute of limitations for medical malpractice claims is generally two years from the date the victim knew or should have known about the injury. However, there are some exceptions.

The absolute limit is four years from the date of the malpractice, regardless of discovery. For minors, the limit is eight years from the date of the malpractice, but not after the minor’s 22nd birthday.

Here’s a walk-through of the steps involved in suing for medical malpractice

Consultation with a Medical Expert

Before initiating a lawsuit, it’s crucial to consult a medical expert to verify that the healthcare provider deviated from the standard of care. This ensures that your claim has merit.

Hire an Illinois Med Mal Lawyer

Hiring a knowledgeable medical malpractice attorney is important due to the complexities of these cases. They can guide you through the procedural aspects and help build a strong case.

Notice of Intent to File

Before formally filing a lawsuit, you must notify the healthcare provider of your intent to sue. This step can sometimes lead to a pre-litigation settlement.

Filing of an Affidavit of Merit

In Illinois, plaintiffs must file an “affidavit of merit” alongside the complaint. This affidavit confirms that the attorney has consulted with a qualified healthcare professional who believes there’s a reasonable and meritorious cause for filing the case.

Filing the Lawsuit

If pre-litigation settlement efforts don’t succeed, the next step is to file a formal complaint against the medical professional or facility. This document outlines the allegations and the legal basis for the claim.

Discovery Process

Once the lawsuit is initiated, both sides enter the “discovery” phase. This involves exchanging evidence, taking depositions, and reviewing medical records. It helps each party understand the strengths and weaknesses of the opponent’s case.

Negotiations & Mediation

After the discovery, attorneys from both sides may attempt to negotiate a settlement. If negotiations stall, the case might proceed to mediation, where a neutral third party facilitates discussions.

Mediation can be an effective way to resolve disputes without litigation. Here’s a deeper look.

Key Characteristics of Mediation
  • Neutrality: The mediator is a neutral party without a vested interest in the outcome. Their role is to facilitate communication, not to dictate a solution.
  • Confidentiality: Mediation sessions are typically confidential. This encourages open communication, as parties can discuss matters without fear that their words will be used against them in court.
  • Voluntary Participation: Mediation is generally voluntary, meaning both parties choose to participate. However, some courts might order mediation in specific cases, though the outcome remains non-binding unless both parties agree.
  • Flexibility: Mediation offers a flexible process tailored to the specific needs and dynamics of the parties involved. They can set the rules, choose the mediator, and decide on the time and place for the sessions.
  • Informality: Unlike courtroom proceedings, mediation is informal, focusing on problem-solving rather than strict legal procedures.
Mediation Process
  • Introduction: The mediator introduces everyone, explains the rules and the process, and sets the agenda.
    Opening Remarks: Each party can describe the dispute from their perspective without interruption.
  • Joint Discussion: The mediator might encourage a direct exchange between the parties, but this depends on the circumstances.
  • Private Caucuses: The mediator may hold private sessions with each party to discuss their positions’ strengths and weaknesses and explore potential solutions.
  • Negotiation: The mediator helps the parties negotiate a mutually agreeable resolution. This might involve clarifying misunderstandings, identifying areas of agreement, and facilitating compromise.
  • Closure: If the parties reach an agreement, the mediator ensures that all terms are clear. The agreement might be put in writing, though it depends on the preferences of the parties. If no agreement is reached, the mediator will discuss the next steps, including pursuing formal litigation.


If a settlement isn’t reached, the case moves to trial. Both sides present their arguments and evidence to a judge or jury. If the plaintiff prevails, the court will determine the compensation amount.


If either party disagrees with the verdict, they can appeal to a higher court.


After a favorable judgment or settlement, the final step involves collecting the awarded damages. Sometimes, this is straightforward, but it can get complicated if the defendant doesn’t have sufficient assets or medical malpractice insurance in Illinois insurance.

Medical malpractice lawsuits can be lengthy and emotionally taxing. It’s important to approach them with patience and the right resources. LegalMatch can assist you in finding a proficient Illinois personal injury lawyer familiar with the state’s medical malpractice laws and procedures.

Should I Consult an Attorney About Illinois’s Cap for Medical Malpractice Claim?

If you believe you’ve been a victim of medical negligence in Illinois, navigating the complex legal landscape of medical malpractice damage caps, insurance protocols, and the state’s regulations can be challenging. As there’s no medical malpractice cap in Illinois currently, understanding the potential value of a claim can be crucial.

Consulting with an Illinois medical malpractice lawyer can provide clarity and guidance. Using platforms like LegalMatch, you can easily find an experienced Illinois personal injury lawyer who can assist with your potential medical malpractice claim.

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