How Long do I Have to File a Brain Injury Lawsuit in Illinois?

You only have two years because your brain injury claim is for bodily harm. Illinois law affords you two years from the date of the incident to file a lawsuit. 735 ILCS 5/13-202. However, this clock does not start running until you discover the injury in the first place. If your suit is a medical malpractice action, then you cannot file it 4 years from the date of the injury regardless of when you discovered the cause of action. 735 ILCS 5/13-212. Likewise, if your suit is a products liability action, you cannot file it beyond 10 years from the date of when the first user bought the product. 735 ILCS 5/13-213(b).

If you’re filing a negligence action for your brain injuries, then 735 ILCS 5/13-202 governs:

“Actions for damages for an injury to the person, or for false imprisonment, or malicious prosecution, or for a statutory penalty, or for abduction, or for seduction, or for criminal conversation that may proceed pursuant to subsection (a) of Section 7.1 of the Criminal Conversation Abolition Act, except damages resulting from first degree murder or the commission of a Class X felony and the perpetrator thereof is convicted of such crime, shall be commenced within 2 years next after the cause of action accrued…”

If your brain injury case is for medical malpractice, then section (a) of 735 ILCS 5/13-212 applies:

“Except as provided in Section 13-215 of this Act, no action for damages for injury or death against any physician, dentist, registered nurse or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first, but in no event shall such action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death.”

If your brain injury action is for products liability, then you must follow section (b) of 735 ILCS 5/13-213:

“Subject to the provisions of subsections (c) and (d) no product liability action based on any theory or doctrine shall be commenced except within the applicable limitations period and, in any event, within 12 years from the date of first sale, lease or delivery of possession by a seller or 10 years from the date of first sale, lease or delivery of possession to its initial user, consumer, or other non-seller, whichever period expires earlier, of any product unit that is claimed to have injured or damaged the plaintiff, unless the defendant expressly has warranted or promised the product for a longer period and the action is brought within that period.”

The point at which the time clock starts running on your brain injury case is known as accrual. As noted above, you typically have two years once it begins to accrue. But how will you know when it starts? Broadly speaking, it starts whenever you realize that you were injured. Alternatively, as a backstop, the law inputs a check to start the clock in certain situations: whenever you should have realized your injuries. Of course, there are exceptions. For instance, Illinois law gives children more time to pursue their brain injury lawsuits. They also afford victims of fraud an additional period to file their complaints for damages. If your injuries were latent and presented after a long period of time, you too might get relief from the original window. Therefore, the actual time you have to file and when the clock goes off depend heavily on the circumstances of your accident. Consult an attorney today to make sure that you file your brain injury claims on time.