All Posts

Posted in Personal Injury on February 1, 2022   |  by Gary Burger

Top 10 Differences Between Illinois and Missouri Injury Law

Top 10 Differences Between Illinois and Missouri Injury Law

Q: Would you rather be in Illinois or Missouri for you injury claim?

A: It depends (such a lawyer answer)

1. Statute of Limitations

Illinois has a 2-year statute of limitations to file a lawsuit for Injury Claims. (735 ILCS 5/13-202).

Missouri has a 5-year statute of limitations to file a lawsuit for general negligence (R.S.Mo. § 516.120); a 2-year SOL to file a lawsuit for medical malpractice (R.S.Mo. § 516.105); and a 3-year SOL to file a lawsuit for wrongful death (R.S.Mo. § 516.105).

2. Wrongful Death Damages

The Illinois Pattern Jury Instructions for wrongful death allow a plaintiff to recover damages for grief, sorrow and mental suffering resulting from the loss of the decedent. (IPI 31.01).

The Missouri Approved Jury Instructions do not allow such damages in a wrongful death case. (MAI 5.01)

3. Noneconomic Damages in Medical Malpractice Cases

In Missouri, there is a legislative cap on noneconomic damages recoverable in medical malpractice cases. Noneconomic damages include pain and suffering, disability and disfigurement.

The current cap for non-catastrophic injuries is $450,098 and the current cap for catastrophic injuries is $787,671. (R.S.Mo. § 538.210.8). The statute provides for an annual increase in these caps of 1.7 percent.

Illinois does not have statutory caps on noneconomic damages in medical malpractice claims or any types of cases.

Before we continue, here's a portion of my FB live show where I rattled off my top 10 differences in IL and MO law

4. Comparative Negligence

Illinois and Missouri have different laws concerning comparative negligence.

Illinois follows the “modified comparative negligence” rule which holds that an injured party may recover damages only if he or she is less than 50 percent at fault for the injury or damages. (735 ILCS 5/2-1116).

Missouri, on the other hand, follows the “pure comparative negligence” law which places no cap on how much an injured party can be found at fault and still recover damages. (R.S.Mo. § 537.067).

In both states the injured party’s damages will be reduced by the percentage of fault the jury assigns them.

5. Attorney’s Fees in Medical Malpractice Cases

In Illinois, an attorney’s contingency fee in medical malpractice actions is capped at 33 1/3 percent of the total recovery (735 ILCS 5/2-1114) whereas in Missouri there is no such cap.

6. Lien Reduction

Under the Missouri lien reduction statute, if the liens of medical providers exceed 50 percent of the injured person’s recovery, each medical provider is entitled to share in up to 50 percent of the recovery on a pro rata basis.

Importantly, any medical provider who receives benefits under the statute is forever barred from pursuing the injured party for additional costs. (R.S.Mo. § 430.225).

In Illinois, the Lien Act caps the total amount of all liens at 40 percent of the injured party’s recovery. However, there is no bar to the medical provider pursuing the balance of the medical costs from the injured party if they receive benefits under the statute. (770 ILCS 23/1, et. seq.).

Before we continue, here's a video I did a while ago on discovery disputes in Missouri and Illinois.

7. Evidence of Medical Expenses

Under Illinois law, a plaintiff may present evidence to a jury of the amount of medical bills charged by medical providers who treated the plaintiff, whereas in Missouri a plaintiff may only submit evidence of the “actual cost” of medical care, or the amount actually paid. (R.S.Mo. § 490.715).

8. Premises Liability

In premises liability cases involving snow and ice, Illinois and Missouri hold property owners to different standards of care.

In Illinois, when a property owner knows or in the exercise of reasonable care would discover the condition and should realize the condition involves an unreasonable risk of harm, he or she can be liable for the harm caused by the snow or ice.

Missouri has a broader standard—when a property owner knew or by using ordinary care could have known of the dangerous condition, he or she can be liable.

9. Submitting Business Records in Evidence

In Missouri, a plaintiff is allowed to enter medical records in evidence with a business records affidavit, provided the plaintiff served all parties with copies of the medical records and business records affidavit at least seven days before trial. (R.S.Mo. § 490.692).

However, Illinois does not have a statute which allows medical records to be entered into evidence with a business records affidavit. Consequently, in Illinois you either have to take subpoenaed records depositions of the medical provider, get the other party to admit to admissibility by serving a request for admissions, or have the other party stipulate to admissibility of the medical records.

10. Disclosure of Experts

Under the Missouri Rules of Civil Procedure, a party must disclose expert witnesses in written discovery by providing the expert’s name, address, occupation, place of employment, qualifications to give an opinion, the general nature of the subject matter on which the expert witness is expected to testify and the expert’s hourly deposition fee. (Mo. R. Civ. P. 56).

Under Illinois Supreme Court Rule 213(f) independent expert witnesses and controlled expert witnesses are disclosed differently. A party must disclose an independent expert witnesses’ identity and address, the subject matter of the expert’s testimony, and the opinions to which they are expected to testify.

For controlled experts, a party must disclose the same information required for independent experts plus the qualifications of the controlled expert and any reports prepared by the expert about the case.