Illinois Supreme Court Reverses Dismissal of Time-Barred Complaint Under Wrongful Death and Survival Acts

The appeal to the Illinois Supreme Court arose from the Circuit Court of Peoria County, which granted the motion of the defendants, Dr. Clarissa Rhode and Central Illinois Radiological Associates Ltd. The plaintiff — Randall Moon — filed a complaint under the Illinois Wrongful Act (740 ILCS 180/1, et seq.) and the Survival Act (755 ILCS 5/27-6). The complaint was dismissed as time-barred. The Illinois Appellate Court affirmed the dismissal and held that the two-year statute of limitations for filing the complaint began to run at the time of the decedent’s death and not after the plaintiff discovered defendants’ alleged medical negligence.

On May 18, 2009, Randall Moon’s mother, 90-year-old Kathryn Moon, was admitted to Proctor Hospital in Peoria, Ill., for rectal prolapse. On May 20, 2009, she underwent a perineal proctectomy. During her hospitalization, she experienced numerous complications including labored breathing, pain, fluid overload, pulmonary infiltrates, pneumoperitoneum, sepsis and an elevated white blood cell count.

On May 23, a CT scan of her chest and abdominal area was ordered. Dr. Rhode, a radiologist, read the CT scans on May 24, 2009. Randall W. Moon, who is Kathryn Moon’s son and the plaintiff in this case, returned from out-of-state to his mother’s bedside on the evening of May 27, 2009. Her oxygen levels had significantly dropped and she was not awake or responsive. Two days later she died in the hospital.

Randall Moon, an attorney and one of Kathryn’s four children, was appointed executor of his mother’s estate. Medical records were retrieved and the plaintiff contacted a medical consulting firm to review Kathryn Moon’s records.

On April 21, 2011, Randall Moon received Dr. Roderick Boyd’s oral opinion that Drs. Williamson and Salimath were negligent in treating Kathryn Moon after her admission to the hospital. It was Drs. Williamson and Salimath who did the peritoneal proctectomy. In the consulting medical report, Dr. Boyd was critical of the two doctors for waiting “almost a week to attend to treat the infection and supply sufficient oxygen” to their patient.

On May 10, 2011, the plaintiff filed the lawsuit against Drs. Williamson and Salimath alleging that they had chosen not to diagnose and/or timely treat Kathryn Moon’s pneumonia and respiratory distress.

Almost two years later, on Feb. 28, 2013, Kathryn Moon’s CT scans from May 2009 were reviewed by Dr. Abraham Dachman. On May 4, 2013, Dr. Dachman provided the plaintiff a report that he had reviewed the CT scans and Dr. Rhode failed to identify “large loculated extraluminal collection of fluid,” which a “reasonably, well-qualified radiologist and physician would have identified.” In addition, Dr. Dachman opined that Dr. Rhode’s failure to properly identify those findings caused or contributed to the injury and death of the patient.

On March 18, 2013, the plaintiff filed the instant cause of action pursuant to the Wrongful Death Act and the Survival Act claiming medical malpractice against Dr. Rhode and her employer, Central Illinois Radiological Associates Ltd. In that complaint, the plaintiff alleged that he did not discovery that Dr. Rhode had failed to diagnose the breakdown of the anastomosis until Feb. 28, 2013, when Dr. Dachman reviewed the CT scans that were done on May 23 and May 24, 2009.

The defendants filed a motion to dismiss the plaintiff’s complaint under Section 2-619(a)(5) of the Illinois Code of Civil Procedure. Defendants asserted that plaintiff’s cause of action was time-barred, citing both Section 12-212(a) of the Code and Section 2(c) of the Act, because it was filed more than two years after Kathryn’s death. The defendants also argued that plaintiff had sufficient information more than two years before he filed his complaint to put him on inquiry to determine whether misconduct was involved. Therefore, according to the defendants, even if the “discovery rule” applied, the record showed that the complaint was still untimely filed.

The trial court granted the defendants’ motion and dismissed the complaint with prejudice. The trial judge held that the “date from which the two-year statute [of limitations] should be measured,” barred the claim. A divided appellate court affirmed that dismissal order. The appellate majority held that plaintiff was required to file his complaint within two years of the date on which he knew or reasonably should have known of Kathryn’s death. The dissenting judge in the appellate court decision highlighted that the discovery rule contained in Section 13-212(a) of the Code does not apply to Wrongful Death or Survival actions and conflicts with more than 30 years of state and federal court precedent.

Based on the circumstances, the dissenting justice believed that a reasonable trier of fact could conclude that plaintiff did not possess sufficient information to know that Kathryn’s death was wrongfully caused until May 2011, when plaintiff received Dr. Boyd’s report in which case, plaintiff’s complaint, filed within two years of that date, would have been timely. The plaintiff’s petition for leave to appeal was granted. In addition, the Illinois Supreme Court allowed the Illinois Association of Defense Trial Counsel as well as the Illinois State Medical Society and American Medical Association leave to file amicus curiae briefs in support of the defendants.

A wrongful death cause of action is brought by the personal representative of the decedent to provide the surviving spouse and next-of-kin compensation for the pecuniary losses suffered by reasons of the decedent’s death. Turcios v. The DeBruler Co.¸ 2015 IL 117962. In contrast, the Survival Act does not create a statutory cause of action. It merely allows a representative of the decedent to maintain those statutory or common-law actions that had already accrued to the decedent before he or she died.

Since the 1969 decision in Rozny v. Marnul, 43 Ill.2d 54, the Illinois Supreme Court discussed the balancing of when a plaintiff had become aware of his or her rights within the statutory period as measured from the time such facts occurred. The court stated that the ends of justice are served by permitting plaintiff to sue within the statutory period computed from the time at which he knew or should have known of the existence of the right to sue.

In a more recent case, the Illinois Supreme Court reiterated that the purpose of the discovery rule is to “ameliorate the potentially harsh effect of a mechanical application of the statute of limitations that would result in it expiring before a plaintiff even knows of his cause of action.” Henderson Square Condominium Association, 2015 IL 118139.

In this case, the plaintiff urged the Illinois Supreme Court to apply the discovery rule found in § 13-212(a) of the Code to his wrongful death claim and conclude that, where a death is at issue in a medical malpractice claim, the two-year statute of limitations should begin to run only when there is knowledge of the death and the claimant knows or should have reasonably known that it was wrongfully caused.

Pursuant to the plain language of §13-212(a) of the Code, within a four-year statute of repose, any claim of malpractice against a physician or hospital must be filed within two years of the date on which the claimant knew, or through the use of reasonably diligence should have known, of the existence of the injury, damages or death have been sought. The defendants assert that this statutory language omits any hint of the discovery of wrongful conduct in a wrongful death action.

The court stated that there is a long line of appellate court decisions that have applied the discovery rule to wrongful death cases alleging medical malpractice.

In conclusion, the Illinois Supreme Court found in §13-212(a) of the Code that it is applicable to plaintiff’s wrongful death and survival action alleging medical malpractice. Accordingly, the judgment of the appellate court affirming the circuit court’s dismissal of plaintiff’s complaint is reversed. The case is remanded to the circuit court for further proceedings consistent with the Illinois Supreme Court’s opinion.

Randall W. Moon v. Clarissa F. Rhode, et al., 2016 IL 119572 (Sept. 22, 2016).

Kreisman Law Offices has been handling wrongful death cases, medical negligence lawsuits, birth injury lawsuits and nursing home abuse and negligence cases for individuals and families who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 40 years in and around Chicago, Cook County and its surrounding areas, including Hickory Hills, Summit, Bridgeview, Bedford Park, Burbank, Berkeley, Elmhurst, Villa Park, Oakbrook Terrace, Oakbrook, Hinsdale, Willowbrook, Burr Ridge, Western Springs, Arlington Heights, Antioch, Wheeling, Deerfield, Northbrook, Chicago (Little Village, Lawndale, Garfield Park, Humboldt Park, Roscoe Village, Polish Village, Mayfair, Albany Park, Irving Park, Lincoln Square), Park Ridge and Elk Grove Village, Ill.