Illinois Appellate Court Agrees That Medical Malpractice Lawsuit for Wrongful Death Be Dismissed for Missing the Statute of Limitations Filing Date

Three years after the death of Kathryn Moon, the plaintiff, Randall Moon, who served as executor of his mother’s estate, filed a wrongful death and survival action lawsuit against the defendants, Dr. Clarissa Rhode and Central Illinois Radiological Associates Ltd. The defendants filed a motion to dismiss the plaintiff’s complaint stating that the complaint was filed untimely. The trial judge granted the defendants’ motion.

The plaintiff appealed arguing that the trial court was wrong in granting the defendants’ motion. The plaintiff contended that the discovery rule applied in that the statute of limitations did not begin to run until the date in which he knew or reasonably should have known of the defendants’ negligent conduct.

The decedent was Kathryn Moon, then 90, who was admitted to Proctor Hospital on May 18, 2009. Two days later, Dr. Jeffrey Williamson performed surgery on her. She remained in the hospital from May 20 to May 23, 2009 and then was seen by a different doctor from May 23 to May 28. She died on May 29, 2009.

During her hospital stay, she had many different medical problems, including labored breathing, pain, fluid overload, pulmonary infiltrates, and pneumo-peritoneum. Moon underwent CT scan on May 23 and May 24. Dr. Clarissa Rhode was the radiologist who read and interpreted the two CT scans.

The court had appointed the plaintiff, her son,  who is an attorney, as executor of his mother’s estate in June 2009. Eight months later, in February 2010, Moon executed a Health Insurance Portability and Accountability Act (HIPAA) authorization to retrieve his mother’s medical records from Proctor Hospital. Moon received the records in March 2010.

In April 2011, fourteen months after receiving the records, plaintiff contacted a medical consulting firm to review the medical records. At the end of April 2011, Moon received a verbal report from Dr. Roderick Boyd, stating that Dr. Williamson and Dr. Salimath were negligent in treating Kathryn Moon. On May 1, 2011, Moon received a written report from Dr. Boyd setting forth his specific findings of negligence against the two doctors.

On May 10, 2011, the plaintiff filed a separate medical negligence lawsuit against Drs. Williamson and Salimath. On March 8, 2012, the plaintiff testified at his deposition that “even though [my mother] was fairly old, my impression was that she was doing okay, and that, you know, she should have gotten better treatment than she did.”

In February 2013, almost four years after his death and almost three years after receipt of her medical records, Moon sent radiographs to Dr. Abraham Bachman for his review. On Feb. 28 2013, Dr. Bachman reviewed the May 24, 2009 CT scan. Dr. Bachman provided a report stating that the radiologist who read and interpreted the CT scan chose not to identify the breakdown of anastonsis, which a “reasonably well-qualified radiologist and physician would have identified.” In addition, Dr. Bachman stated that the radiologist’s failure to properly identify the findings caused or contributed to the injury and death of the patient. On March 18, 2013, Moon filed both a wrongful death and survival claim against Dr. Rhode and her employer, Central Illinois Radiological Associates Ltd. The plaintiff alleged that he did not discover that Dr. Rhode was negligent until Dr. Bachman reviewed the CT scans.

After the trial judge dismissed Moon’s lawsuit against Dr. Rhode and her practice, he appealed to the Illinois Appellate Court, which affirmed the trial judge’s dismissal order. Moon relied on the discovery rule in that he said it was not apparent to him at the time of his mother’s death that the statute of limitations applicable to medical malpractice actions was two years and the discovery rule here did not apply.

Moon relied on §13-212(a) of the Illinois Code of Civil Procedure, 735 ILCS 5/13-212(a). The appeals panel, however, stated that §13-212 does not create a cause of action. Instead, it merely places a limitation on a filing of medical practice actions. Here, plaintiff’s cause of action was for wrongful death, a cause of action that did not exist at common law. The court stated that the discovery rule cannot be found in the plain language in either the Wrongful Death Act or §13-212(a). Personal injury actions were born of the common (judge-made) law and are susceptible to changes by the judiciary. Not so with respect to wrongful death actions, which are creatures of the legislature. Likewise, at common law, the personal injury action died with you. The Survival Act, too, is a creature of the legislature (755 ILCS 5/27-6).

In this case, applying the limitation period set forth in section 13-212(a) to the present case, Moon had two years from the date on which he knew or should have known of his mother’s death to file a complaint (735 ILCS 5/13-212(a)). It is undisputed that the plaintiff filed the action more than two years after he knew or should have known of her death. Therefore, we need not discuss the situation if plaintiff filed the medical malpractice suit within two years of learning of the death, but more than two years after the death.

The court also said there are some appellate courts in Illinois that have applied the discovery rule to wrongful death actions when circumstances surrounding the death permitted an extension of time. Fure v. Sherman Hospital, 64 Ill.App.3d 259 (1978); Pracnik v. Sport Aero, Inc., 42 Ill.App.3d 330 (1976). In the Pacznik case, the court held that the cause of action for wrongful death did not accrue until the aircraft wreckage was discovered, despite the fact that the accident happened more than two years and eight months prior to the discovery.

The appeals panel further critiqued the dissent that was filed in this case. The dissent argued that the discovery rule would apply and gave cases where that would be the case. The majority again referred back to the clear and unambiguous language in §13-212(a) that the statute of limitations begins to run when the plaintiff knows or should have known of the defendant’s wrongful conduct that contributed to the death. The same would be true with respect to the Survival Action. The court stated that we strictly construe a statute that is in derogation of common law. In re W.W., 97 Ill.2d at 57. At the very latest, the limitations period for a Survival Action begins to run when the injured party dies. In conclusion, the Illinois Appellate Court stated that the plaintiff filed his complaint long after he had sufficient information, which put him on inquiry to determine whether actionable conduct was involved. In other words, he knew when his mother died yet he waited more than two years to file the claim. The trial court did not err in granting defendants’ motion to dismiss. Thus, the decision to dismiss was affirmed.

The dissent stated that the majority’s conclusion that the discovery rules set forth in §13-212(a) does not apply to wrongful death or survival actions conflicts with over 30 years of precedent. (See Advincula v. United Blood Services, 176 Ill.2d 42-43 (1996)).

Randall Moon, Executor of the Estate of Kathryn Moon v. Clarissa Rhode, M.D. and Central Illinois Radiological Associates, Ltd., 2015 IL App (3d) 130613 (April 10, 2015).

Kreisman Law Offices has been handling medical malpractice cases, birth injury cases, wrongful death 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 38 years in and around Chicago, Cook County and its surrounding areas, including Calumet City, Orland Park, Arlington Heights, Lemont, Lockport, Long Grove, River Grove, Clarendon Hills, Chicago (Rogers Park, Jefferson Park, Lincoln Square, Bucktown, Garfield Park, Ashburn, Austin, Lawndale, Bridgeport, East Side, Marquette Park), Wilmette, Highwood, Highland Park, Northfield and Glenview, Ill.

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