Illinois Appellate Court Reverses Dismissal of Lawsuit Alleging Wrongful Death and Medical Malpractice

The family of Jill Prusak brought a medical malpractice lawsuit against a doctor and two hospitals. Prusak died in November 2013. The lawsuit brought by Sheri Lawler on behalf of the family of Jill Prusak was filed in April 2014 within the two-year statute of limitations for a wrongful-death case. The lawsuit contended that the medical malpractice occurred in November 2007 when a doctor “failed to order appropriate diagnostic testing,” which would have revealed that Prusak’s symptoms were caused by cancer.

Section 13-212(a) sets out a two-year statute of limitations for medical-malpractice claims and ends by declaring: “But in no event shall such action be brought more than 4 years after the date on which the act or omission or occurrence alleged in such action to have been the cause of such injury or death.”

The lawsuit for medical malpractice was filed in August 2011 within the two-year statute of limitations so the case would continue. Utilizing the relation-back statute (Section 2-616(b)), the Prusak family argued that the complaint saved the wrongful-death claim from the statute of repose.

Reversing an order that dismissed Lawler’s claim as having been extinguished by the statute of repose, the Illinois Appellate Court for the First District ruled on “an issue of first impression in Illinois regarding the interplay of three statutes” and concluded, “The relation-back doctrine applies so the wrongful-death action is not barred.”

Illinois courts have long held that in a wrongful-death action, “the cause of action is the wrongful act, neglect or default causing death, and not merely the death itself.”  Wyness v. Armstrong World Industries, 131 Ill.2d 403 (1989).

Under the Illinois Wrongful Death Act brought in the names of the personal representatives of such deceased persons, and, except as otherwise hereinafter provided, the amount recovered in “every such action shall be for the exclusive benefit of the surviving spouse and next-of-kin of such deceased person.  In every such action, the jury may give such damages as they shall deem to be fair and just compensation with reference to the pecuniary injuries resulting from such death, including damages for grief, sorrow and mental suffering, to the surviving spouse and next-of-kin of such deceased person. . . .  Every such action shall be commenced within two years after the death of such person.”  740 ILCS 180/2.

The Illinois Wrongful Death Act provides the exclusive remedy available when death occurs as a result of a tortious conduct.

In that Wyness case, the defendants argued that the two-year statute of limitations for personal-injury actions should have started running before the decedent’s death because the plaintiff knew of the decedent’s injuries and the cause of those injuries before death. The Illinois Supreme Court disagreed, explaining:

“The ‘injury’ which opens the door to initiation of a personal-injury suit is not the same ‘injury’ which opens the door to a wrongful-death suit.  Though both actions require an individual to have been harmed in some way through the actions of another, this injury at the hands of another is not the sole thread which weaves the fabric undergirding both causes of action.  A wrongful-death action can only be instituted for the benefit of the next-of-kin who has suffered an ‘injury’ because a family member has died when that family’s member death resulted from an injury wrongfully caused by another.

The precipitating ‘injury’ for the plaintiffs in a wrongful death action, unlike the injury in a personal injury action, is the death; that the death must also be the result of a wrongfully caused injury suffered by the deceased at the hands of another does not alter the analysis. The wrongful injury suffered by the deceased is the distinguishing characteristic of the particular death.” Wyness, 131 Ill. 2d at 414-15.

In the Wyness case, the Supreme Court explained the distinction between pecuniary injury by reason of the decedent’s death. The decedent, however, was the person who suffered the actual physical injury which led to the death. With respect to that physical injury, the beneficiaries of the decedent are said to step into the shoes of the decedent.

A wrongful death action will lie where the deceased had a claim that was not time-barred on or before his death.

The Wrongful Death Act requires a plaintiff to sue within two years from the time of death.  However, because the plaintiff’s rights are derivative of those which the decedent himself possessed, that time may be impacted by other limitations provisions, which may supersede the wrongful-death statute and recast the time in which the action may be brought.

The court went on to explain that the limitations for filing a medical negligence under Section 13-212(a) of the code establishes limitation and repose periods for filing medical-malpractice actions against medical providers.

Section 13-215 sets forth the statute of repose in a medical negligence case as being not more than four 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. 735 ILCS 5/13-212(a).

As to the relation-back doctrine found in Section 2-616, the statute provides:

“The cause of action, cross claim or defense set up in any amended pleading shall not be barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if the time prescribed or limited had not expired when the original pleading was filed, and if it shall appear from the original and amended pleadings that the cause of action asserted, or the defense or cross claim interposed in the amended pleading grew out of the same transaction or occurrence set up in the original pleading, even though the original pleading was defective in that it failed to allege the performance of some act or the existence of some fact or some other matter which is a necessary condition precedent to the right of recovery or defense asserted, if the condition precedent has in fact been performed, and for the purpose of preserving the cause of action, cross claim or defense set up in the amended pleading, and for that purpose only, an amendment to any pleading shall be held to relate back to the date of filing of the original pleading so amended.” 735 ILCS 5/2-616(b).

In this case, at the time of Prusak’s death, Section 13-212(a) would not have precluded her from maintaining an action for the conduct that allegedly caused her death because Prusak had already filed a cause of action for medical negligence.

If the medical malpractice lawsuit had not been filed prior to Prusak’s death, the four-year repose period would have already expired, preventing Lawler from seeking a wrongful-death claim.  Accordingly, Section 1 of the Wrongful Death Act should not preclude Lawler from bringing a wrongful-death claim for the same alleged malpractice because Prusak could have maintained a cause of action for damages “if death had not ensued.” 740 ICLS 180/1.

Here, this was not a new case filed after the expiration of the four-year statute of repose, but it was an active case at the time of Prusak’s death and was filed within the four-year repose period.  Therefore, this case involved the filing of an amendment to an action that was already timely filed and pending when the decedent died.  The relation-back doctrine was the saving statute that allowed this case to now proceed.  Accordingly, the appellate court reversed the dismissal of the case and remanded it for further disposition.

Lawler v. University of Chicago Medical Center, 2016 IL App (1st) 143189 (March 25, 2016).

Kreisman Law Offices has been handling wrongful-death lawsuits, medical malpractice cases, birth trauma litigation and hospital negligence cases for individuals and families who have been injured by the negligence of a medical provider for more than 40 years, in and around Chicago, Cook County, Lake County, Will County, McHenry County and its surrounding counties including, Arlington Heights, Inverness, Long Grove, Naperville, Orland Park, South Holland, South Barrington, Chicago Heights, Blue Island, River Grove, Clarendon Hills, Vernon Hills, Schiller Park, Schaumburg, Chicago (Rogers Park, Andersonville, Albany Park, Jefferson Park, Jackson Park, Hyde Park, South Shore), Palos Park, Crystal Lake, Grayslake and Flossmoor, Ill.

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