Illinois Appellate Courts Considers Three Statutes Including that of the Medical Malpractice Statute of Repose and the Illinois Wrongful Death Act

On Aug. 4, 2011, Jill Prusak filed a medical malpractice case within both the two-year statute of limitation and four-year statute of repose under Section 13-212(a). The lawsuit contained a two-count complaint against the defendants, University of Chicago Medical Center and other medical providers who have since been dismissed from the case. It was alleged that Dr. Rama Jager misdiagnosed Prusak’s macular pathology and that this misdiagnosis led to the defendants’ choosing to not recognize nervous system lymphoma.

The first count alleged negligence against the University of Chicago defendants and asserted that Dr. Jager was an agent or apparent agent of the University of Chicago defendants.  The second count of the complaint made the same allegations with respect to Advocate defendants and the Christ Hospital defendants.

Prusak died on Nov. 24, 2013 after the expiration of the four-year statute of repose. On March 11, 2014, the trial court granted Prusak’s daughter, Sheri Lawler, leave to file an amended complaint, substituting herself as party plaintiff and as the executor of Prusak’s estate.

With the court granting that motion, Lawler filed a four-count first amended complaint on April 11, 2014. Two counts alleged claims under the Illinois Survival Statute (755 ILCS 5/27-6) for injuries suffered by Prusak prior to her death. The other two counts were for wrongful death. All four counts allege the same acts of negligence and operative facts as the originally filed complaint.

On May 9, 2014, the University of Chicago defendants filed an answer to Count II, the survival claim, and moved to dismiss Count I, the wrongful death claim pursuant to Section 2-619(a)(5) of the Illinois Code of Civil Procedure. The University of Chicago defendants argued that the medical malpractice statute of repose (Section 13-212(a)) barred Lawler’s wrongful death claim. Defendants Dr. Jager and University Retina and Macula Associates filed a similar motion to dismiss on May 29, 2014.

On Sept. 17, 2014, the trial judge entered a written order granting defendants’ motions to dismiss Count I (wrongful death) of the amended complaint with prejudice. The court found that the wrongful death claims were only valid “if the deceased was not time-barred to bring the action at the time of his or her death.” The court stated that because the wrongful death claims were added in the amended complaint in April 2014, more than 4 years after the date of her last medical treatment in July 2009, the claims were barred by the statute of repose, “unless the Court finds that Plaintiff’s wrongful death claims relates back to her original medical negligence claim.”

The court held that the relation back doctrine did not apply to these cases “because there is no precedent, as shown from the absence of medical malpractice cases where courts allow plaintiffs to file a claim after the four-year period expired.”

On appeal, Lawler argued that under a correct interpretation of the relevant statutes, a wrongful death action can relate back to the original complaint even after four years have elapsed since the last date of the alleged negligent medical treatment. Lawler argued that the relation back doctrine should apply because the original claim supplied defendants with the information necessary to prepare the defense in the amended claims.

The court stated that this case presented a classic clash of apparently conflicting statutes, which requires us to assess each relevant statute to ensure they operate together consistently with their legislative purposes. The court went on to analyze the Wrongful Death Act concluding that the statute provides the exclusive remedy available when death occurs as a result of tortious conduct. Murphy v. Martin Oil Co., 56 Ill.2d 423, 426 (1974).

The court then turned to the limitations period for filing a medical negligence claim under Section 13-212(a) of the Code which establishes the time limitation and repose for filing medical malpractice actions against medical providers.  This court in interpreting the Illinois Supreme Court’s previous decisions, it concluded that the cases were distinguishable from this case for one simple, but crucial basis.  The Supreme Court did not consider the relation back doctrine, therefore, did not have the opportunity to consider the issue presented in this case.

The Illinois Appellate Court then turned to the application of the relation back doctrine to the statute of repose.  The defendants argued that a host of substantive and procedural differences existed between Lawler’s wrongful death claim and the survival claim she is pursuing in Prusak’s name.

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 which allegedly caused her death because here, unlike the decedent in the case of Real v. Kim, 112 Ill.App.3d 427 (1983), Prusak had already filed a cause of action for medical negligence. If Prusak had not filed a medical negligence action prior to her death, the four-year repose period would have already expired, preventing Lawler from seeking a wrongful death claim under the Real decision.

Accordingly, based on the holding in Real, 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’” Id. at 432. The court concluded that in applying all 3 of these statutes, the relation back doctrine has been frequently applied to permit an amended complaint against the defendant medical providers when they received adequate notice of the same operative facts leading to the alleged medical negligence statues in an earlier, timely filed complaint. See Castro v. Bellucci, 338 386, 394-95 (2003) (finding amended complaint related back because the defendant hospital was informed in the second-amended complaint, filed before the expiration of the medical malpractice statute of limitation and repose, of the plaintiff’s claim that symptoms of a predictive stroke were misdiagnosed).

For these well-considered reasons, the Illinois Appellate Court reversed and remanded the case vacating the dismissal order and sending the cases back for further disposition.

Sheri Lawler, Executor of the Estate of Jill Prusak v. University of Chicago Medical Center, et al.,  2016 IL App (1st) 143189 (March 25, 2016).

Kreisman Law Offices has been handling wrongful death cases, medical negligence cases, birth trauma injury cases and physician negligence cases for individuals and families who have been injured or killed by the negligence of a medical provider for more than 40 years, in and around Chicago, Cook County and its surrounding areas including, Riverdale, Alsip, Barrington, Clarendon Hills, Deerfield, South Holland, Homewood, Evanston, Skokie, Niles, Morton Grove and Des Plaines, Ill.

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