Unanimous Illinois Supreme Court Applies the Discovery Rule to Wrongful Death and Survival Actions Alleging Medical Malpractice
On September 22, 2016, the Illinois Supreme Court held that the discovery rule found in section 13-212(a) of the Illinois Code of Civil Procedure applies to medical malpractice actions brought under both the Illinois Wrongful Death Act (740 ILCS 180/1, et seq. (West 2012)) and the Survival Act (755 ILCS 5/27-6 (West 2012)). See Moon v. Rhode, 2015 IL App (3d) 130613.
On May 18, 2009, the plaintiff’s 90-year-old mother, Kathryn Moon, was admitted to Proctor Hospital for a rectal prolapse. After undergoing subsequent surgery, Ms. Moon experienced numerous complications that eventually led to her death 11 days later. On February 26, 2010, the plaintiff requested his mother’s complete medical file from Proctor Hospital, which he received on March 10, 2010, and later sent to a medical consulting firm for review. On April 21, 2011, the plaintiff received an oral opinion that several of the doctors at Proctor Hospital were negligent in treating his mother. He received an additional written report with specific conclusions on May 2, 2011. Also two years later, on March 4, 2013, the plaintiff received a final report concluding that a further doctor, the defendant, Dr. Clarissa Rhode, had also been negligent in her treatment of Ms. Moon. On March 18, 2013 — almost four years since his mother’s death, but less than 2 years after receiving the initial oral report from the medical consulting firm — the plaintiff filed a complaint against Dr. Rhode.
Dr. Rhode moved to dismiss the plaintiff’s cause of action asserting that the claim was time-barred. The trial court granted the motion, holding that the complaint was untimely because it was not filed within 2 years of Ms. Moon’s death. A divided appellate court affirmed, holding that the discovery rule has no application to a wrongful death or survival action. See Moon v. Rhode, 2015 IL App (3d) 130613. The appellate court reasoned that the two-year statute of limitations for filing a complaint for wrongful death begins to run at the time of the decedent’s death and not after the plaintiff discovers the alleged medical negligence. The Supreme Court granted the plaintiff’s petition for leave to appeal. Moon v. Rhode, 39 N.E.3d 1004 (2015).
The Illinois Supreme Court recognized the issue as one of statutory construction, and focused on the language of section 13-212(a) of the Illinois Code of Civil Procedure, which states, in pertinent part, that:
[N]o action for damages for injury or death against any physician... arising out of patient care shall be brought more than 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known... the existence of the injury or death for which damages are sought in the action...
735 ILCS 5/13-212(a) (West 2012) (emphasis added).
In defining the term “injury,” the court quoted its earlier decision in Witherell, in which it held that knowledge of an ‘injury’ requires not only knowledge of the physical injury but also knowledge of its wrongful causation. The Court then has to decide whether the term ‘death’ in the phrase ‘injury or death’ should receive the same construction as its interpretation of the term “injury.” Relying on both Witherall and the majority of recent appellate authority, the court concluded that it should. The Court stated:
We agree with plaintiff that no cognizable reason exists for us to interpret “death” in a different manner than we have already interpreted “injury” in that sentence. We therefore conclude, consistent with our statutory interpretation in Witherell, that the statute of limitations in a wrongful death action alleging medical malpractice begins to run when a plaintiff knows or reasonably should know of the death and also knows or reasonably should know that it was wrongfully caused.
Moon v. Rhode, 2015 IL App (3d) 130613, ¶ 27. The court further stated that because the plaintiff’s action was premised upon medical malpractice, the statute of limitations specific to that claim (i.e. 735 ILCS 5/13-212(a)) trumped the two-year limit established in section 2(c) of the Wrongful Death Act.
Using similar reasoning, the Court also applied the discovery rule to medical malpractice suits brought pursuant to the Survival Act. Thus, the statute of limitations in a Survival Act claim is triggered on the date that the plaintiff discovers, or should reasonably have discovered that the injury or death was wrongfully caused. The court acknowledged that in a survival action, the representative steps into the shoes of the decedent, and as such it is the date that the decedent learns of her injury that is controlling. In this case, the Court recognized that Kathyrn Moon was unresponsive at the time of her death, and was therefore unable to discover any alleged negligence. The court stated that it saw:
no reason... to impose the statute of limitations constraints that the decedent would have faced had she lived on plaintiff[,] as [her] representative[,] without also allowing the benefits of the discovery rule that she would have been entitled to if her alleged injuries had not been so serious as to lead to her death.
After concluding that the discovery rule applied to the plaintiff’s causes of action, the Court remanded for further findings of fact as to when the plaintiff knew, or should reasonably have known that Kathryn’s death was wrongfully caused.
Please contact Simon Baker at email@example.com with any questions. A full copy of the decision is available here.