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Illinois Appellate Court Clarifies Statute of Limitations Issues in Medical Malpractice Cases

     In a recent decision, the Illinois Third District Appellate Court ruled that the discovery rule does not apply to wrongful death actions brought against healthcare providers.  The decision may have a far-reaching impact on the timeframe in which medical malpractice cases involving the death of the patient can be brought. 

      In Moon v. Rhode, 2015 IL App (3d) 130613, the plaintiff was the executor of the decedent’s estate.  The plaintiff filed wrongful death and survival actions against the defendant, a radiologist, alleging medical malpractice.  The plaintiff filed suit almost immediately after he learned of the defendant’s alleged negligence.  However, this was almost four years after the decedent’s death. 

      The trial court dismissed the lawsuit under the two-year statute of limitations for wrongful death actions.  The plaintiff appealed, arguing that his claim was timely under the “discovery rule.”  The discovery rule provides that the statute of limitations does not begin to run until the plaintiff knows, or reasonably should know, of both the injury and that the injury was wrongfully caused.
       
      The appellate court rejected the plaintiff’s argument and concluded the discovery rule did not apply.  It concluded that the plaintiff’s lawsuit was barred by the statute of limitations because it was not filed within two years of death.  The Wrongful Death Act requires that suits be filed within two years of death.  740 ILCS 180/2(c).  In addition, the statute of limitations for suits against healthcare providers requires that suit be filed within 2 years of the date which the plaintiff knew, reasonably should have known, or received written notice “of the existence of the injury or death for which damages are sought in the action,” whichever occurs first.  735 ILCS 5/13-212(a).  The court ruled that this statute did not create a discovery rule: “The required knowledge is of the death or injury, not of the negligent conduct. If the General Assembly wanted to provide a limitations period in the Act commencing when one had knowledge of the negligent conduct, it would have done so.”  
           
      The Moon court noted that common-law medical malpractice actions for personal injury are still subject to the discovery rule.  However, both wrongful death actions and survival actions are not common-law actions: they were created by statute, and the General Assembly did not use statutory language allowing for the discovery rule in these actions.
     
      The Moon court’s decision conflicts with a number of earlier appellate court decisions which applied the discovery rule in wrongful death actions against physicians.  On September 30, 2015, the Illinois Supreme Court granted review of the Moon decision, so the conflict in authority should be resolved in short order.  But at least for now, medical malpractice defendants in wrongful death suits may use Moon to argue that the statute of limitations runs from the date of the decedent’s death.  This bright line rule may allow for the dismissal of claims that have been filed after two years, and shortens the window in which plaintiffs can file suit.   

      Bozeman, Neighbour, Patton, & Noe, LLP, offers a full range of legal services, including defense of medical malpractice cases.  For more information, please contact one of our Civil Litigation attorneys.