The discovery rule provides that under certain circumstances, a statute of limitations is tolled until the plaintiff knows not only of his or her injury, but knows or reasonably should know that the injury was likely negligently caused.
Does the discovery rule apply to the statute of limitations for wrongful death claims? The Illinois Supreme Court agreed to decide that issue recently, allowing a petition for leave to appeal in Moon v. Rhode, a decision from the Third District.
Moon started in 2009 when the ninety-year old decedent was admitted to the hospital for surgery. Nine days after the surgery, the decedent died. The court appointed plaintiff executor of the decedent’s estate the following month. Eight months later, he executed a HIPAA authorization to get the decedent’s medical records from the hospital. Fourteen months after receiving the records, the plaintiff asked a medical consulting firm to review the materials. In May 2011 – almost two years after the decedent’s death – the plaintiff received a written report from the consultants concluding that the decedent’s surgeon and primary care doctor had given her negligent care.
The plaintiff filed a negligence action against the defendant doctors in May 2011. Nearly two years later, in February 2013, he sent the decedent’s radiographs to another consultant for review. The second consultant’s report specifically concluded that the negligence of the defendant’s radiologist in reviewing the radiographs had caused her death.
A few weeks later, the plaintiff filed wrongful death and survival claims against the radiologist and her employer. The defendants moved to dismiss the claims as time-barred, and the Circuit Court agreed.
The Appellate Court affirmed. The plaintiffs cited Young v. McKiegue and Wells v. Travis for the proposition that the discovery rule applied in wrongful death claims, but the Appellate Court concluded that Young and Wells read language into the statute of limitations that just wasn’t there. The distinction between wrongful death and ordinary negligence actions, the Court found, was that wrongful death claims are entirely a creature of statute. The judiciary created personal injury actions, and is free to change their terms. Not so with the statutory creature of wrongful death.
The Court noted that the legislature has provided that a wrongful death and survival action against a physician must be filed within two years of the date on which the claimant knew or should have known “of the existence of the injury or death for which damages are sought.” Such language didn’t allow the courts to imply a discovery rule, and the Court concluded that Young and Wells were wrongly decided. Since it was undisputed that the wrongful death and survival claims had been filed more than two years after the plaintiff knew of the decedent’s death, the claims were time-barred. Justice Lytton dissented, arguing that the majority’s decision “conflicts with over 30 years of precedent.”
“We are well aware that this decision creates a split in the districts,” the majority’s decision concludes, “and therefore, we anticipate at some point hearing from the Supreme Court on the issue.” We expect a decision from the Supreme Court in eight to ten months.