The discovery rule provides that under certain circumstances, the 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 wrongful death claims? The Illinois Supreme Court debated that issue last month, hearing oral argument in Moon v. Rhode. Our detailed summary of the underlying facts and lower court rulings in Moon is here.
In 2009, plaintiff’s ninety-year old decedent was admitted to the hospital for surgery. She died nine days after the operation. The following month, the court appointed the plaintiff executor of the decedent’s estate.
Eight months later, the plaintiff executed a HIPAA authorization to get the decedent’s medical records. Fourteen months after that, 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 been negligent.
The plaintiff sued the defendant doctors in May 2011. In February 2013, the plaintiff sent the decedent’s radiographs to another consultant for review. The second consultant concluded that the negligence of the defendant’s radiologist in reviewing the radiographs had led to her death. A few weeks later, the plaintiff filed a wrongful death claim against the radiologist. The defendants moved to dismiss the claims under the statute of limitations, the Circuit Court granted the motion, and the Appellate Court affirmed.
Counsel for the executor began the Supreme Court argument. He explained that the Appellate Court had held that the statute of limitations begins to run regardless of whether the plaintiff had reason to know that the injury was caused by a wrongful act – the statute begins when the plaintiff becomes aware of the decedent’s death. According to counsel, the defendants had argued before the Appellate Court that there was no basis on the facts to apply the discovery rule to extend the statute – the first time anyone had suggested the notion that the discovery rule doesn’t apply at all to wrongful death claims was when the Appellate Court’s opinion was issued. Counsel argued that the Wrongful Death Act contains a limitations provision, but the Limitations Act actually controls. Justice Thomas asked what the Court should do with the language of the Wrongful Death Act, which says that every action must be commenced within two years of death. Counsel responded that there is “rich precedent” saying that the Limitations Act, as both the more specific and later-passed Act, controls over the Wrongful Death Act. Justice Thomas pointed out that legislation was recently considered in the legislature which would have expressly provided a discovery rule for wrongful death cases – why would the legislature have done that if the discovery rule already applied? Counsel pointed out that the proposal did not pass, and unpassed legislation is of de minimis value in deciding the meaning of stattues. Justice Burke asked whether the time which passed between the plaintiff receiving the records and contacting the medical records reviewing firm was significant. Counsel responded that when the person knew enough to trigger the statute of limitations was generally a question of fact. The Chief Justice asked whether the trial court had concluded that the discovery rule didn’t apply. Counsel answered that the trial court had accepted the defendant’s claim that the plaintiff knew enough at the time of death to bring the action. The court focused on the plaintiff’s deposition testimony, in answer to a question about the impact of his mother’s death, that “I wish she had gotten better treatment.” But that’s not a reasonable suspicion of negligence, counsel argued. Justice Thomas asked how long a plaintiff could wait before consulting an expert to investigate, and counsel said there was no bright line. Justice Thomas asked whether a relative could suddenly decide four years after the decedent died that there was something wrong with the decedent’s care, and the relative has tolled the statute for four years? Counsel answered that reasonable basis is a question of fact for the jury. The plaintiff was working on the initial complaint, and he acquired knowledge suggesting further wrongful conduct. Justice Thomas asked about the timeline. Counsel answered that the decedent died in May 2009, plaintiff requested records in February 2010, and he contacted the medical consultants in April 2011. Justice Thomas asked what was the operative date of discovery, and counsel answered that nobody has fixed one. The dissenter at the Appellate Court argued that the statute began running in May 2011. Justice Thomas asked whether counsel was asking the Court for a bright line rule as to how long the plaintiffs have to investigate potential wrongdoing. Counsel answered that the case had ended on a motion to dismiss, and the trial court never fixed a time – it just said this was too long. Justice Theis noted that the courts have looked at the word injury in the Limitations Act and construed it as meaning “event plus wrongful causation.” Was the plaintiff asking the Court to read the Wrongful Death Act’s use of the word “death” in a similar way – and wasn’t that reading into the statute language that wasn’t there? Counsel answered that the word “death” in the Limitations Act should be interpreted exactly the same way “injury” has been. Justice Karmeier asked why the Wrongful Death Act wasn’t the more specific enactment, and counsel answered that the cases have held that the Limitations Act controls.
Counsel for the defendant doctors argued next, saying that the legislature had provided 730 days to investigate a potential wrongful death claim, and that was ample time here. There was no argument that the statutory language was ambiguous. The Supreme Court’s own precedent establishes that “death” in statutory terms is different from “injury.” Counsel argued that the Wrongful Death Act and the Limitations Act can be read harmoniously. Counsel noted Justice Thomas’ comment about the legislature’s consideration of a bill expressly incorporating the discovery rule, and suggested that that proves the legislature knows how to amend the statute when it wants to. Justice Thomas asked whether there was any mechanism that would toll the statute when there was an indication after death suggesting a wrongful act. Counsel pointed out that claims can be brought more than two years out in cases of fraudulent concealment or equitable estoppel. Justice Theis noted that the cases interpreting non-fatal injuries have explained that it can sometimes take some time to realize that a physical harm was negligently caused. So why shouldn’t the word “death” be interpreted the same way? Counsel pointed out that wrongful death actions are in derogation of the common law, so the statute must be strictly construed. But more generally, in ordinary malpractice cases, sometimes negligence has a delayed manifestation. Death is different because the injury is obvious. Justice Theis noted that the theory that “injury” incorporates “wrongful cause” has been the law for thirty years – does the fact that the legislature has never amended the statute to expressly exclude the discovery rule matter? Counsel answered no, since this was the Court’s first time interpreting the statute. Justice Kilbride asked whether there would have been any way to bring the case without the medical report. Counsel said yes, plaintiff could file and seek an extension. That illustrated the problem with the view of the Appellate Court dissenter that the discovery occurs when the medical report is received. Counsel noted that the decedent has been hospitalized with abdominal problems. Her adult children were all involved in addressing the worsening complications after the surgery. All of those facts, taken together, had triggered the statute by pointing to the conclusion that there was knowledge no later than February 2010.
Counsel for the plaintiff concluded by saying that the plaintiff has never advocated a bright line rule, nor that the statute doesn’t begin until there’s knowledge of negligence. The issue is when there was a reasonable suggestion of it. Counsel suggested that if the Court did not read “causation” into the statutory term “death,” the Court was on its way to undoing several earlier cases – that would put in jeopardy all discovery rule cases in Illinois. Chief Justice Garman asked whether there is a danger that the Court would be effectively saying that the statute was two years for all medical malpractice cases except wrongful death. Counsel responded that that was a question for another day. That tension would exist, but the medical malpractice statute of limitations, rather than the wrongful death statute, governs here. Counsel concluded by disputing the defendant’s view that death alone is sufficient to put a plaintiff on inquiry notice, arguing that the courts have applied the discovery rule.
We expect Moon to be decided in three to four months.