Medical Malpractice Update Edna L. McLain and Zeke N. Katz HeplerBroom LLC, Chicago Clash of the Titans: The Interaction of the Wrongful Death Act, Statute of Repose, Statute of Limitations and the Discovery Rule As the saying goes, timing is everything. In the law, your case lives or dies by the applicable statute of limitations. Throw into the mix the statute of repose, the relation-back doctrine, statutory causes of action and the discovery rule, and figuring out whether claims against your clients are time-barred becomes complicated. However, a ruling in your client s favor can stop a case in its tracks. Alternatively, a finding that allows a claim to stand, even after the statute of limitations has ended, may permit the litigation to continue or begin long after the conduct at issue in the complaint has occurred. Two recent opinions in the First and Third Districts of the Illinois Appellate Court emphasize the impact of the statute of limitations with respect to wrongful death claims in medical malpractice cases. In Lawler v. University of Chicago Medical Center, the First District found that a wrongful death claim filed more than two years after the filing of the original medical negligence lawsuit survived and related back to the original lawsuit. Lawler v. Univ. of Chi. Med. Ctr., 2016 IL App (1st) 143189, 23. In Moon v. Rhode, the Third District ruled a wrongful death claim filed three years after the decedent s death was time barred because the discovery rule did not apply in wrongful death cases, and the statute of limitations began to run when the plaintiff learned of the decedent s death, not of the negligent act. Moon v. Rhode, 2015 IL App (3d) 130613, 20, as modified on denial of reh g (June 15, 2015), appeal allowed, 39 N.E.3d 1004 (Ill. 2015). This Medical Malpractice Update will review the rulings in Lawler and Moon, respectively, in conjunction with the applicable Illinois statutes discussed, and offer practice pointers for defense counsel with clients facing potential wrongful death claims in medical malpractice cases. The Lawler Decision: Statute of Repose, Relation Back and the Wrongful Death Act, Oh My! On August 4, 2011, plaintiff Jill Prusak filed a medical malpractice case, alleging that defendant Dr. Rama Jager misdiagnosed plaintiff s macular pathology and failed to recognize lymphoma in her central nervous system. Lawler, 2016 IL App (1st) 143189, 3. Plaintiff claimed she did not learn about the alleged misdiagnosis until at least August 7, 2009, following a brain biopsy. Id. During the litigation, plaintiff died on November 24, 2013, more than two years after the original filing of her medical malpractice case. Id. 5. On April 11, 2014, Sheri Lawler, plaintiff s daughter and the executor of her estate, filed an amended complaint, adding two counts under the Illinois Wrongful Death Act. Id. 5-6. Subsequently, the defendants moved to dismiss the wrongful death claims as being time barred. Id. 7. Judge Daniel Gillespie of the Circuit Court of Cook County granted defendants motions to dismiss on September 17, 2014, and plaintiff appealed. Id. 8-9. Plaintiff argued that the wrongful death claims related back to the timely filed original complaint as the defendants had the necessary information from the original missed diagnosis claim to prepare their defenses as to the amended claims. Id. 11. The alleged negligent actions in both the original and amended claims were the same and presented no IDC Quarterly Volume 26, Number 3 (26.3.61) Page 1
hardship to the defendants. Id. Conversely, the defendants argued that the wrongful death counts were separate and distinct causes of action that did not relate back to the original complaint and that the relation back doctrine did not provide an exception to the medical malpractice statute of repose, which is a specific, substantive statute that should take precedence over the relation back statute. Id. 12. The First District recognized this case presented a classic clash of apparently conflicting statutes and undertook to review each one and the interplay between the statutes in this context. Id. 17. First, the court emphasized the Wrongful Death Act is the exclusive remedy available in Illinois when death occurs as a result of tortious conduct as there is no cause of action for wrongful death in the common law. Id. 19. The cause of action for the benefit of the next of kin is derivative of the injury to the decedent and is grounded on the same wrongful act of defendant whether it was prosecuted by the injured party during his lifetime or by a representative of the estate. The remedy depends upon the existence, in the decedent, at the time of his death, of a right of action to recovery for such injury. Id. 22 (citing Kessinger v. Grefco, Inc., 251 Ill. App. 3d 980, 987-88 (1993)). Therefore, [a] wrongful death action will lie where the deceased had a claim that was not time-barred on or before his death. Lawler, 2016 IL App (1st) 143189, 23. The Wrongful Death Act requires a plaintiff to sue within two years from the time of death, and because it is a derivative action, the time period may be impacted by other limitations provisions such as those for medical malpractice claims. The limitations and repose periods for medical malpractice cases are set out in 735 ILCS 5/13-212(a), which specifically states: Except as provided in Section 13-215 of this Act, no action for damages for injury or death against any physician, dentist, registered nurse or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, 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, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first, but in no event shall such action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death. Within this framework, plaintiff s original cause of action, filed on August 4, 2011, was timely filed within the two year statute of limitations and the four year statute of repose for medical malpractice claims. Lawler, 2016 IL App (1st) 143189, 3. However, the amended complaint was filed more than two years after the decedent knew of her injury, and more than four years after the defendant physician s alleged misdiagnosis. Id. 5. However, the First District pointed out that plaintiff claimed her wrongful death claims related back to the original timely filed complaint, and as such, the court needed to analyze the effect of applying the relation back doctrine in this scenario. Id. 8. The relation back doctrine, set out in 735 ILCS 5/2-616(b), allows a claim to be filed after the statute of limitations has run if that claim relates back to the original cause of action. The relation back statute states in part that a cause of action... set up in any amended pleading shall not be barred by lapse of time under any statute... limiting the time within which an action may be brought. Lawler, 2016 IL App (1st) 143189, 31 (citing 735 ILCS 5/2-616(b)) (emphasis in original). The doctrine s exemption from the normal boundaries established by the statute of limitations for medical malpractice claims also requires that the original cause of action was filed within the time prescribed by the statute of limitations, and that the cause of action in the amended pleading grew out of the same transaction or IDC Quarterly Volume 26, Number 3 (26.3.61) Page 2
occurrence set up in the original pleading. Lawler, 2016 IL App (1st) 143189, 31. The court recognized that the decedent timely filed her medical malpractice case within the statute of limitations and repose periods set out in 735 ILCS 5/13-212(a). Id. 44. If she had not timely filed the cause of action before her death, then the court agreed the statute of repose would have prevented plaintiff s wrongful death claims. Id. Further, plaintiff s wrongful death claims were filed within two years of the decedent s death, so it was timely under the Illinois Wrongful Death Act, 740 ILCS 180/2(c). Id. 23. The First District found that while the medical malpractice and wrongful death statutes impose time limitations with respect to the filing of those claims, the relation back doctrine may supersede those statutes and recast the time in which the action may be brought. Id. Further, not only may a pleading be amended beyond the statute of limitations, but also that amended pleading may include an entirely new cause of action as long as the original complaint was timely filed and the new cause of action arose from the same transaction or occurrence as in the original complaint. Id. 32 (citing Zeh v. Wheeler, 111 Ill. 2d 266, 269-70 (1986)). The court reasoned that permitting a new and distinct cause of action for wrongful death in the amended complaint would not prejudice the defendants if the defendants had already received the facts that formed the basis for the new and distinct cause of action. Lawler, 2016 IL App (1st) 143189, 52. The wrongful death claims originated in the alleged misdiagnosis of the decedent s macular pathology, on which the original complaint was based. Id. The court relied on the identity of the occurrence rather than the identity of the cause of action in reasoning that defendants would not be unfairly burdened by permitting additional causes of action to be filed as long as those new claims related back to the original complaint, even if those separate claims are filed after the statute of limitations had expired. Id. 34. Because of the consistent operative facts between the original and amended complaints, the First District found that the defendants in Lawler had been apprised of the essential information necessary to prepare a defense, and were not unfairly prejudiced by the additional cause of action. Id. 49. Therefore, the take-away from Lawler is that an additional cause of action under the Wrongful Death Act may be added in an amended complaint if the original plaintiff had the right to bring that same wrongful death cause of action, and was not time barred by the statute of limitations or period of repose at the time of her death. The Discovery Rule and the Statute of Limitations in Moon In Moon v. Rhode, unlike in Lawler, the decedent never filed a lawsuit alleging medical malpractice prior to her death. The case centered on allegations that a radiologist had negligently interpreted CT scans taken on May 23-24, 2009, which contributed to the injury and death of the decedent, Kathryn Moon, on May 29, 2009. Moon v. Rhode, 2015 IL App (3d) 130613, 4-5. Her son, Randall Moon, first filed a complaint for wrongful death and survival on March 18, 2013, almost four years after she died. Moon, 2015 IL App (3d) 130613, 8. The defendants filed a motion to dismiss the complaint as time barred since the complaint was filed more than two years after decedent s death. Id. 9. Defendants motion to dismiss was granted by Peoria County Circuit Judge Richard D. McCoy, finding that the date of Kathryn s death was the date from which the two-year statute should be measured. Id. On appeal to the Third District, the plaintiff argued that the discovery rule allowed him to file his complaint within two years from the time he knew or should have known of the defendants negligent conduct. Id. 12. However, the court addressed whether the discovery rule applied to wrongful death cases and found that it did not. Id. 16-19. Under the common law, a personal injury action does not accrue until a plaintiff knew, or should have known, of an injury and that it was wrongfully caused. Id. 19. However, the Third District explained that wrongful death actions are IDC Quarterly Volume 26, Number 3 (26.3.61) Page 3
a creation of the legislature, not the common law. Id. 17. Neither the Wrongful Death Act nor 735 ILCS 5/13-212(a) governing medical malpractice cases incorporate a knowledge requirement that the limitations period begins to run when the plaintiff knows, or should have known, of the defendant s wrongful conduct which contributed to death. Id. 25. Therefore, the court would not read into the statutes language that was not there. Id. When drafting the limitations and repose periods for medical malpractice actions, the legislature provided in 735 ILCS 5/13-212(a) that a claimant must file a wrongful death action within two years from the date on which the claimant knew, or through the use of reasonable diligence should have known, or received noticed in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first. Id. 18 (citing 735 ILCS 5/13-212(a)) (emphasis added). The court explained the required knowledge is of the death or injury, not of the negligent conduct. Moon, 2015 IL App (3d) 130613, 18. Further, the plain language of the Wrongful Death Act requires a plaintiff to file a wrongful death action within two years from the date of death. See 740 ILCS 180/2. If the legislature had wanted to provide a limitations period commencing when one had knowledge of the negligent conduct, it would have done so. Moon, 2015 IL App (3d) 130613, 18. Therefore, the Third District found that cases applying the discovery rule in wrongful death act cases were wrongly decided and declined to follow such precedents. Id. 19. Because it was undisputed that the plaintiff in Moon did not commence his wrongful death suit within two years from the decedent s death, the trial court did not err in granting the defendants motions to dismiss. Id. 20. Further, even when applying the discovery rule, the Third District found the complaint was untimely. The court noted numerous delays in plaintiff s efforts prior to filing his cause of action. He waited eight months after Kathryn Moon s death before obtaining her medical records. Id. 6. He then waited 14 months after receiving those records before submitting them to a medical consultant who opined that certain other doctors were negligent. Id. It was almost four years after decedent s death before plaintiff sent her CT scan to be reviewed by Dr. Abraham Dachman. Id. 8. Dr. Dachman reviewed that CT scan on February 28, 2013, and informed the plaintiff that Dr. Rhode had committed medical malpractice. Id. The court reasoned these delays were not excusable when plaintiff had sufficient information to determine if actionable conduct was involved before the statute of limitations expired. Id. 27. The court in Moon knew their decision was not the last time that the balance between the statute of limitations and the discovery rule for wrongful death claims made against physicians, hospitals and other health care providers would be evaluated in Illinois, noting that they were well aware that this decision creates a split in the districts and, therefore, [they] anticipate at some point hearing from the supreme court on the issue. Id. 30. Indeed, the Illinois Supreme Court confirmed this premonition when it granted the plaintiff s appeal in October of 2015, and scheduled oral arguments for May of 2016. Practice Pointers In light of these recent opinions, here are a few practice pointers and considerations to keep in mind with respect to the defense of wrongful death claims: Examine your cases at the outset to determine if plaintiff timely filed within the statute of limitations and repose periods; IDC Quarterly Volume 26, Number 3 (26.3.61) Page 4
Affirmation of the Third District s opinion in Moon v. Rhode would eliminate a plaintiff s ability to use ignorance of the defendant s negligent conduct to extend the limitations period and would impose a bright line rule that the statute of limitations in wrongful death cases begins to run on the date of death, whereas reversal would mean business as usual; A bright line statute of limitations, such as the one emphasized in Moon, still provides plaintiffs with ample time to review any potential causes of action, while also protecting health care providers from exposure to liability for an indeterminate amount of time; In cases similar to Lawler where wrongful death claims are added, determine whether the original complaint was timely filed and whether the claims relate back; Permitting additional claims to be filed against defendant health care providers long after the statute of limitations has expired may unfairly prejudice those defendants by forcing defense counsel to either prepare a defense strategy with respect to unknown additional claims, or alter an existing defense strategy in response to new claims brought well into the litigation. Conclusion As defense counsel in medical malpractice cases, we need to take advantage of favorable case law when we can and impart the lessons learned along the way. While the outcome in Lawler was not favorable to the defendant medical providers, the decision provided a good review of the various statutes defense counsel encounter in medical negligence cases and illustrated the way in which they operate together in a given case. In Moon, the Third District provided a good argument for why plaintiffs should not be permitted to use the discovery rule to extend the statute of limitations in wrongful death cases. Hopefully, the Illinois Supreme Court will agree that the time has come to read the Wrongful Death Act and limitations provisions narrowly and afford medical providers some relief. As the saying goes, timing is everything. About the Authors Edna L. McLain is an associate attorney of HeplerBroom, LLC. Ms. McLain graduated from the University of Illinois, Champaign-Urbana, in 1991, with a Bachelor of Arts degree in English, and she received her Juris Doctorate from the Saint Louis University School of Law in 2002. She is admitted to the bars of Illinois, Missouri and Wisconsin and the U.S. District Court of the Northern District of Illinois. Ms. McLain focuses her practice in the areas of medical malpractice, insurance defense and toxic torts. She is a member of the Illinois Association of Defense Trial Counsel. Zeke N. Katz is an associate attorney at HeplerBroom LLC. Mr. Katz graduated from Colgate University in 2006 with a Bachelor of Arts degree in Philosophy & Religion. He received his J.D. from Chicago-Kent College of Law in 2014. He is admitted to practice in Illinois. He focuses his practice in the areas of medical malpractice and insurance defense. He is a member of the American Bar Association, Illinois State Bar Association and Chicago Bar Association. IDC Quarterly Volume 26, Number 3 (26.3.61) Page 5
About the IDC The Illinois Association Defense Trial Counsel (IDC) is the premier association of attorneys in Illinois who devote a substantial portion their practice to the representation of business, corporate, insurance, professional and other individual defendants in civil litigation. For more information on the IDC, visit us on the web at www.iadtc.org or contact us at PO Box 588, Rochester, IL 62563-0588, 217-498-2649, 800-232-0169, idc@iadtc.org. IDC Quarterly Volume 26, Number 3 (26.3.61) Page 6