Moon v. Rhode
34 N.E.3d 1052
Ill. App. Ct.2015Background
- Kathryn Moon (age 90) was hospitalized in May 2009, underwent surgery and CT scans, and died May 29, 2009; Dr. Clarissa Rhode read the May 23–24 CT scans.
- Randall Moon was appointed executor in June 2009, obtained medical records in March 2010, and sought expert review in April–May 2011.
- In May 2011 Moon received an expert report (Dr. Boyd) finding negligence by two treating surgeons and sued them on May 10, 2011.
- In Feb 2013 Moon obtained a radiologist’s report (Dr. Dachman) alleging Dr. Rhode misread the CT and contributed to the death; Moon sued Rhode and her employer March 18, 2013.
- Defendants moved to dismiss under section 2-619(a)(5), arguing the wrongful-death and survival claims were time-barred by the two-year statutes of limitation; the trial court granted the motion.
- On appeal the Third District affirmed, holding the statutory limitations periods begin with knowledge of the death or injury (not knowledge of a particular defendant’s negligence), and Moon’s claims were untimely.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the discovery rule applies to toll the limitations period for wrongful-death and survival actions premised on medical malpractice | Moon: discovery rule delays accrual until plaintiff knew or reasonably should have known of negligent conduct; thus his suit against Rhode was timely after 2013 expert report | Defendants: statutory deadlines control; limitation begins with date of death (or with knowledge of death/injury), not when plaintiff learns of a particular physician’s negligence | Court: discovery rule does not displace the plain statutory text for wrongful-death; section 13-212(a) starts the clock upon knowledge of the injury or death (not knowledge of defendant’s negligence); Moon’s suit was untimely |
| Whether section 13-212(a) (medical-malpractice limitations) applies to extend wrongful-death claims | Moon: section 13-212(a) and precedent allow accrual to be measured by knowledge of negligent causation | Defendants: section 13-212(a) limits malpractice suits but does not rewrite the Wrongful Death Act’s two-year rule to run from discovery of negligence | Court: section 13-212(a) applies to suits against physicians but its plain language measures accrual by knowledge of the injury or death, so it does not require discovery of the tortfeasor before the limitations period runs |
| Whether the Survival Act claim is governed by the discovery rule | Moon: survival actions are derivative of personal-injury claims and discovery rule applies | Defendants: survival claims accrue at decedent’s death; limitations run from death | Court: Survival Act is statutory and construed strictly; limitations at the latest begin at death; Moon’s survival action was untimely |
| Whether factual questions precluded dismissal (i.e., when plaintiff reasonably should have known of wrongful cause) | Moon: triable fact whether plaintiff only became on inquiry after 2011 Boyd report, so Rhode-related claim should be timely under discovery-rule cases | Defendants: regardless of inquiry, time ran before Moon sued Rhode | Court: because court held statute measures from knowledge of death/injury, no factual dispute saved Moon’s late claims; dismissal affirmed (majority). Dissent would have left factual timing to the trier of fact and reversed. |
Key Cases Cited
- Wyness v. Armstrong World Indus., 131 Ill. 2d 403 (1989) (discussed application of discovery rule to wrongful-death claims; court emphasized strict construction of statutes in derogation of common law)
- Witherell v. Weimer, 85 Ill. 2d 146 (1981) (interpreted section 13-212(a) in light of discovery rule for medical malpractice actions)
- Young v. McKiegue, 303 Ill. App. 3d 380 (1999) (appellate decision applying medical-malpractice discovery rule to wrongful-death action; rejected by majority here)
- Advincula v. United Blood Servs., 176 Ill. 2d 1 (1996) (Illinois Supreme Court decision recognizing discovery-rule principles in survival claims)