RANDALL W. MOON, Appellant, v. CLARISSA F. RHODE et al., Appellees.
No. 119572
Supreme Court of Illinois
September 22, 2016
November 21, 2016
2016 IL 119572
JUSTICE THEIS delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Karmeier, and Burke concurred in the judgment and opinion.
Appeal from the Appellate Court for the Third District; heard in that court on appeal from the Circuit Court of Peoria County, the Hon. Richard D. McCoy, Judge, presiding. Judgments reversed. Cause remanded.
Craig L. Unrath, Nicholas J. Bertschy, and J. Matthew Thompson, of Heyl, Royster, Voelker & Allen, of Peoria, and Karen Kies DeGrand and Richard B. Foster, of Donohue Brown Mathewson & Smyth LLC, of Chicago, for appellees.
Richard R. King, Robert John Kane, and Sherri DeVito, of Chicago, for amicus curiae Illinois State Medical Society and American Medical Association.
OPINION
¶ 1 This appeal arises from an order of the circuit court of Peoria County granting the motion of defendants, Dr. Clarissa Rhode and Central Illinois Radiological Associates, Ltd., to dismiss as time-barred plaintiff Randall Moon‘s complaint brought under the
BACKGROUND
¶ 3 On May 18, 2009, plaintiff‘s 90-year-old mother, Kathryn Moon, was admitted to Proctor Hospital in Peoria for a rectal prolapse. On May 20, 2009, Dr. Jeffrey Williamson performed a perineal proctectomy on Kathryn and, along with his associate, Dr. Jayaraj Salimath, followed her postoperatively. During Kathryn‘s hospitalization, she experienced numerous complications, including labored breathing, pain, fluid overload, pulmonary infiltrates, pneumoperitoneum, sepsis, and an elevated white blood cell count. On May 23, 2009, Dr. Salimath ordered computed tomography (CT) scans of Kathryn‘s chest and abdominal area. Dr. Rhode, a radiologist, read the CT scans on May 24, 2009. Plaintiff returned from out of state to his mother‘s bedside on the evening of May 27, 2009. Her oxygen levels had significantly dropped, and she was not awake or responsive. On May 29, 2009, Kathryn died in the hospital.
¶ 4 On June 9, 2009, plaintiff, an attorney and one of Kathryn‘s four children, was appointed as executor of his mother‘s estate. On February 26, 2010, plaintiff executed an authorization
¶ 5 On April 11, 2011, plaintiff contacted a medical consulting firm to review Kathryn‘s medical records. On April 21, 2011, plaintiff received Dr. Roderick Boyd‘s oral opinion that Drs. Williamson and Salimath were negligent in treating Kathryn after her admission to the hospital. On May 2, 2011, plaintiff received a written report from Dr. Boyd setting forth his specific findings of purported negligence against Drs. Williamson and Salimath. In the report, he was critical of the two doctors for waiting “almost a week to attempt to treat the infection and supply sufficient oxygen” to Kathryn.
¶ 6 On May 10, 2011, plaintiff filed a complaint against Drs. Williamson and Salimath alleging, inter alia, that they failed to diagnose and/or timely treat Kathryn‘s pneumonia and respiratory distress.1 On May 8, 2012, plaintiff‘s discovery deposition was taken in that lawsuit. When asked in the deposition how his mother‘s death had affected him, he responded, “[e]ven though she was fairly old, my impression was that she was doing okay and that, you know, she should have gotten better treatment than she did.”
¶ 7 Almost two years later, on February 28, 2013, Kathryn‘s CT scans from May 2009 were reviewed by Dr. Abraham Dachman upon plaintiff‘s request. On March 4, 2013, Dr. Dachman provided plaintiff with a report stating that he had reviewed the CT scans and Dr. Rhode failed to identify “large loculated extraluminal collection of fluid,” which a “reasonably, well-qualified radiologist and physician would have identified.” Dr. Dachman further opined that Dr. Rhode‘s failure to properly identify those findings caused or contributed to the injury and death of Kathryn.
¶ 8 On March 18, 2013, plaintiff filed the instant cause of action, pursuant to the
¶ 9 Defendants filed a motion to dismiss plaintiff‘s complaint under
¶ 10 The trial court granted defendants’ motion and dismissed the complaint with prejudice. The trial court held that the complaint was untimely because the date of Kathryn‘s death was the “date from which the two-year statute [of limitations] should be measured.” The trial court further stated that “even if we give everybody the benefit of the doubt and try to fix a
¶ 11 A divided appellate court affirmed. 2015 IL App (3d) 130613, ¶ 32. The appellate majority held that plaintiff was required to file his complaint within two years of the date on which he knew or reasonably should have known of Kathryn‘s death. Id. ¶ 20. Acknowledging its disagreement with other districts of the appellate court, the appellate majority found that the discovery rule contained in
¶ 12 The dissenting justice wrote to highlight that the majority‘s conclusion that the discovery rule contained in
¶ 13 Plaintiff filed a petition for leave to appeal (
ANALYSIS
¶ 15 Defendants’ motion to dismiss plaintiff‘s complaint was brought pursuant to
I
¶ 18 A wrongful death cause of action is brought by the personal representative of the decedent to provide the surviving spouse and next of kin compensation for the pecuniary losses suffered by reason of the decedent‘s death. Turcios v. The DeBruler Co., 2015 IL 117962, ¶ 17. In contrast, the Survival Act does not create a statutory cause of action. Id. It merely allows a representative of the decedent to maintain those statutory or common-law actions that had already accrued to the decedent before he or she died. Id.
¶ 19 This court first applied the discovery rule in Rozny v. Marnul, 43 Ill. 2d 54 (1969). We discussed the purpose of the rule and stated:
“The basic problem is one of balancing the increase in difficulty of proof which accompanies the passage of time against the hardship to the plaintiff who neither knows nor should have known of the existence of his right to sue. There are some actions in which the passage of time, from the instant when the facts giving rise to liability occurred, so greatly increases the problems of proof that it has been deemed necessary to bar plaintiffs who had not become aware of their rights of action within the statutory period as measured from the time such facts occurred. [Citations.] But where the passage of time does little to increase the problems of proof, the ends of justice are served by permitting plaintiff to sue within the statutory period computed from the time at which he knew or should have known of the existence of the right to sue. [Citations.]” Id. at 70.
¶ 20 More recently, this court reiterated that the purpose of the discovery rule is to “ameliorate the potentially harsh effect of a mechanical application of the statute of limitations that would result in it expiring before a plaintiff even knows of his cause of action.” Henderson Square Condominium Ass‘n, 2015 IL 118139, ¶ 52.
¶ 21 Plaintiff urges us to apply the discovery rule found in
¶ 22 The parties agree that the issue before us is one of statutory construction. The fundamental rule of statutory construction is to ascertain and give effect to the legislature‘s intent. Hayashi v. Illinois Department of Financial & Professional Regulation, 2014 IL 116023, ¶ 16. The most reliable indicator of the legislature‘s intent is the statutory language, which must be given its plain and ordinary meaning. Id. Where statutory provisions are clear and unambiguous, the plain language as written must be given effect without reading into it exceptions, limitations, or conditions that the legislature did not express. Id. Because this issue presents a question of law, our review also proceeds de novo. Schultz v. Performance Lighting, Inc., 2013 IL 115738, ¶ 12.
¶ 23
“Physician or hospital. (a) 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.”735 ILCS 5/13-212(a) (West 2012) .
¶ 24 Pursuant to the plain language of
¶ 25 Defendants assert that this statutory language omits any hint of the discovery of wrongful conduct in a wrongful death action.
¶ 26 This court has already interpreted the meaning of the word “injury” within the context of this provision of the Code. See Witherell v. Weimer, 85 Ill. 2d 146, 153-54 (1981). In Witherell, we recognized that where substantial intervals exist between the time at which a plaintiff should have known of the physical injury and the time at which he should have known that it was negligently caused, the definition of “injury” as including or excluding its wrongful causation becomes significant. Id. at 155. We further recognized that it had been suggested that we had left unresolved the question of whether the statute is triggered by the plaintiff‘s discovery of the injury or not until discovery of the negligence where, as alleged by the plaintiff, knowledge of her injury substantially preceded knowledge of its cause. Id. In answering this question, we concluded: “[t]he statute starts to run when a person knows or reasonably should know of his injury and also knows or reasonably should know that it was wrongfully caused.” (Emphases added.) Id. at 156.
¶ 27 We are now tasked with determining whether under
¶ 28 Consequently, as our appellate court has held, relying upon our rationale in Witherell:
“The effect of applying the discovery rule in wrongful death cases based upon medical malpractice is to toll the limitations period until the plaintiff knows or should have known of the wrongful cause of the death for which relief is being sought. Thus, knowledge of the death does not commence the statute of malpractice limitations. Rather, the malpractice limitations period begins to run when the plaintiff knows or
should have known not only of the death, but also that the death was wrongfully caused.” Young v. McKiegue, 303 Ill. App. 3d 380, 387 (1999).
¶ 29 Although not a basis for the appellate court‘s decision, defendants also rely upon the limitations period contained in
¶ 30 We also presume that the legislature intended
¶ 31 Our determination today is also supported by the weight of appellate authority in Illinois over the past 38 years. A long line of appellate court decisions, beginning with Fure v. Sherman Hospital, 64 Ill. App. 3d 259 (2d Dist. 1978), have applied the discovery rule to wrongful death cases alleging medical malpractice. See, e.g., Young, 303 Ill. App. 3d 380 (1st Dist.); Wells v. Travis, 284 Ill. App. 3d 282 (2d Dist. 1996); Neade v. Engel, 277 Ill. App. 3d 1004 (2d Dist. 1996); Durham v. Michael Reese Hospital Foundation, 254 Ill. App. 3d 492 (1st Dist. 1993); Cramsey v. Knoblock, 191 Ill. App. 3d 756 (4th Dist. 1989); Arndt v. Resurrection Hospital, 163 Ill. App. 3d 209 (1st Dist. 1987); Hale v. Murphy, 157 Ill. App. 3d 531 (5th Dist. 1987); Coleman v. Hinsdale Emergency Medical Corp., 108 Ill. App. 3d 525 (2d Dist. 1982).
¶ 32 In fact, with the sole exception of Greenock v. Rush Presbyterian St. Luke‘s Medical Center, 65 Ill. App. 3d 266 (1st Dist. 1978), which no reported case prior to the appellate majority below has followed for the proposition at issue here, our appellate court has consistently applied the discovery rule to wrongful death cases alleging medical malpractice.
¶ 33 In the period since Fure was decided in 1978, the General Assembly has amended
¶ 34 We next consider whether the discovery rule is also applicable to plaintiff‘s Survival Act claim.
¶ 35
¶ 36 The parties only address the applicability of the discovery rule to plaintiff‘s survival action briefly, both relying upon this court‘s decision in Advincula v. United Blood Services, 176 Ill. 2d 1 (1996). Plaintiff relies on it for the proposition that this court has already applied the discovery rule to survival actions and that he, as decedent‘s representative, timely filed the complaint under
¶ 37 In Advincula, the plaintiff, as the administrator of the estate of her husband, brought a survival action against the defendant alleging that it had negligently failed to screen HIV-contaminated blood, resulting in her husband‘s contraction of AIDS and his eventual death some four years after he had received the transfusion. Id. at 11. The defendant argued that the plaintiff‘s claim was time-barred by the two-year statute of limitations applicable to personal injury actions. Id. at 41. We rejected this argument and held that the statute of limitations period in a Survival Act claim is triggered on the date that the decedent discovers the injury. Id. at 42. Because the plaintiff filed the cause of action less than two years after the decedent learned that he had contracted AIDS, the plaintiff‘s claim was not time-barred. Id. at 43.
¶ 38 In reaching this determination, we reiterated that the Survival Act does not create a statutory cause of action. Id. at 42. “It merely allows a representative of the decedent to maintain those statutory or common law actions which had already accrued to the decedent before he died.” Id. Consequently, for purposes of triggering the statutory limitations period, it is the date the deceased learns of his injury that is controlling. Id.
¶ 40 For these reasons, we conclude that the discovery rule found in
II
¶ 42 Having determined that the discovery rule tolls the statute of limitations in this case, we now turn to whether, as defendants suggest, plaintiff‘s complaint was still untimely as a matter of law because it was filed more than two years after he was on notice of defendants’ alleged medical negligence.
¶ 43 The two-year limitations period in
¶ 44 “The question of when a party knew or reasonably should have known both of an injury and its wrongful cause is one of fact, unless the facts are undisputed and only one conclusion may be drawn from them.” Henderson Square Condominium Ass‘n, 2015 IL 118139, ¶ 52. This court has emphasized, however, that “[i]n many, if not most, cases the time at which an injured party knows or reasonably should have known both of his injury and that it was wrongfully caused will be a disputed question to be resolved by the finder of fact.” Witherell, 85 Ill. 2d at 156.
¶ 45 Plaintiff advances that he did not have a reasonable basis to know that there might have been some wrongful conduct in this case until he received the first medical expert‘s report on May 2, 2011. He asserts that his complaint was therefore timely filed on March 18, 2013, less than two years later.
¶ 47 Likewise, in Nolan v. Johns-Manville Asbestos, 85 Ill. 2d 161 (1981), this court refused to say, as a matter of law, whether the plaintiff had sufficient information of his injury to place him on notice, even though he knew he had lung problems and, later, pulmonary fibrosis years before he was medically diagnosed as having asbestosis and then told by a doctor that it resulted from exposure to asbestos material at work. Id. at 171-72. As in Knox College, this court remanded the case to the trial court for a factual determination concerning the statute of limitations. Id. at 172.
¶ 48 In contrast, in Witherell, we held that the plaintiff knew or reasonably should have known, as a matter of law, of the possibility that her injury had been caused by actionable conduct of the defendant drug manufacturer more than five years prior to her filing the lawsuit. Witherell, 85 Ill. 2d at 157. There, the plaintiff began to experience problems with her leg shortly after taking the birth control pill prescribed by her doctor and manufactured by the defendant Ortho. Id. at 156. Plaintiff was hospitalized for this condition in 1967 and after her release asserted that she experienced excruciating pain in her leg. Id. Plaintiff was told by her mother and others that the pill could cause blood clots, and she voluntarily stopped taking the pill for a month. Id. Plaintiff was again hospitalized in 1972 for problems with her leg. Id. Although the plaintiff maintained that no doctor told her prior to 1976 that she had thrombophlebitis, the plaintiff averred in her affidavit that her doctor told her in 1967 and in 1972 that she had blood clots in her leg. Id.
¶ 49 This court held in Witherell:
“Given the severe difficulties plaintiff asserts she was having with her legs, the advice from her mother and others that the pill [manufactured by the defendant] could cause blood clots, her statement that [her doctor] told her in 1967 and 1972 that she was having blood clots in her legs but that [another doctor] was insisting the problems were muscular, it is *** inconceivable to us that a reasonable person would not have realized, at least by the time of plaintiff‘s second hospitalization in 1972, that she may not have been receiving proper diagnosis and treatment.” Id. at 156-57.
Consequently, we found that the plaintiff‘s failure to raise any claim for the injuries she suffered within the time allowed, after she knew or reasonably should have known that her injury resulted from actionable conduct by the defendant drug manufacturer, barred her action against that defendant from proceeding. Id. at 157.
¶ 50 In contrast to Witherell, under the circumstances in this case, we find that a factual determination must be made as to whether plaintiff had sufficient information two years prior to when he filed his complaint so as to trigger the limitations period. We note the medical consulting firm first verbally reported to plaintiff on April 21, 2011, that there had been negligent conduct, leading him to file the separate lawsuit against the two other doctors on May 10, 2011, and the instant lawsuit on March 18, 2013, less than two years later.
¶ 52 Defendants argue, alternatively, that plaintiff had sufficient information concerning both Kathryn‘s death and a potential wrongful cause no later than February 26, 2010, the date that plaintiff ordered his mother‘s medical records, and that he did not file his complaint until three years later. It is entirely unclear from the record, however, what prompted plaintiff to initially order his mother‘s complete medical records less than a year after she died and then to contact a medical consulting firm. All such factual issues can be explored on remand.
¶ 53 Consequently, as in Knox College and Nolan, we reject defendants’ argument that only one conclusion may be drawn from the record here. Instead, we conclude that a factual determination must be made as to when the statute of limitations began to run in this case. Based upon the record before us, all we know is that plaintiff filed his lawsuit less than two years after receiving the initial verbal medical expert report on April 21, 2011, and within the four-year statute of repose contained in
CONCLUSION
¶ 55 Accordingly, the judgment of the appellate court affirming the circuit court‘s dismissal of plaintiff‘s complaint is reversed. This cause is remanded to the circuit court for further proceedings consistent with this opinion.
¶ 56 Judgments reversed.
¶ 57 Cause remanded.