Cook County Record

Sunday, January 19, 2020

Time to file medical wrongful death suit open to more liberal view of discovery date

By Dawn Geske | Nov 2, 2016

General court 10

SPRINGFIELD – A decision by the Illinois Supreme Court may liberalize the time frame in which to file lawsuits in medical malpractice wrongful death cases.

The case, Moon v. Rhode, explored what the qualifying event in a wrongful death suit really is. While the courts previously considered the date of death and allowed two years from that date in which a lawsuit could be filed, in this case, the alleged wrongful aspects of the death was not apparent until much later.

The plaintiff in this case, who was also an attorney with malpractice experience, claimed he didn’t know his mother’s death was allegedly wrongfully caused until he was given a report from a medical consulting firm that provided the details of the incident. He didn’t receive the report until almost two years after her death, which wouldn’t have allowed him to file in time under Illinois law.  

To allow more time for the filing, the plaintiff cited the discovery rule and argued that he should have two years from the date that he actually found out about the wrongful death circumstances.  The plaintiff received the report from the medical consulting firm detailing his mother’s death on May 2, 2011, which the plaintiff claimed should have made his March 2013 filing sufficiently within the two-year time frame.  

The court agreed that it may be determined that the point in time when the plaintiff actually discovered that the death of his mother was wrongful is when he had sufficient information about her death, and that the date from which the clock on the statute of limitations should begin should, in fact, be decided by a trial court.

The court remanded the lawsuit, allowing the action which the plaintiff lodged against a radiologist on March 18, 2013, to return to a trial court for further proceedings. 

“The Illinois Supreme Court clarified that the discovery rule definitively applies to medical malpractice wrongful death and Survival Act cases,” Jennifer L. Johnson, a partner at Hinshaw & Culbertson LLP, told the Cook County Record. “Previously, Illinois courts of appeal had ruled on both sides of the issue. The discovery rule prevents the triggering of a plaintiff's statute of limitations period until she 'knows or reasonably should know' of the injury and that it was wrongful. In the absence of the discovery rule, the triggering event for tolling of the limitation period is the death of the patient.”

This new liberal view of time limitations in wrongful death suits may create more challenges for health-care providers, as they will be subject to defending a claim that a case is untimely in addition to claiming lack of responsibility for any alleged wrongdoing.

“The Supreme Court decision actually clarified the rule with regard to the application of the discovery rule to these cases,” said Johnson. “The murkiness comes more from the effects. Since plaintiffs can potentially reach a jury by arguing a case for the application of the discovery rule, health-care providers may need to defend otherwise time-barred medical malpractice wrongful death suits through the entire course of discovery, and then make what could be an unpopular and unappealing technical argument to a jury of lay persons that the suit was filed too late.”

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Organizations in this Story

Hinshaw & Culbertson LLPIllinois Supreme Court