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  4.  » DISCOVERY RULE PROVIDES NEW AVENUE FOR JUSTICE FOR VICTIMS IN WRONGFUL DEATH ACT AND SURVIVAL ACT CASES

DISCOVERY RULE PROVIDES NEW AVENUE FOR JUSTICE FOR VICTIMS IN WRONGFUL DEATH ACT AND SURVIVAL ACT CASES

The Illinois Supreme Court has now provided a new avenue for victims in wrongful death act and survival act cases: the discovery rule. Pursuant to 735 ILCS 5/13-212(a), the discovery rule establishes that, within a four-year statute of repose, any claim of malpractice against a physician or hospital must be filed within two years of the date on which the claimant knew or through the use of reasonable diligence should have known of the existence of the injury or death for which damages have been sought. In Moon v. Rhode, the Illinois Supreme Court found that it was an issue of fact in wrongful death and survival actions predicated upon medical malpractice as to when the individual knew of the injury and its negligent cause. The discovery rule can now extend the wrongful death act and survival act statute of limitations beyond the two-year anniversary of death. 

In Moon, Plaintiff’s mother was admitted to Proctor Hospital in Peoria for a rectal prolapse on May 18, 2009. On May 20, 2009, Dr. Jeffrey Williamson performed a perineal proctectomy on Plaintiff’s mother and observed her after the operation along with his associate, Dr. Jayaraj Salimath. Plaintiff’s mother suffered from numerous complications in the hospital 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 Plaintiff’s mother’s chest and abdomen. On May 24, 2009, the CT scans were reviewed by Dr. Rhode, a radiologist. On May 29, 2009, Plaintiff’s mother died in the hospital.

On March 10, 2010, Plaintiff received his mother’s medical records from Proctor Hospital, including the CT scans. On April 11, 2011, Plaintiff submitted his mother’s medical records to a medical consulting firm for review.  On April 21, 2011, Plaintiff received a verbal report from the medical consulting firm that there had been negligent conduct by Dr. Williamson and Dr. Salimath.  On May 10, 2011, Plaintiff filed a complaint against Dr. Williamson and Dr. Salimath that alleged they failed to diagnose and/or timely treat his mother’s pneumonia and respiratory distress. 

On February 28, 2013, Plaintiff submitted his mother’s CT scans from May 2009 to a physician for review. On March 4, 2013, the physician provided a report to Plaintiff that stated that he had reviewed the CT scans and Dr. Rhode failed to identify a “large loculated extraluminal collection of fluid” which a “reasonably, well-qualified radiologist and physician would have identified.” He further asserted that Dr. Rhode’s failure to identify the collection of fluid contributed to the injury and death of Plaintiff’s mother.

On March 18, 2013, Plaintiff filed a complaint pursuant to the Wrongful Death Act and the Survival Act, claiming medical malpractice against Dr. Rhode and her employer, Central Illinois Radiological Associates, Ltd. Plaintiff alleged that he did not discover Dr. Rhode’s failure until February 28, 2013, when the physician reviewed the CT scans taken on May 23, 2009 and May 24, 2009. The trial court granted the Defendants’ motion to dismiss Plaintiff’s complaint with prejudice and held that Plaintiff’s mother’s death was the date from which the two-year statute of limitations should be measured. The appellate court affirmed the trial court’s decision and found that the discovery rule contained in section 13-212(a) had no application to a wrongful death or a survival action because both causes of action were legislatively created and not found at common law.

The Illinois Supreme Court disagreed and concluded that the statute of limitations in wrongful death and survival actions alleging medical malpractice begins to run when a plaintiff knows or reasonably should know of the death or injury and also knows or reasonably should know that it was wrongfully caused. It noted that 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 lawsuit against Dr. Rhode and Central Illinois Radiological Associates on March 18, 2013 which was less than two years later. The Illinois Supreme Court remanded the case for a factual determination as to when the statute of limitations began to run in the case.

The Illinois Supreme Court’s ruling is a huge victory for victims in wrongful death and survival act cases. The discovery rule now provides an additional path for justice for those who are suffering from the loss of a loved one due to medical malpractice. At the Law Offices of Mathys & Schneid, we use every method possible in order to obtain justice for those who have lost a loved one due to medical malpractice. 

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