Appellate court applies limitations statute to uphold dismissal of wrongful death action against physicians

In Moon v. Rhode, over three years after his mother’s death, plaintiff brought a wrongful death and survival action for medical malpractice against a radiologist and her practice group. The trial court granted a Section 2-619(a)(5)1 motion and dismissed the action as untimely. Reviewing the dismissal de novo, the Third District of the Appellate Court affirmed.2

Plaintiff argued that the action should not be dismissed because the discovery rule in 735 ILCS 5/13-212(a) states a suit against a physician “arising out of patient care” may be brought no more than “2 years after the date on which the claimant knew or, through the use of reasonable diligence should have known … of the injury or death for which damages are sought in the action …” Plaintiff argued that he did not know of the negligence that led to the suit until he received expert reports implicating the defendants as culpable in his mother’s death.

The court rejected this argument, saying “the required knowledge is of the death or injury, not of the negligent conduct.”3 According to the court, the statute’s language “required the plaintiff to file a wrongful death claim within two years of the date on which plaintiff knew of the death.” Plaintiff had two years from when he knew of his mother’s death to file suit but his action was not filed within that period.

The court acknowledged that “some appellate courts have applied the discovery rule to wrongful death actions where circumstances surrounding the death permitted such an extension…”4 The court cited Praznik v. Sport Aero, Inc.,5 involving an airplane crash where the wreckage was not found for over two and a half years after the accident.6 The court stated the statute, § 13-212, “codifies the extension set forth in Praznik, at least in suits against healthcare providers.”

The court found that the statute “provides that the clock starts ticking upon knowledge or notice of the injury or death, not upon notice of a potential defendant’s negligent conduct.”7

The court noted that the Wrongful Death Act8 is a statute in derogation of the common law that should be strictly construed.9 The opinion, citing Wyness v. Armstrong World Industries, Inc.,10 noted that the Supreme Court has had 160 years since the passage of the Act to apply the discovery rule to it but has never done so.11

The court noted that the Survival Act12 does not create a new cause of action but simply allows a personal representative to bring a claim that the decedent had at the time of her death. This Act, also in derogation of the common law, should be strictly construed. The Supreme Court has never applied the discovery rule to extend the statute of limitations of a survival action, according to the court.13

Even if the discovery rule were applied, the court would find the action untimely. Plaintiff obtained the pertinent medical records eight months after his mother’s death but waited another 14 months to submit them for review. He also did not send X-rays for review until almost four years after death. These facts showed plaintiff “filed his complaint long after he became possessed with sufficient information, which put him on inquiry to determine whether actionable conduct was involved.”14

Justice Lytton dissented. While admitting the Supreme Court had never ruled directly on the issue, he cited appellate and federal cases that had applied the discovery rule to medical malpractice wrongful death cases.15

He also argued that the Supreme Court had applied the discovery rule to a survival action in Advincula v. United Blood Services.16 He further contended that the majority opinion did not correctly construe the statutory language of 735 ILCS 5/13-212(a), which he said “must be applied to wrongful death and survival actions, where the damages caused by the medical professional resulted in the death of the decedent.”17

Finally, Justice Lytton said that plaintiff did not have the requisite knowledge to file suit until he “became aware that any defendant committed medical negligence.” When plaintiff had sufficient knowledge to start the limitations period is a disputed question of fact to be decided at trial.18 He would therefore have reversed the dismissal of plaintiff’s complaint.


1. 735 ILCS 5/2-619(a)(5) allows a defendant to move to dismiss a complaint on the grounds that “the action was not commenced within the time limited by law.”

2. 2015 IL App (3d) 130613 (Apr. 10, 2015).

3. Id., ¶ 18.

4. Id., ¶ 21.

5. 42 Ill.App.3d 330 (1976).

6. Moon v. Rhode, supra, ¶ 21.

7. Id. at ¶ 22.

8. 740 ILCS 180/0.01 et seq.

9. Moon v. Rhode, supra, ¶ 23.

10. 131 Ill. 2d 403, 409 (1989).

11. Moon v. Rhode, supra, ¶ 24.

12. 755 ILCS 5/27-6.

13. Moon v. Rhode, supra, ¶ 26.

14. Id., ¶ 27.

15. Id., ¶ 38.

16. 176 Ill. 2d 1 (1996), cited at Moon v. Rhode, supra, ¶ 42 (Justice Lytton dissenting).

17. Moon v. Rhode, supra, ¶ 49 (Justice Lytton dissenting).

18. Id., ¶ 57.

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April 2015Volume 60Number 10PDF icon PDF version (for best printing)