APPEAL from the Circuit Court of Cook County; the Hon. JAMES
C. MURRAY, Judge, presiding.
MR. JUSTICE SIMON DELIVERED THE OPINION OF THE COURT:
Rehearing denied November 6, 1978.
This is a medical malpractice action against Rush Presbyterian St. Luke's Medical Center (the hospital) filed by plaintiff, Daniel Greenock, to recover for the wrongful death of plaintiff's decedent. Suit was filed on November 1, 1976, alleging the death of plaintiff's decedent on April 11, 1973, caused by the hospital's negligence during a renal transplant on plaintiff's decedent, and that the acts of negligence were willfully concealed by the hospital.
Prior to the filing of the wrongful death action, the hospital filed a suit for collection of an unpaid bill for services to plaintiff's decedent. This suit was filed against Joseph Greenock who filed a counterclaim on August 5, 1974, alleging that the hospital knew that no monies were owed it and seeking damages because the hospital's collection suit was wrongfully brought. The collection suit was consolidated with the wrongful death action on February 4, 1977. Joseph Greenock is not a party to the wrongful death action.
A motion to dismiss was filed by the hospital in the wrongful death action, pleading the bar of the Wrongful Death Act's 2-year filing period. (Ill. Rev. Stat. 1975, ch. 70, par. 2.) Relying upon section 17 of the Limitations Act (Ill. Rev. Stat. 1975, ch. 83, par. 18), the circuit court denied the motion, stating that although the action might otherwise be time-barred, it was properly brought because of the pendency of the counterclaim by Joseph Greenock in the collection suit. The circuit court certified the question of law for appeal under Supreme Court Rule 308 (Ill. Rev. Stat. 1975, ch. 110A, par. 308), as follows:
"The court further finds the applicable question of law involved to be: Whether the plaintiff's filing of a counter-claim in a separate lawsuit will toll the running of the statute of limitations of the Wrongful Death Act, chap. 70, sec. 2 of Ill. Revised Statutes for filing of a separate wrongful death cause of action."
This court allowed the hospital's petition for leave to appeal pursuant to the certified question.
Although the question of law set forth above was certified for our review, plaintiff advances several grounds in addition to section 17 for affirming the denial of the hospital's motion to dismiss. First, plaintiff argues that section 21.1 of the Limitations Act (Ill. Rev. Stat. 1977, ch. 83, par. 22.1) and recent decisions broadening the discovery rule in medical malpractice cases supersede the 2-year limitation provision of the Wrongful Death Act in actions alleging malpractice. Second, plaintiff contends the filing of the wrongful death action effectuated an amendment to the counterclaim in the collection suit and therefore under section 46(2) of the Civil Practice Act (Ill. Rev. Stat. 1975, ch. 110, par. 46(2)) is not time-barred because it relates back to August 5, 1974, the date the counterclaim was filed. Last, plaintiff contends his allegations of fraudulent concealment were sufficient to withstand the motion to dismiss.
1 We first examine the applicability of section 21.1 to plaintiff's claim. It provides:
"No action for damages for injury or death against any physician 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 5 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." (Emphasis added.)
Plaintiff contends section 21.1 applies to all medical malpractice actions, including wrongful death, because the statute explicitly applies to actions for "damages for injury or death," thereby implicitly replacing section 2 of the Wrongful Death Act in medical malpractice actions. Plaintiff also argues that section 21.1 incorporates the discovery rule set forth in the landmark case of Lipsey v. Michael Reese Hospital (1970), 46 Ill.2d 32, 262 N.E.2d 450. Plaintiff's interpretation of the discovery rule is that a cause of action does not accrue until it is learned that the death resulted from negligence. Thus, plaintiff argues that a reasonable interpretation of section 21.1 is that even in the case of death the 2-year limitation period does not commence until all of the elements of the cause of action, including negligence, are discovered.
The hospital contends that section 21.1 is an unconstitutional amendment to the Wrongful Death Act and for that reason the limitations period to be applied is 2 years from date of death prescribed by section 2 of the Wrongful Death Act. It is unnecessary to consider whether the enactment of section 21.1 of the Limitations Act conflicts with any constitutional provision because in any event, plaintiff's action would be barred under that section as well.
Specifically in relation to medical malpractice actions for death in which the fact of the death is known, section 21.1 states: "No action for * * * death * * * shall be brought more than 2 years after the date on which the claimant knew * * * of the * * * death for which damages are sought in the action * * *." It is clear that the event which commences the statute running is the claimant's knowledge of the death. Under the plain wording of the statute, the 2-year period would have commenced running on April 11, 1973, the date plaintiff knew of the death, and the present action would be barred. We cannot read into section 21.1 an extra extension of time for plaintiff to bring suit following death when it is not clearly provided for by the statute.
2, 3 We next turn to section 17 of the Limitations Act, the provision on which the circuit court relied to save plaintiff's action. It reads:
"A defendant may plead a set-off or counter claim barred by the statute of limitation, while held and owned by him, to any action, the cause of which was owned by the plaintiff or person under whom he claims, before such set-off or counter claim was so barred, and not otherwise: Provided, this section shall not affect the right of a bona fide assignee ...