Appeal from the Circuit Court of Du Page County; the Hon.
Robert A. Nolan, Judge, presiding.
JUSTICE VAN DEUSEN DELIVERED THE OPINION OF THE COURT:
The plaintiff appeals from an order dismissing her three-count, medical malpractice complaint on the ground that it was barred by the statute of limitations. Ill. Rev. Stat. 1979, ch. 83, pars. 15 and 22.1.
The plaintiff, Evelyn Coleman, as executor of the estate of Ida McCarty, filed an action on August 26, 1980, against the Hinsdale Sanitarium and Hospital. In her complaint she alleged that the negligent treatment of Ida McCarty by the defendant resulted in Ida McCarty's death on May 18, 1978. The complaint also alleged that the plaintiff did not learn and could not have learned with reasonable diligence of defendant's negligent actions until January 16, 1979. Finally, the plaintiff alleges that the action is brought under the authority of section 21.1 of "An Act in regard to limitations" (Ill. Rev. Stat. 1979, ch. 83, par. 22.1) (hereinafter referred to as the Limitations Act).
On January 12, 1981, plaintiff was granted leave to file an amended complaint. In this complaint, she joined the following defendants: Hinsdale Emergency Medical Corporation, Zednek Durek, DeWayne Butcher, Oldrich Prec, and R.S. Callaghan. The amended complaint alleged that all of the defendants had given negligent medical treatment to plaintiff's decedent. It further alleged that the action was brought pursuant to section 21.1 of the Limitations Act and that plaintiff did not learn, nor could she have learned with reasonable diligence, of the defendants' negligence prior to January 16, 1979. All of the defendants filed motions to dismiss plaintiff's amended complaint on the ground that the complaint was barred by the statute of limitations. All of the motions to dismiss seem to allege that because plaintiff discovered the alleged negligence of the defendants prior to the running of the two-year statute of limitations for personal injury actions contained in section 14 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 15), she could not invoke the discovery rule contained in section 21.1 to extend the time period in which to file her action.
On September 28, 1981, the trial court issued a memorandum of decision in which he dismissed plaintiff's complaint against all defendants on the ground that section 21.1 was not applicable because plaintiff had discovered or was notified of the alleged negligence causing the injury several months prior to the running of the two-year statute of limitations set out in section 14. On October 30, 1981, the trial court entered an order dismissing the complaint as to all defendants. Notice of appeal was filed on Monday, November 30, 1981.
The principle issue raised on appeal is whether the plaintiff, who discovered the possibility of the wrongful causation of the decedent's death within the initial two-year period allowed by section 14 of the Limitations Act, may invoke the discovery rule of section 21.1 of the Limitations Act to extend the period of time in which to file her action. While this was the sole issue raised in the defendant's motions to dismiss and the sole issue considered by the trial court, the defendant Hinsdale Sanitarium and Hospital raises several other grounds for justifying the dismissal of the complaint. These issues include: (1) whether the requirement of section 2(c) of the Wrongful Death Act (Ill. Rev. Stat. 1979, ch. 70, par. 2(c)) that a wrongful death action be filed within two years of death is a condition precedent to bringing suit and is unaffected by any discovery rule; (2) whether the language of section 21.1 limits the filing period of two years after the discovery of death; and (3) whether the facts as pleaded in plaintiff's complaint properly invoke the discovery rule as set out in section 21.1.
• 1 These three issues were not before the trial court when it ruled on the motion. Ordinarily, an issue not presented to the trial court cannot be raised for the first time on appeal; however, a corollary to this rule permits an appellee to defend a judgment on review by raising an issue not previously ruled upon by the trial court if the necessary factual basis for the determination of such point is contained in the record, and the points argued on appeal are commensurate with the issues presented to the trial court. (Kravis v. Smith Marine, Inc. (1975), 60 Ill.2d 141, 147.) We will, therefore, review the additional issues raised by Hinsdale Sanitarium and Hospital.
The defendants first contend that this suit is a wrongful death action and as such it is to be governed by section 2(c) of the Wrongful Death Act (Ill. Rev. Stat. 1979, ch. 70, par. 2(c)), which provides that every death action shall be commenced within two years after the death of such person. The defendants argue that "Illinois courts> consistently have held that the right of action for wrongful death is wholly statutory and that the provision in the statute creating the right that requires the action to be brought within the specified time is a condition attached to the right to sue and is not merely a statute of limitations." (Country Mutual Insurance Co. v. National Bank (1969), 109 Ill. App.2d 133, 139.) The defendants further assert that the statute alone is the source of the right to sue, and therefore should be strictly construed. (Wilson v. Tromly (1949), 404 Ill. 307, 310.) The defendants conclude because the plaintiff failed to file the suit within two years of decedent's death, the plaintiff lost her right to sue.
The strict application of the two-year limitation on wrongful death action espoused in Wilson v. Tromly has lessened. In Wilbon v. D.F. Bast Co. (1978), 73 Ill.2d 58, 73, the supreme court characterized this strict application of the act as a "much criticized concept stemming from questionable antecedents" and held that the two-year limitation period on a wrongful death action does not begin to run against minors until they reach majority. In Praznik v. Sport Aero, Inc. (1976), 42 Ill. App.3d 330, the plaintiff's decedents had been missing since March 1969 when they left for the Bahamas in one of the defendant's aircrafts. Two years and eight months later the actual wreckage was discovered. The court held that the two-year limitation period did not begin to run until after the plaintiff had actually discovered the deaths and the wreckge of the aircraft. Finally, in Kenney v. Churchill Truck Lines, Inc. (1972), 6 Ill. App.3d 983, the statutory period was tolled during the period of military service.
In addition to Praznik, two other cases could be found in which the court discussed the application of the discovery rule in wrongful death cases: Fure v. Sherman Hospital (1978), 64 Ill. App.3d 259, and In re Johns-Manville Asbestosis Cases (N.D. Ill. 1981), 511 F. Supp. 1235.
In Fure v. Sherman Hospital, this court addressed the precise issue raised by the defendants. In that case, the plaintiff's decedent, Duane Fure, became suddenly ill and was admitted to defendant hospital on January 13, 1973. After receiving treatment from the defendants, Mr. Fure's condition worsened, and he expired on January 15, 1973. The plaintiff, Lynda Fure, alleged that she discovered that her husband's death was caused by erroneous diagnosis and negligent treatment in the fall of 1975. Shortly thereafter, in November of 1975, almost three years after her husband's death, she filed suit. The trial court dismissed her complaint on the ground that it was not brought within two years of the date of the death as required by section 2(c) of the Wrongful Death Act.
On appeal this court reversed the trial court's dismissal. This court recognized that historically the two-year limitation for bringing an action under the Wrongful Death Act has been regarded as a condition precedent which is not to be modified or affected by the general statute of limitations. (64 Ill. App.3d 259, 264.) The court then noted that the legislature can change and, on occasion, has changed the wrongful death statute and that the two-year period for bringing the suit is not beyond judicial construction. (64 Ill. App.3d 259, 267.) After an in-depth review of cases that have allowed a tolling of the two-year period (i.e., Wilbon v. D.F. Bast Co. (1978), 73 Ill.2d 58; Praznik v. Sport Aero, Inc. (1976), 42 Ill. App.3d 330; Kenney v. Churchill Truck Lines, Inc. (1972), 6 Ill. App.3d 983), as well as, treatises and articles on the wrongful death statute, this court stated that "there should be no barrier to the application of the `discovery' rule based on the ultimate tragedy of death where the circumstances of the death would have permitted an extension of the time limitation for the mere wounding or injury of the person." (64 Ill. App.3d 259, 270.) This court concluded that the fact of death does not foreclose the use of the discovery doctrine.
Similarly, in In re Johns-Manville Asbestosis Cases (N.D. Ill. 1981), 511 F. Supp. 1235, the Federal district court held that the language in both Wilbon and Praznik, indicated that the discovery rule might well be applied in a wrongful death action. The court found the lengthy discussion in Fure to be persuasive and more direct authority to that effect. The court also noted that the Illinois Supreme Court's analysis in Nolan v. Johns-Manville Asbestos (1981), 85 Ill.2d 161, seems to support extension of the discovery rule to wrongful death claims in asbestosis litigation. The court then concluded that because it is highly likely that both the Illinois Supreme Court and the Illinois Appellate Court would apply the common law discovery rule to a plaintiff's claim brought under the Wrongful Death Act, they would apply the rule to the asbestosis cases involving wrongful death. 511 F. Supp. 1235, 1239.
• 2 After examining these and other cases, we also conclude that the discovery rule of section 21.1 of the Limitations Act should be applicable in an ...