APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, SECOND DIVISION
509 N.E.2d 489, 156 Ill. App. 3d 465, 108 Ill. Dec. 793 1987.IL.611
Appeal from the Circuit Court of Cook County; the Hon. Odas Nicholson, Judge, presiding.
JUSTICE HARTMAN delivered the opinion of the court. STAMOS and BILANDIC, JJ., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE HARTMAN
The issue presented in this appeal is whether the statute of limitations for a wrongful death lawsuit, based upon medical malpractice and brought on behalf of minor children of decedent, is tolled during the minority of decedent's children.
Decedent, Zev N. Dachs, died on December 16, 1973, after receiving medical treatment from defendants Louis A. Weiss Memorial Hospital (hospital) and Dr. Solomon Sobel, who is not a party to this appeal. Four of decedent's children were minors at the time of his death. Their birthdates were December 11, 1964, March 8, 1966, May 7, 1969, and February 28, 1973. Decedent's widow became administrator of her husband's estate on September 17, 1985. On October 24, 1985, she filed a two-count complaint charging defendants with negligence that caused decedent's wrongful death.
On December 6, 1985, the hospital filed a motion to dismiss the complaint with prejudice for failure to comply with the medical malpractice statute of limitations, section 13-212 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 13-212) which provides in pertinent part:
"No action for damages for injury or death against any physician, dentist, registered nurse or hospital . . . 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 . . . whichever of such date occurs first, but in no event shall such action be brought more than 4 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 . . ..
If the person entitled to bring the action is, at the time the cause of action occurred, under the age of 18 years, or under legal disability . . . the period of limitations does not begin to run until the disability is removed."
On May 23, 1986, plaintiff responded to the motion, asserting that the applicable limitations period was set forth in section 2 of the Wrongful Death Act (Ill. Rev. Stat. 1985, ch. 70, par. 2), which provides in pertinent part:
"Every such action shall be commenced within 2 years after the death of such person . . .. . . . However, if a person entitled to recover benefits under this Act, is, at the time the cause of action accrued, within the age of 18 years, he or she may cause such action to be brought within 2 years after attainment of the age of 18."
Following argument, the circuit court denied the hospital's motion and certified the question of the applicable statute of limitations for interlocutory appeal under Supreme Court Rule 308 (87 Ill. 2d R. 308). On July 8, 1986, in response to the hospital's motion, the circuit court vacated a portion of its original order and stayed further proceedings pending this appeal. The question certified is:
"Where a decedent leaves surviving minor children, is a cause of action for his 1973 death, filed in 1985 and predicated on medical malpractice, subject to the limitation period of section 13 -- 212 of the Illinois Code of Civil Procedure (Ill. Rev. Stats. 1985, ch. 110, sec. 13 -- 212) . . . or is it governed by section 2 of the Wrongful Death Act (Ill. Rev. Stats. 1985, ch. 70, sec. 2), providing that the limitation period for bringing ...