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09/30/97 MEGHAN O'BRIEN v. KEVIN O'DONOGHUE

September 30, 1997

MEGHAN O'BRIEN, ADMINISTRATOR OF THE ESTATE OF JOSEPH O'BRIEN, DECEASED, PLAINTIFF-APPELLANT,
v.
KEVIN O'DONOGHUE, M.D., WILLIAM MILLMAN, M.D., OAK PARK CARDIOLOGISTS GROUP, LTD., A CORPORATION, AND J. KEVIN O'DONOGHUE, M.D., AND WILLIAM L. MILLMAN, LTD., A CORPORATION, DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Cook County. No. 94 L 13929. Honorable Julia M. Nowicki, Judge Presiding.

Released for Publication November 26, 1997.

The Honorable Justice Zwick delivered the opinion of the court. Greiman, P.j., and Quinn, J., concur.

The opinion of the court was delivered by: Zwick

The Honorable Justice ZWICK delivered the opinion of the court:

Plaintiff instituted this action asserting wrongful death and survival claims based upon the death of plaintiff's decedent, Joseph O'Brien, who died after receiving medical treatment rendered by defendants. The trial court dismissed plaintiff's complaint, finding that the claims asserted were barred because they were not presented until after expiration of the applicable statutes of repose, and plaintiff has appealed.

The record reveals that decedent began receiving medical treatment from defendant O'Donoghue in July 1987 and commenced treatment with defendant Millman in 1988. The last date of treatment by any of the defendants was October 1, 1990, and the decedent died on September 17, 1994. At the time of his death, the decedent was survived by his four children: Meg, born April 21, 1972; Joseph IV, born May 18, 1983; Patrick, born January 29, 1985; and Matthew, born August 26, 1988.

On November 2, 1994, plaintiff filed suit against defendants, asserting survival claims on behalf of the estate and wrongful death claims on behalf of the minor children as beneficiaries. Plaintiff's complaint alleged that the decedent's injuries and death were proximately caused by the negligence of defendants in failing to properly diagnose and treat decedent's blocked renal artery. Defendants moved for dismissal of all claims pursuant to section 2-619 of the Illinois Code of Civil Procedure (735 ILCS 5/2-619 (West 1994)), asserting that they were not timely filed. The trial court granted defendants' motion and dismissed plaintiff's complaint, finding that there were no exceptions to the applicable four-year statute of repose set forth in section 13-212 of the Illinois Code of Civil Procedure (735 ILCS 5/13-212 (West 1994)).

On appeal, plaintiff contends that the trial court erred in finding that the wrongful death and survival claims were untimely filed.

We initially address plaintiff's argument that the trial court erred in dismissing the survival claims which sought recovery for injuries sustained by the decedent prior to his death. In resolving this issue, we must determine the combined effect of two distinct legislative enactments, sections 13-212 and 13-209 of the Code of Civil Procedure, upon the medical malpractice claim asserted by plaintiff.

The applicable limitations period for the survival claims brought by the plaintiff, in her capacity as administrator of the estate, is defined in section 13-212(a) of the Illinois Code of Civil Procedure, which provides as follows:

"Physician or hospital. (a) Except as provided in Section 13-215 of this Act, no action for damages for injury or death against any physician *** 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 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." 735 ILCS 5/13-212(a) (West 1994)

This provision specifies a two-year limitations period which commences at the time of discovery of the cause of action, but also establishes a four-year statute of repose which restricts the time for filing the claim, regardless of the date of discovery.

However, section 13-209 states as follows:

"Death of party. If a person entitled to bring an action dies before the expiration of the time limited for the commencement thereof, and the cause of action survives, an action may be commenced by his or her representatives before the expiration of that time, or within one year from his or ...


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