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Moon v. Rhode

Supreme Court of Illinois

September 22, 2016

RANDALL W. MOON, Appellant,
CLARISSA F. RHODE et al., Appellees.

          JUSTICE THEIS delivered the judgment of the court, with opinion. Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Karmeier, and Burke concurred in the judgment and opinion.



         ¶ 1 This appeal arises from an order of the circuit court of Peoria County granting the motion of defendants, Dr. Clarissa Rhode and Central Illinois Radiological Associates, Ltd., to dismiss as time-barred plaintiff Randall Moon's complaint brought under the Wrongful Death Act (740 ILCS 180/1 et seq. (West 2012)) and the Survival Act (755 ILCS 5/27-6 (West 2012)). The appellate court affirmed and held that the two-year statute of limitations for filing the complaint began to run at the time of decedent's death and not after plaintiff discovered defendants' alleged medical negligence. 2015 IL App (3d) 130613, ¶¶ 20, 32. For the reasons that follow, we reverse the judgment of the appellate court and remand for further proceedings.

         ¶ 2 BACKGROUND

         ¶ 3 On May 18, 2009, plaintiff's 90-year-old mother, Kathryn Moon, was admitted to Proctor Hospital in Peoria for a rectal prolapse. On May 20, 2009, Dr. Jeffrey Williamson performed a perineal proctectomy on Kathryn and, along with his associate, Dr. Jayaraj Salimath, followed her postoperatively. During Kathryn's hospitalization, she experienced numerous complications, including labored breathing, pain, fluid overload, pulmonary infiltrates, pneumoperitoneum, sepsis, and an elevated white blood cell count. On May 23, 2009, Dr. Salimath ordered computed tomography (CT) scans of Kathryn's chest and abdominal area. Dr. Rhode, a radiologist, read the CT scans on May 24, 2009. Plaintiff returned from out of state to his mother's bedside on the evening of May 27, 2009. Her oxygen levels had significantly dropped, and she was not awake or responsive. On May 29, 2009, Kathryn died in the hospital.

         ¶ 4 On June 9, 2009, plaintiff, an attorney and one of Kathryn's four children, was appointed as executor of his mother's estate. On February 26, 2010, plaintiff executed an authorization to obtain Kathryn's complete medical file from Proctor Hospital, which included the CT scans. On March 10, 2010, plaintiff received the requested records.

         ¶ 5 On April 11, 2011, plaintiff contacted a medical consulting firm to review Kathryn's medical records. On April 21, 2011, plaintiff received Dr. Roderick Boyd's oral opinion that Drs. Williamson and Salimath were negligent in treating Kathryn after her admission to the hospital. On May 2, 2011, plaintiff received a written report from Dr. Boyd setting forth his specific findings of purported negligence against Drs. Williamson and Salimath. In the report, he was critical of the two doctors for waiting "almost a week to attempt to treat the infection and supply sufficient oxygen" to Kathryn.

         ¶ 6 On May 10, 2011, plaintiff filed a complaint against Drs. Williamson and Salimath alleging, inter alia, that they failed to diagnose and/or timely treat Kathryn's pneumonia and respiratory distress. [1] On May 8, 2012, plaintiff's discovery deposition was taken in that lawsuit. When asked in the deposition how his mother's death had affected him, he responded, "[e]ven though she was fairly old, my impression was that she was doing okay and that, you know, she should have gotten better treatment than she did."

         ¶ 7 Almost two years later, on February 28, 2013, Kathryn's CT scans from May 2009 were reviewed by Dr. Abraham Dachman upon plaintiff's request. On March 4, 2013, Dr. Dachman provided plaintiff with a report stating that he had reviewed the CT scans and Dr. Rhode failed to identify "large loculated extraluminal collection of fluid, " which a "reasonably, well-qualified radiologist and physician would have identified." Dr. Dachman further opined that Dr. Rhode's failure to properly identify those findings caused or contributed to the injury and death of Kathryn.

         ¶ 8 On March 18, 2013, plaintiff filed the instant cause of action, pursuant to the Wrongful Death Act (Act) (740 ILCS 180/1 et seq. (West 2012)) and the Survival Act (755 ILCS 5/27-6 (West 2012)), claiming medical malpractice against Dr. Rhode and her employer, Central Illinois Radiological Associates, Ltd. Plaintiff alleged, inter alia, that he did not discover that Dr. Rhode had failed to diagnose the breakdown of the anastomosis until February 28, 2013, when Dr. Dachman reviewed the CT scans taken on May 23 and 24, 2009.

         ¶ 9 Defendants filed a motion to dismiss plaintiff's complaint under section 2-619(a)(5) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(5) (West 2012)). Defendants asserted that plaintiff's cause of action was time-barred, citing both section 13-212(a) of the Code (735 ILCS 5/13-212(a) (West 2012)) and section 2(c) of the Act (740 ILCS 180/2(c) (West 2012)), because it was filed more than two years after Kathryn's death. Defendants also argued that plaintiff had sufficient information more than two years before he filed his complaint to put him on inquiry to determine whether actionable conduct was involved. Therefore, according to defendants, even if the "discovery rule" applied, the record showed that the complaint was still untimely filed.

         ¶ 10 The trial court granted defendants' motion and dismissed the complaint with prejudice. The trial court held that the complaint was untimely because the date of Kathryn's death was the "date from which the two-year statute [of limitations] should be measured." The trial court further stated that "even if we give everybody the benefit of the doubt and try to fix a date at which a reasonable person was placed on inquiry as to whether there was malpractice, even that was long gone by the time the complaint was filed."

         ¶ 11 A divided appellate court affirmed. 2015 IL App (3d) 130613, ¶ 32. The appellate majority held that plaintiff was required to file his complaint within two years of the date on which he knew or reasonably should have known of Kathryn's death. Id. ¶ 20. Acknowledging its disagreement with other districts of the appellate court, the appellate majority found that the discovery rule contained in section 13-212(a) of the Code has no application to a wrongful death or a survival action because both causes of action were legislatively created and not found at common law. Id. ¶¶ 14, 16. Because plaintiff in this case had two years from the date on which he knew or should have known of Kathryn's death to file his complaint and he failed to do so, the appellate majority concluded that the trial court properly granted defendants' motion to dismiss the complaint with prejudice. Id. ¶ 20. With limited elaboration, the appellate majority also noted that plaintiff filed his complaint more than two years after he had sufficient information to put him on inquiry to determine whether actionable conduct by Dr. Rhode was involved. Id. ¶ 27. Consequently, even if the discovery rule were applied in this case, the appellate majority believed plaintiff's complaint would still be untimely. Id.

         ¶ 12 The dissenting justice wrote to highlight that the majority's conclusion that the discovery rule contained in section 13-212(a) of the Code does not apply to wrongful death or survival actions conflicts with more than 30 years of state and federal court precedent. 2015 IL App (3d) 130613, ¶ 35 (Lytton, J., dissenting). Based on the circumstances here, the dissenting justice believed that a reasonable trier of fact could conclude that plaintiff did not possess sufficient information to know that Kathryn's death was wrongfully caused until May 2011, when plaintiff received Dr. Boyd's report, in which case plaintiff's complaint, filed within two years of that date, would have been timely. Id. ¶ 60. Because a disputed question of fact remained about when the statute of limitations began to run against defendants, the dissenting justice would have reversed the trial court's dismissal of plaintiff's complaint. Id.

         ¶ 13 Plaintiff filed a petition for leave to appeal (Ill. S.Ct. R. 315 (eff. July 1, 2013)), which we granted. We also allowed the Illinois Association of Defense Trial Counsel, as well as the Illinois State Medical Society and American Medical Association, leave to file amicus curiae briefs in support of defendants. Ill. S.Ct. R. 345 (eff. Sept. 20, 2010).

         ¶ 14 ANALYSIS

         ¶ 15 Defendants' motion to dismiss plaintiff's complaint was brought pursuant to section 2-619(a)(5) of the Code (735 ILCS 5/2-619(a)(5) (West 2012)). When deciding a section 2-619 motion, a court accepts all well-pleaded facts in the complaint as true and will grant the motion when it appears that no set of facts can be proved that would allow the plaintiff to recover. Feltmeier v. Feltmeier, 207 Ill.2d 263, 267 (2003). Specifically, under section 2-619(a)(5), a defendant is entitled to a dismissal if the "action was not commenced within the time limited by law." 735 ILCS 5/2-619(a)(5) (West 2012). Our review of an order granting a section 2-619 motion is de novo. Henderson Square Condominium Ass'n v. LAB Townhomes, LLC, 2015 IL 118139, ¶ 34.

         ¶ 16 I

         ¶ 17 We first must determine whether, as plaintiff argues, the appellate court erred in concluding that the discovery rule contained in section 13-212(a) of the Code (735 ILCS 5/13-212(a) (West 2012)) is not applicable to wrongful death and survival actions predicated upon medical malpractice.

         ¶ 18 A wrongful death cause of action is brought by the personal representative of the decedent to provide the surviving spouse and next of kin compensation for the pecuniary losses suffered by reason of the decedent's death. Turcios v. The DeBruler Co., 2015 IL 117962, ¶ 17. In contrast, the Survival Act does not create a statutory cause of action. Id. It merely allows a representative of the decedent ...

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