Opinion

Moon v. Rhode

2015 IL App (3d) 130613

Court: Appellate Court of Illinois
Filed: Aug 7, 2015
Status: Published
Cited by: 6 cases
Authority: More cited than 55.7%

The opinion

Illinois Official Reports

Appellate Court

Moon v. Rhode, 2015 IL App (3d) 130613

Appellate Court RANDALL W. MOON, Executor of the Estate of Kathryn Moon,

Caption Deceased, Plaintiff-Appellant, v. CLARISSA F. RHODE, M.D., and

CENTRAL ILLINOIS RADIOLOGICAL ASSOCIATES, LTD.,

Defendants-Appellees.

District & No. Third District

Docket No. 3-13-0613

Filed April 10, 2015

Modified upon denial

of rehearing June 15, 2015

Decision Under Appeal from the Circuit Court of Peoria County, No. 13-L-69; the

Review Hon. Richard D. McCoy, Judge, presiding.

Judgment Affirmed.

Counsel on Randall W. Moon (argued), of Washington, Pennsylvania, pro se, and

Appeal Michael T. Reagan, of Law Offices of Michael T. Reagan, of Ottawa,

for appellant.

Nicholas J. Bertschy, Craig L. Unrath (argued), and J. Matthew

Thompson, all of Heyl, Royster, Voelker & Allen, of Peoria, for

appellees.

Panel JUSTICE SCHMIDT delivered the judgment of the court, with

opinion.

Presiding Justice McDade concurred in the judgment and opinion.

Justice Lytton dissented, with opinion.

OPINION

¶1 Over three years after his mother Kathryn Moon’s death, plaintiff, Randall Moon, as

executor, filed a wrongful death and survival action against defendants, Dr. Clarissa Rhode

and Central Illinois Radiological Associates, Ltd. Defendants filed a motion to dismiss

plaintiff’s complaint, alleging that the complaint was untimely. The trial court granted

defendants’ motion.

¶2 Plaintiff appeals, arguing that the trial court erred in granting defendants’ motion.

Specifically, plaintiff contends that the discovery rule applied and that the statute of limitations

did not begin to run until the date on which he knew or reasonably should have known of

defendants’ negligent conduct.

¶3 BACKGROUND

¶4 Ninety-year-old Kathryn Moon was admitted to Proctor Hospital on May 18, 2009. Two

days later, Dr. Jeffery Williamson performed surgery on Kathryn. Williamson attended to

Kathryn from May 20 through May 23, 2009. Kathryn was under Dr. Jayaraji Salimath’s care

from May 23 through May 28, 2009. She died on May 29, 2009.

¶5 During Kathryn’s hospitalization, she experienced numerous complications, including

labored breathing, pain, fluid overload, pulmonary infiltrates, and pneumo-peritoneum.

Pursuant to Dr. Salimath’s order, Kathryn underwent CT scans on May 23 and May 24, 2009.

Dr. Clarissa Rhode, a radiologist, read and interpreted the two CT scans.

¶6 The court appointed plaintiff, an attorney, as executor of Kathryn’s estate in June of 2009.

Eight months later, in February 2010, plaintiff executed a Health Insurance Portability and

Accountability Act (HIPAA) (42 U.S.C. § 201 (2006)) authorization to obtain Kathryn’s

medical records from Proctor Hospital. Plaintiff received the records in March of 2010. In

April of 2011, 14 months after receiving the records, plaintiff contacted a medical consulting

firm to review Kathryn’s medical records. At the end of April 2011, plaintiff received a verbal

report from Dr. Roderick Boyd, stating that Williamson and Salimath were negligent in

treating Kathryn. On May 1, 2011, plaintiff received a written report from Boyd setting forth

his specific findings of negligence against Williamson and Salimath.

¶7 On May 10, 2011, plaintiff filed a separate medical negligence action against Drs.

Williamson and Salimath. On March 8, 2012, plaintiff testified at his deposition that “even

though [my mother] was fairly old, my impression was that she was doing okay and that, you

know, she should have gotten better treatment than she did.”

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¶8 In February of 2013, almost four years after decedent’s death and almost three years after

receipt of her medical records, plaintiff sent radiographs to Dr. Abraham Dachman for review.

On February 28, 2013, Dachman reviewed the May 24, 2009, CT scan. Dachman provided

plaintiff with a report stating that the radiologist who read and interpreted the CT scan failed to

identify the breakdown of the anastomosis, which a “reasonably, well-qualified radiologist and

physician would have identified.” Dachman further stated that the radiologist’s failure to

properly identify the findings caused or contributed to the injury and death of the patient. On

March 18, 2013, plaintiff filed both wrongful death and survival claims against Dr. Rhode and

her employer, Central Illinois Radiological Associates, Ltd. Plaintiff alleged that he did not

discover that Rhode was negligent until Dachman reviewed the CT scan.

¶9 Defendants filed a motion to dismiss pursuant to section 2-619(a)(5) of the Code of Civil

Procedure (the Code) (735 ILCS 5/2-619(a)(5) (West 2010)), arguing that the two-year statutes

of limitations for both wrongful death and survival actions had expired. Alternatively,

defendants argued that even if the discovery rule applied, the record affirmatively showed that

the complaint was nevertheless untimely filed. The trial court granted defendants’ motion to

dismiss and found that the date of Kathryn’s death was the “date from which the two-year

statute should be measured.” The court furthered 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.”

¶ 10 Plaintiff appeals. We affirm.

¶ 11 ANALYSIS

¶ 12 Plaintiff argues that the trial court erred in granting defendants’ motion to dismiss. The

discovery rule, says plaintiff, allowed him to file his complaint within two years from the time

he knew or should have known of the negligent conduct. Defendants argue that the discovery

rule does not apply and plaintiff had to file his complaint within two years from Kathryn’s

death. Alternatively, defendants argue that even if the discovery rule applied, the record

affirmatively showed that plaintiff filed the complaint more than two years after a reasonable

person knew or should have known of the alleged negligent conduct.

¶ 13 We review de novo the trial court’s order granting a motion to dismiss. Kedzie & 103rd

Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116 (1993). Under the de novo standard,

our review is independent of the trial court’s determination; we need not defer to the trial

court’s judgment or reasoning. Nationwide Advantage Mortgage Co. v. Ortiz, 2012 IL App

(1st) 112755, ¶ 20 (citing People v. Vincent, 226 Ill. 2d 1, 14 (2007)). A defendant may file a

motion to dismiss an action where the plaintiff failed to commence the action within the time

allowed by law. 735 ILCS 5/2-619(a)(5) (West 2010). Plaintiff’s wrongful death claim was

brought pursuant to the Wrongful Death Act (the Act) (740 ILCS 180/0.01 et seq. (West

2010)). Section 2 of the Act states that “[e]very such action shall be commenced within 2 years

after the death of such person.” 740 ILCS 180/2 (West 2010). Section 13-212(a), relating to

suits against physicians, provides that suit shall be filed within two years of knowledge of the

death (735 ILCS 5/13-212(a) (West 2010)).

¶ 14 Plaintiff relies on Young v. McKiegue, 303 Ill. App. 3d 380 (1999), and Wells v. Travis, 284

Ill. App. 3d 282 (1996), to support his position that the discovery rule applied in this case. The

Young and Wells courts held that where a wrongful death claim is predicated upon a claim of

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medical malpractice that was not apparent to the plaintiff at the time of death, the statute of

limitations applicable to medical malpractice actions governs the time for filing. Young, 303

Ill. App. 3d at 389; Wells, 284 Ill. App. 3d at 286-87. These two cases also held that the

discovery rule applied to wrongful death suits against physicians. We believe that to the extent

both cases read into section 13-212(a) language “which is clearly not there,” Young and Wells

were incorrectly decided and refuse to follow them for the following reasons. See Wyness v.

Armstrong World Industries, Inc., 131 Ill. 2d 403, 416 (1989).

¶ 15 Section 13-212(a) of the Code governs the time constraints for medical malpractice claims

(735 ILCS 5/13-212(a) (West 2010)). Section 13-212(a), in pertinent part, states:

“[N]o action for damages for injury or death against any physician, dentist, registered

nurse 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 ***.” (Emphasis added.) 735 ILCS 5/13-212(a) (West 2010).

¶ 16 However, section 13-212 does not create a cause of action. Instead, it merely places a

limitation on the filing of medical malpractice actions. Here, plaintiff’s cause of action was for

wrongful death, a cause of action that did not exist at common law. Young and Wells relied on

Witherell v. Weimer, 85 Ill. 2d 146 (1981), a common law personal injury action, to attach a

discovery rule to a wrongful death action against a physician. A reading of Witherell simply

does not support such a holding. The Witherell court read section 13-212(a) within the context

of the discovery rule to mean that the two-year malpractice limitations period begins to run

when one knew or should have known of the injury and also knew or should have known that

the injury was wrongfully caused. Witherell, 85 Ill. 2d at 156. However, the discovery rule

cannot be found in the plain language of either the Act or section 13-212(a). Personal injury

actions were born of the common (judge-made) law and are susceptible to changes by the

judiciary. Not so with respect to wrongful death actions, which are creatures of the legislature.

Likewise, at common law your personal injury action died with you. The Survival Act, too, is a

creature of the legislature (755 ILCS 5/27-6 (West 2010)). It allows for recovery of damages

the injured party could have recovered, had she survived.

¶ 17 Our supreme court stated that the discovery rule does not alter the fact that the Wrongful

Death Act created a new cause of action for death in 1853. Wyness, 131 Ill. 2d at 413. It is well

established that we will strictly construe a statute that is in derogation of the common law.

In re W.W., 97 Ill. 2d 53, 57 (1983). The court will not read language into a statute that is not

there. Wyness, 131 Ill. 2d at 416; see also People v. Perry, 224 Ill. 2d 312, 323-24 (2007)

(citing People v. Martinez, 184 Ill. 2d 547, 550 (1998) (the court will not read into the statute

exceptions, limitations, or conditions that conflict with the expressed intent)). The General

Assembly is capable of providing a limitation period based on knowledge as evident by section

13-212(a). Wyness, 131 Ill. 2d at 416.

¶ 18 So what did the General Assembly provide with respect to the filing of wrongful death and

survival actions against physicians? It clearly provided that a claimant must file a wrongful

death action within two years from 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 [sic] occurs

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first.” 735 ILCS 5/13-212(a) (West 2010). The required knowledge is of the death or injury,

not of the negligent conduct. If the General Assembly wanted to provide a limitations period in

the Act commencing when one had knowledge of the negligent conduct, it would have done so.

Wyness, 131 Ill. 2d at 416.

¶ 19 The plain language of the Act required the plaintiff to file a wrongful death claim within

two years of the date on which plaintiff knew of the death. Greenock v. Rush Presbyterian St.

Luke’s Medical Center, 65 Ill. App. 3d 266 (1978). We conclude that Young and Wells were

wrongly decided. Likewise, we decline to follow similar cases such as Coleman v. Hinsdale

Emergency Medical Corp., 108 Ill. App. 3d 525 (1982) (The court held that the discovery rule

applied to wrongful death cases; plaintiff had two years to file his claim after he discovered or

should have discovered the death and its wrongful causation.), Arndt v. Resurrection Hospital,

163 Ill. App. 3d 209 (1987) (relying on Coleman, the court found that the statute of limitations

for wrongful death actions began to run when plaintiff discovered that defendant’s negligence

contributed to the death of the decedent), and Hale v. Murphy, 157 Ill. App. 3d 531 (1987)

(following Coleman, the court held that the discovery rule in the medical malpractice statute

was applicable to wrongful death cases and the limitation period began when plaintiff knew or

should have known of the injury and knew or should have know that the injury was wrongfully

caused).

¶ 20 Applying the limitation period set forth in section 13-212(a) to the present case, plaintiff

had two years from the date on which he knew or should have known of Kathryn’s death to file

a complaint (735 ILCS 5/13-212(a) (West 2010)). It is undisputed that plaintiff filed this action

more than two years after he knew or should have known of Kathryn’s death. Therefore, we

need not discuss a situation where plaintiff filed a medical malpractice suit within two years of

learning of a death, but more than two years after the death. Plaintiff filed a wrongful death

claim against defendants beyond the time allowed in either the Act (740 ILCS 180/2 (West

2010)) or the medical malpractice statute of limitations (735 ILCS 5/13-212(a) (West 2010)).

The trial court did not err in granting defendants’ motion to dismiss.

¶ 21 We acknowledge that some appellate courts have applied the discovery rule to wrongful

death actions where circumstances surrounding the death permitted an extension of time. Fure

v. Sherman Hospital, 64 Ill. App. 3d 259 (1978); Praznik v. Sport Aero, Inc., 42 Ill. App. 3d

330 (1976). In Praznik, the court held that the cause of action for wrongful death did not accrue

until the aircraft wreckage was discovered, despite the fact that the accident happened more

than two years and eight months prior to the discovery. Praznik, 42 Ill. App. 3d at 337. In Fure,

the court stated that the discovery rule is only applicable when the circumstances surrounding

the death permit such an extension of time. Fure, 64 Ill. App. 3d at 270. The court further held

that the discovery rule is an exception to the rule and should be invoked sparingly and with

caution. Id. Here, the circumstances surrounding Kathryn’s death do not support an extension

of time; it is undisputed that plaintiff knew the date on which Kathryn died. See Beetle v.

Wal-Mart Associates, Inc., 326 Ill. App. 3d 528 (2001) (court distinguished cases applying

discovery rule to wrongful death where plaintiff was aware of husband’s death on the date it

occurred and failed to file a wrongful death action within two years). We believe that the

medical malpractice statute of limitations codifies the extension set forth in Praznik, at least in

suits against healthcare providers. 735 ILCS 5/13-212(a) (West 2010). The clock starts ticking

when the plaintiff “knew, or through the use of reasonable diligence should have known, ***

of the injury or death.” Id.

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¶ 22 The dissent argues that we concluded “that the discovery rule set forth in section 13-212(a)

of the Code does not apply to wrongful death or survival actions.” Infra ¶ 32. This, of course, is

wrong. We do hold that section 13-212(a) applies and that the plain language of section

13-212(a) provides that the clock starts ticking upon knowledge or notice of the injury or

death, not upon notice of a potential defendant’s negligent conduct. The statute gives a

claimant two years from the date of that knowledge or notice to figure out whether there is

actionable conduct.

¶ 23 Curiously, the dissent cites in detail language from a federal district court judge to the

effect that the Illinois Supreme Court desires full recovery for a decedent’s family against

wrongdoers and that such policies can only be effectuated if the discovery rule is applied to

wrongful death cases. Infra ¶ 38. Both the dissent and federal district court judge fail to

recognize that which the supreme court has recognized and acknowledged: that statutes in

derogation of the common law have always been strictly construed. See Wyness, 131 Ill. 2d at

416; In re W.W., 97 Ill. 2d at 57. The supreme court has specifically acknowledged that the

court “will not read into a statute language which is clearly not there.” Wyness, 131 Ill. 2d at

416. We have looked everywhere possible in section 13-212(a) and nowhere can we find the

language that the dissent would have us read into the statute to the effect that the statute begins

running “when plaintiff discovered the fact of the defendant’s negligence which contributed to

the death.” (Emphasis in original and internal quotation marks omitted.) Infra ¶ 37. With all

due respect to the dissent and the federal district court that the dissent cites with approval, both

are applying common law rules to statutory causes of action contrary to age-old rules of

statutory construction.

¶ 24 Further, the dissent states that “[f]inally, the supreme court, in dicta, has approved the use

of the discovery rule in wrongful death cases.” Infra ¶ 39. The dissent cites Wyness, 131 Ill. 2d

at 413, for this proposition. In Wyness, a wrongful death action, the defendants were arguing

that the statute of limitations should have started running before the death because the plaintiff

knew of decedent’s injuries and the cause of those injuries before the death. We fail to

understand how anyone could read Wyness to support the proposition that the common law

discovery rule applies to wrongful death actions. The actual issue before the court in Wyness

was whether the two-year limitations period of the Wrongful Death Act could be triggered by

the discovery rule such that a cause of action could accrue prior to the death of plaintiff’s

decedent. Wyness, 131 Ill. 2d at 406. In fact, the Wyness court observed that “this court has not

to date applied the discovery rule to wrongful death actions.” Id. at 409. It still has not. The

Wrongful Death Act was first enacted in 1853. The supreme court has had over 160 years to

apply the discovery rule to a wrongful death action and has, to date, resisted the urge.

¶ 25 The dissent acknowledges that statutory language that is clear and unambiguous must be

given effect. Infra ¶ 48. Nowhere does the dissent point to any clear and unambiguous

language in section 13-212(a) that the statute of limitations begins to run when the plaintiff

knows or should have known of defendant’s wrongful conduct which contributed to the death.

That language is not in the Wrongful Death Act and it is not in section 13-212(a). If that

language is to be added, it is to be added by the General Assembly, not the courts. Wyness, 131

Ill. 2d at 416.

¶ 26 The same is true with respect to the survival action. See 755 ILCS 5/27-6 (West 2010). Our

supreme court held that the Survival Act did not create a new cause of action. National Bank of

Bloomington v. Norfolk & Western Ry. Co., 73 Ill. 2d 160, 172 (1978). We suppose that is true

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to the extent that a cause of action to recover damages for personal injury always existed.

However, at common law, your cause of action died with you. Bryant v. Kroger Co., 212 Ill.

App. 3d 335, 336 (1991). The Survival Act, in derogation of common law, provided the

decedent’s representative with the ability to maintain claims that the decedent would have been

able to bring. We will strictly construe a statute that is in derogation of common law. In re

W.W., 97 Ill. 2d at 57. At the very latest, the limitations period for a survival action begins to

run when the injured party dies. Wolfe v. Westlake Community Hospital, 173 Ill. App. 3d 608

(1988). A cause of action, for personal injury arising out of negligence, accrues at the time of

the injury. Fetzer v. Wood, 211 Ill. App. 3d 70, 78 (1991). As stated above, section 13-212(a)

governs the statute of limitations for personal injury actions against physicians; no action

seeking damages for injury against a physician shall be brought more than two years after the

date on which the claimant knew or should have known of the injury or death. Plaintiff cites to

no authority other than Young and Wells, where the court applied the discovery rule to extend

the statute of limitations of a survival action. Here, it does not matter whether the injury

occurred when Dr. Rhode interpreted the CT scans or at the time of death; plaintiff failed to file

his survival action within two years of Kathryn’s death.

¶ 27 The same is true with respect to the survival action. See 755 ILCS 5/27-6 (West 2010). Our