Appellate Court Severely Limits the Discovery Rule’s Use in Medical Malpractice Actions
In Illinois, a plaintiff alleging he or she was injured or killed by the negligence of a doctor and/or hospital typically has 2 years to file a lawsuit with the court. See735 ILCS 5/13-212(a). Included within this statute of limitations is the discovery rule which has been interpreted to state that a lawsuit must be filed within 2 years of the date the plaintiff knew or should have known that malpractice occurred. The statute further states that in no event can a cause of action be brought more than 4 years after the date of the alleged malpractice. The time limitations can be longer based upon whether the plaintiff is a minor or disabled. See 735 ILCS 5/13-212(b).
Over the last 30 years or so, the Illinois Appellate Courts have consistently applied this discovery rule to persons who have died as a result of the alleged malpractice. This includes the First, Second, and Fifth District Appellate Courts of Illinois. Those courts’ analysis of the discovery rule as it pertains to wrongful death medical malpractice actions is that the person bringing the lawsuit on behalf of the deceased plaintiff’s estate had 2 years from the date on which they knew or should have known of the alleged malpractice that killed the deceased plaintiff.
On April 10, 2015, the Third District of Illinois (in the case of Moon v. Rhode, 2015 IL App (3d) 130613) went against 30 years of case law, as well as the decisions multiple Appellate Court districts in Illinois, and held that the date on which a plaintiff knew or should have known of the death of the decedent rather than the date one becomes aware of the malpractice that caused the death is the date by which the 2-year statute of limitations begins to run.
The ramifications of this decision are obvious. Determining whether a cause of action for medical malpractice exists can take an awfully long time. Almost without exception, each medical malpractice case takes a significant amount of money, resources, time, and investigation to even determine if a viable cause of action exists. Indeed, in Illinois, you must have an affidavit from an expert doctor stating that malpractice occurred and caused damages just to file a lawsuit. Discovery of the malpractice is not typically an immediate occurrence. To be sure, that is why the legislature formulated the discovery rule as it pertains to medical malpractice actions. Why the Third District believes that discovery of the malpractice is easier when the plaintiff dies as a result thereof is beyond reason.
Additionally, the logical extension of the Third District’s decision is to obviate the discovery rule even as it pertains to persons who are injured but not killed by a doctor and/or hospital’s negligence. Since there is nothing which differentiates application of the discovery rule to an injury action versus a wrongful death action within the statute, it seems the only time that the discovery rule would apply is where a sponge or other medical tool is left in a person during surgery and a patient does not immediately feel the symptoms associated with the foreign object in his or her body. Furthermore, the statute of repose which further limits the right to bring an action to no more than 4 years after the alleged malpractice would also seem to be swallowed up by the Third District’s interpretation of the statute since there would be no need for such a rule if the 2-year limitations begins to run at injury or death. That cannot be what the legislature anticipated in enacting the discovery rule.
An unfortunate, but logical result of this decision (assuming it is upheld by the Illinois Supreme Court) is that many viable causes of action against doctors and hospitals for negligence will die off without justice being done for the victim and/or the victim’s family simply because the cause of action could not be discovered within 2 years of the victim’s injury or death. Alternatively, many lawsuits may need to be filed immediately and before the parties have had a chance to try and settle the case for fear the applicable limitations period will expire. Neither result furthers justice for medical malpractice victims or even the interests of judicial economy. This is likely a case to be closely scrutinized by the Supreme Court.