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Time Limits on Wrongful Death Claims and Medical Malpractice

Casey Woodruff

pocket watchIf a person dies as a result of a medical malpractice injury, how long does the personal representative of the deceased’s estate have to file a claim? Generally speaking, the Illinois Wrongful Death Act (740 ILCS 180/) requires a case to be brought within two years of death. But a recent case in the Illinois Appellate Court questioned whether that timeline could be extended in medical malpractice cases where the wrongful cause of death was discovered at a later date than knowledge of the death itself.

In short, the case, Moon v. Rhode, made clear that a personal representative has only the two-year timetable following the deceased’s death, regardless of when that personal representative learns that medical negligence allegedly caused the death. Let’s take a closer look at how this case may impact wrongful death claims brought as a result of medical malpractice.

Medical Malpractice Filing Timetables

The recent case involved the statutes of limitations set forth by the Illinois Wrongful Death Act and the statute under that, which provides the statute of limitations for an injured patient to file a lawsuit against a physician (735 ILCS 5/13-212(a)). When we look at the two statutes, there seems to be a conflict in the statutes of limitations.

In the statutory language concerning lawsuits against a negligent physician, an injured patient has two years to file a lawsuit, but that clock may begin ticking at the time the patient learns that the injury may have resulted from medical malpractice. In other words, there’s a general notion that, if a patient suffers an injury in 2010 but doesn’t discover that she may have been a victim of medical negligence until 2015, she may still file a claim.

That language seemed to be in conflict with the statute of limitations in the Illinois Wrongful Death Act. However, the Appellate Court made clear in Moon v. Rhode that the timetable in the Wrongful Death Act is a strict one. Let’s take a look at the facts of the case.

Facts of Moon and Its Implications

In 2009, the plaintiff’s mother was admitted to the hospital and shortly thereafter underwent a surgery. During her stay in the hospital, the plaintiff’s mother “experienced numerous complications,” and eventually she died. In 2010, the plaintiff received his mother’s medical records. By February 2013—nearly four years after the decedent’s death—the plaintiff sent the decedent’s medical records to an expert, who provided “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.” The expert also indicated that “the radiologist’s failure to properly identify the findings caused or contributed to the injury and death of the patient.”

In other words, the plaintiff didn’t learn that his mother’s death could have resulted from medical negligence until nearly four years after her death. However, he was in possession of her medical records within a year of her death, and he could have reasonably discovered that her death was the result of negligent conduct, the court suggested.

Specifically, the court concluded that Illinois lawmakers “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 . . . of the existence of the injury or death for which damages are sought in the action.” The court emphasized that “the required knowledge is of the death or injury, not of the negligent conduct.” As such, “the plain language of the [Wrongful Death] Act required the plaintiff to file a wrongful death claim within two years of the date on which plaintiff knew of the death.”

Contact an Aurora Wrongful Death Lawyer

The court noted that its decision creates a split among lower courts, and we may need to wait for an Illinois Supreme Court decision on the issue. In the meantime, if you have questions about filing a wrongful death lawsuit for medical malpractice or other negligent behavior, it’s important to contact an experienced Aurora wrongful death attorney as soon as possible. The wrongful death lawyers at Woodruff Johnson & Evans can assist with your case.

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