Moon v. Rhode

• Decision Date: 10 April 2015
• Docket Number: No. 3–13–0613.,3–13–0613.
• Parties: Randall W. MOON, Executor of the Estate of Kathryn Moon, Deceased, Plaintiff–Appellant, v. Clarissa F. RHODE, M.D., and Central Illinois Radiological Associates, Ltd., Defendants–Appellees.
• Court: United States Appellate Court of Illinois

34 N.E.3d 1052

Randall W. MOON, Executor of the Estate of Kathryn Moon, Deceased, Plaintiff–Appellant

v.Clarissa F. RHODE, M.D., and Central Illinois Radiological Associates, Ltd., Defendants–Appellees.

No. 3–13–0613.

Appellate Court of Illinois, Third District.

April 10, 2015.

Modified Upon Denial of Rehearing June 15, 2015.

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

OPINION

Justice SCHMIDT delivered the judgment of the court, with 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.”

¶ 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 anastomsis, 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 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.”

¶ 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, 189 Ill.Dec. 31, 619 N.E.2d 732 (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, 363 Ill.Dec. 376, 975 N.E.2d 178 (citing People v. Vincent, 226 Ill.2d 1, 14, 312 Ill.Dec. 617, 871 N.E.2d 17 (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, 236 Ill.Dec. 907, 708 N.E.2d 493 (1999), and Wells v. Travis, 284 Ill.App.3d 282, 219 Ill.Dec. 936, 672 N.E.2d 789 (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 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, 236 Ill.Dec. 907, 708 N.E.2d 493 ; Wells, 284 Ill.App.3d at 286–87, 219 Ill.Dec. 936, 672 N.E.2d 789. 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, 137 Ill.Dec. 623, 546 N.E.2d 568 (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, 52 Ill.Dec. 6, 421 N.E.2d 869 (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, 52 Ill.Dec. 6, 421 N.E.2d 869. 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...