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Illinois Extends Potential Statute of Limitations in Wrongful Death and Survival Act Claims

In a recent case, a 90-year-old woman was admitted to a hospital in 2009. During her stay at the hospital, the woman suffered several complications, and she died within weeks of her arrival. The woman’s son requested her medical records, and he received them almost one year after her death. A little over one year after receiving the records, the son obtained a professional opinion that the woman’s doctors were negligent in treating her. One month after obtaining that opinion, the son filed a complaint against his mother’s two doctors, who cared for her during her hospital stay.

Almost two years after filing the initial lawsuit, the son had a doctor review his mother’s CT scans that were taken during her stay at the hospital. The son had received this information when he requested his mother’s original medical files. The doctor provided an opinion stating that the radiologist, who had read the CT scans while his mother was staying at the hospital, had failed to identify a collection of fluid in her brain. The reviewing doctor also believed that the radiologist’s failure to identify the fluid caused or contributed to the mother’s death. After receiving the second opinion, the son filed a medical malpractice lawsuit against the radiologist under Illinois’ Wrongful Death Act (740 ILCS 180/1) and Survival Act (755 ILCS 5/27-6).

The radiologist argued that the case was time-barred because the case was filed more than two years after the mother’s death, exceeding the two-year statute of limitations. The radiologist also argued that the “discovery rule” did not apply in the son’s wrongful death and survival act case. The radiologist also claimed that even if the discovery rule applied, the case was still untimely because the son had enough information to determine whether or not to file more than two years before he filed his complaint.

The Illinois Supreme Court found that the discovery rule did apply in the son’s wrongful death and survival action case. Thus, the two-year statute of limitations began to run when the son knew or reasonably should have known that the injury was wrongfully caused. However, the court did not decide at which point the statute of limitations began to run in this case, and it sent the case back to the trial court to determine when the statute of limitations began to run.

Illinois’ “Discovery Rule” in Medical Malpractice Claims

Illinois’ discovery rule allows an individual to bring a claim beyond the normal two-year statute of limitations allowed for medical malpractice claims. In general, the discovery rule permits a plaintiff to extend the filing period until the time he knew or should have known he was able to sue. That is, the limitations period begins not when the plaintiff knows about the injury but instead when the plaintiff reasonably discovers that the defendant’s negligence may have caused or contributed to the injury.

Do You Have a Medical Malpractice Claim?

If you or a loved one has been injured and you believe a doctor, nurse, or other medical professional may have caused or contributed to the injury, you may be able to file a medical malpractice claim. You have a limited time window within which to bring a medical malpractice claim. However, even if you think the statute of limitations has run, it may be extended based on the circumstances of your case. The Chicago attorneys at Moll Law Group can advise people who have suffered from malpractice, including a surgical error or a misdiagnosis. Call us at 312-462-1700 or contact us through our online form to set up a free initial consultation.

See More Posts:

State Court Adopts Continuing Course of Treatment Doctrine, Potentially Extending Statute of Limitations in Some Medical Malpractice Cases, Illinois Injury Lawyer Blog, October 5, 2016.

Defendant Allowed to Reopen Case After Filing Response Seven Months Late, Illinois Injury Lawyer Blog, September 16, 2016.

Court Determines that Land Surveyors Are Considered “Professionals” for Negligence Claims, Illinois Injury Lawyer Blog, September 30, 2016.

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