In a case of first impression, the Illinois Supreme Court had to reason with the interplay between the ‘relation back’ statute, the medical malpractice statute of repose and the wrongful death act; each statute carrying a different time period of limitation to file certain claims.
In Illinois, the ‘relation back’ doctrine (735 ILCS 5/2-616(b)) allows for amended pleadings to be filed and relate back to the original pleading date if the original pleading was timely and the amendment grew out of the same transaction or occurrence. The statue further provides that “any amended pleading shall not be barred by lapse of time under any statute” as long as the original pleading was timely.
The medical malpractice statute of repose (735 ILCS 5/13-212(a)) in part states that in no event shall an action based on injury or death arising out of patient care against any physician be brought more than 4 years from the date of the occurrence of the act or omission, even if the Plaintiff is not aware of the injury.
The Illinois Supreme Court has explained in Mooney v. City of Chicago, 239 Ill. 414, 423 (1909), that in a wrongful death action the cause of the action is the wrongful act causing the death, not merely the death itself, and that a wrongful death action must be filed within 2 years from the date of death. (740 ILCS 180).
So what happens when the death of a plaintiff, who has timely filed a medical practice action, occurs four years after the alleged medical malpractice, and then amends its medical malpractice action to include a wrongful death count, within the 2 year statue of limitations of the wrongful death act?
The Illinois Supreme Court decided this question in Lawler v. University of Chicago, et al., 2017 IL 120745 on November 30, 2017. The case involved a timely filed medical malpractice action where the alleged malpractice eventually led to the death of the plaintiff, but not until 4 years later after the medical malpractice statue of repose had lapsed. The plaintiff’s representative amended its medical malpractice complaint adding a wrongful death count. The wrongful death count was based on the same alleged conduct as plead in the medical malpractice action. Defendants then filed a motion to dismiss the wrongful death count, arguing that it was filed outside the statute of repose and therefore time barred. Plaintiff argued that the wrongful death count alleged in the amended complaint ‘relates back’ to the conduct originally plead and the original pleading was timely filed. The lower court granted defendant’s motion to dismiss finding that the statute of repose was an absolute bar. The appellate court then reversed the lower court and it was taken up by the Supreme Court.
The Supreme Court, in a rudimentary exercise in statutory interpretation, not surprisingly, ruled in favor of the plaintiff. The court simply relied on the plain language of 735 ILCS 5/2-616(b), the relation back doctrine. The statute states that “any amended pleading shall not be barred by lapse of time under any statute” as long as the original pleading was timely and the conduct arises out of the same transaction and occurrence. All parties agreed that the original complaint was timely filed and that the conduct alleged in the medical malpractice count was the exact same conduct alleged in the wrongful death count. The plain language of the statue is clear. The Supreme Court likely took this case up to quickly eliminate future arguments made by defendants to attempt to avoid liability for wrongful death claims based on malpractice when the death occurs outside the statute of repose.
Would the Supreme Court rule any differently if the wrongful death count was added to a timely filed medical malpractice action outside the medical malpractice statue of repose and the two year statute of limitations provided in the wrongful death act? This ruling certainly suggests it would not, as long as the relation back doctrine was satisfied, but maybe it’s all relative.
The opinion can be found at: https://www.illinoiscourts.gov/Opinions/SupremeCourt/2017/120745.pdf
— Joseph A. Konrad
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