In Moon v. Rhode, 2015 IL App (3d) 130613, the Illinois Appellate Court announced a bright line rule: a wrongful death action against a physician must be brought within two years of the knowledge of the death, regardless of when the executor learned of an allegedly wrongful cause. The Court noted that a wrongful death action is created by statute and therefore must be read as written. The two statutes at issue, the Wrongful Death Act (740 ILCS 180/2) and the statute of limitations for actions against physicians (735 ILCS 5/13-212(a)), both use the date of death as the determinative date for the accrual of a cause of action. Because the Moon case was a medical malpractice case, the specific statute related to claims brought against hospitals or physicians applied rather than the general two-year statute for personal injuries.
The “Discovery Rule” permits plaintiffs to file personal injury actions more than two years after learning of their injury if they did not learn of its wrongful cause until some later date. By mandating that a case accrues only when the plaintiff knows both of the injury and its wrongful cause, the rule permits a plaintiff who reasonably did not know the cause of his injury an extended period to sue. Plaintiffs can prevent the entry of summary judgment by asserting they did not know their injury was wrongfully caused until some period after the injury, causing the defendant to incur substantial expense and trial risk. Many Illinois courts have held that the discovery rule applies to wrongful death suits as well, permitting executors to avoid the statute of limitations by asserting that they did not know of the wrongful cause of the decedent’s passing.
The required knowledge is of the death or injury, not of the negligent conduct.
The Moon Court noted, however, that the Illinois legislature, in creating wrongful death and survival causes of action “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, 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 [sic] occurs first’ . . . [t]he required knowledge is of the death or injury, not of the negligent conduct.”
The opinion is entered over a dissent and conflicts with Young v. McKiegue, 310 Ill.App.3d 380 (1999) and Wells v. Travis, 284 Ill.App.3d 282 (1996). Hopefully, the Illinois Supreme Court will have the opportunity to resolve the split and author an opinion that applies to all Wrongful Death Act cases, regardless of whether the suit is filed against a physician.