Medical Malpractice Claim Brought Under The Wrongful Death Act Can Relate Back To Existing Claim And Is Not Barred By Statute Of Repose
The Illinois Supreme Court holds that a medical malpractice claim brought under the Wrongful Death Act, 740 ILCS 180/0.01 et seq., can relate back to an existing claim and is not barred by the statute of repose. Lawler v. The University of Chicago Medical Center, 2017 IL 120745.
On August 4, 2011, Prusak filed a medical malpractice claim against Defendants, alleging that Defendants failed to diagnose her macular pathology (an injury she allegedly discovered on August 7, 2009) leading Defendants to fail to recognize Prusak’s lymphoma. Prusak died on November 24, 2013. As the executor of Prusak’s estate, Prusak’s daughter (“Lawler”) substituted as Plaintiff. On April 11, 2014, Lawler filed an amended complaint adding a wrongful death claim. Defendants moved to dismiss the wrongful death claim as barred by the four-year statute of repose applicable to medical negligence cases, 735 ILCS 5/13-212(a). The circuit court granted the motion to dismiss, finding that the wrongful death claim was a new action and did not relate back to the original claims.
The Illinois Appellate Court reversed. It concluded that the wrongful death claim arose out of the same occurrence set forth in the original pleading, and that Defendants had notice of the underlying medical malpractice claims in a timely-filed complaint. Therefore, the Appellate Court held, Defendants would not be prejudiced by claims filed after the expiration of the statute of repose. The relation-back doctrine saved the wrongful death claim, which otherwise would be time-barred.
The Illinois Supreme Court granted leave to appeal and affirmed in a unanimous opinion authored by Justice Freeman. The Court examined the Wrongful Death Act, the medical malpractice statute of repose, and the relation back statute in its Opinion.
Wrongful Death Act
A wrongful death action allows the decedent’s next of kin to recover damages for their own loss based on the wrongful actions of another. The cause of action accrues when the death occurs. In a wrongful death action “the cause of action is the wrongful act, neglect or default causing death, and not merely the death itself.” A wrongful death action must be commenced within two years after the death. 740 ILCS 180/2 (West 2010).
Medical Malpractice Statute of Repose
The medical malpractice statute of repose (735 ILCS 5/13-212(a)) provides that actions based on medical malpractice are subject to a four-year statute of repose triggered by the occurrence of the act or omission that caused the injury:
Except as provided in Section 13-215 of this Act, no action for damages for injury or death against any physician . . . 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, but in no event shall such action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death.” 735 ILCS 5/13- 212(a) (West 2010).
The only exception expressly noted by the statutory language is fraudulent concealment, which is not at issue here. The repose period was enacted by the legislature to curtail the “long tail” of exposure to medical malpractice claims as a result of the 2-year discovery rule by placing an outer time limit within which a malpractice action must be commenced.
Relation Back Statute
The relation back statute permits an amended pleading to relate back to the date of the original pleading such that “[t]he cause of action . . . set up in any amended pleading shall not be barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted” where two conditions are met: (1) the original pleading was timely, and (2) the amendment grew out of the same transaction or occurrence set up in the original pleading. 735 ILCS 5/2- 616(b) (West 2010).
The Court then considered, as a matter of first impression, Defendants’ contention that the relation back statute does not apply where decedent’s death occurred more than four years after the alleged medical negligence. Defendants maintained that Plaintiff’s wrongful death cause of action was “extinguished” by the statute of repose in August 2013— before it accrued in November 2013—and the relation back statute cannot “preserve” it.
If Plaintiff had filed an original complaint alleging a wrongful death cause of action in November 2013, it would have been barred by the statute of repose. 735 ILCS 5/13-212(a) (West 2010). However, the relation back statute provides that amendments to a complaint “shall not be barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted, if the time prescribed or limited had not expired when the original pleading was filed.” 735 ILCS 5/2-616(b) (West 2010). The parties do not dispute that Plaintiff’s original complaint was timely filed and the amendment clearly grew out of the same transaction or occurrence as alleged in the original complaint. Thus, the Court found that Plaintiff satisfied the two requirements in the relation back statute, and it applies to her wrongful death claim. Pursuant to the statute, the claim is not time-barred even though it accrued after the statute of repose period expired and it can be added by amendment to Plaintiff’s pending complaint in accordance with the relation back statute. The Court found support for its holding in two out-of-state decisions: Sisson v. Lhowe, 954 N.E.2d 1115 (Mass. 2011), and Wesley Chapel Foot & Ankle Center, LLC v. Johnson, 650 S.E.2d 387 (Ga. Ct. App. 2007).
The Court rejected Defendants’ contention that the statute of repose “extinguishes” a wrongful death claim such that the relation back statute cannot apply, and that the appellate court’s ruling here enabled the plaintiff to “preserve” its wrongful death claim until the claim accrued, in contravention of the Court’s holding in Evanston Insurance Co. v. Riseborough, 2014 IL 114271. The Court explained that the legal fiction that the relation back statute considers the claim brought as of the date of the original complaint does not run afoul of the Court’s holding in Evanston Insurance Co.—which did not involve an amendment to a pending complaint—because the legislature chose to preclude claims from being time-barred in very limited situations such as here, where, if an amendment related back to the timely filed original complaint, it would not be “barred by lapse of time under any statute or contract prescribing or limiting the time within which an action may be brought or right asserted.” 735 ILCS 5/2-616(b) (West 2010). This legal fiction of the amendment relating back to the date of filing allows the statute to function as the legislature intended; it does not mean that an amendment can add a claim that has not yet accrued.