plaintiff has knowledge of the death long that the statute of limitations begins to run without regard to whether the plaintiff also has reason to know that the injury may have been caused by wrongful act the majority held that because of the historic origins of wrongful death and survival and cases the limitations act must be read to provide that the statue of limitations begins to run upon the acquisition only of the knowledge of death without any regard to the the limitation act applies fully to wrongful death and survival actions just as it does to any other action for medical malpractise the defendants never argued the primary ground upon which the majority ruled either in the circuit or the appellate court rather defendants argued that under all the facts as of the moment of death plaintiff had sufficient knowledge that the statute began to ram run so that there was no factual reason to apply the discovery rule or that if the discovery rule were to be applied that the limitations period began to run more than two years after some unspecified dig and in fact the defendants set out properly the operation of the discovery rule in their documents now we don't fault the defendants for not making that argument thirty seven years of appellate through already in favor of the operation of the rule in these cases and strong dicta from this court to the same effect would give any lawyer strong reason to pause before ever making that argument the first time that it was known in this case that the discovery rule would not be applied was upon the issuance of the appellate opinion play a filed a petition for rehearing which was denied the court said the plaintiff had a duty to have written about the legal availability of the discovery and that it knew that it was creating the court that it was creating a split in authority and said that it expected to hear from this court at some point in time there is one clear starting point for the analysis of this issue and that section thirteen days to one to a which is the limitations act it states that causes of action for injury or death cannot be brought more than two years quote after the date on which the claimant knew or through the use of reasonable diligence should have known of the existence of the injury or death for which soft like rome all of the analytical roads lead to that statute more to the point any analytical road will start from that statute the wrongful death act itself contain this court has the benefit of not needing to start with the barents like there's a great deal of rich precedent which has already been brought to bear on the relevant wording of the statute the words stating the applicability of the act and the knowledge required refer to quote the injury or death this court has already interpreted the meaning of the word injury in that exact phrase to me that it includes knowledge of wrongful causation which is what was stated the there is as i've referred to rich precedent saying that it is the limitations act which applies and i believe that the rationale of the two cases i just mentioned durham and yun are to the effect that the limitations act which says that it applies to medical malpractise cases is the more specific act and therefore it controls over the wrongful death act and secondly it is the later passed act and therefore under a separate canada of statutory interpretation of what he said that was if that was the case mr reagan there were in fact the defendants they threw was recently just lesion concerning the wrongful death act introduced to the only house you're aware that legislation right right and it would have provided that an action for damages under the act again a quote shall be commenced within two years after the discovery of evidence indicating that a wrongful death may have occurred which the language would seem to indicate your position that if their legislation had passed certainly the discovery rule would apply but why would the legislature have considered such language if the discovery rule already applied to a wrongful death  the most efficient answer i can give you is first of all i can't guess as to what the legislature might be thinking at some point the future but it hasn't passed and you know the law is the proposed legislation or on second issue which i intend to talk about but i'll address your question right now which is that yes it's a it's a factual circumstance but this course is said recently in logan square and many times before that in many if not most cases that this is going to be a question of fact i want to own a reasonable basis as to when the person is put on notice the plaintiff is put on notice reasonable no to know when they should have knowledge that there might have been wrongful causation and that mere suspicion is not enough so the mere fact of gathering records with respect is not addressed that question of permitting a trier of fact to determine whether there was reasonable grounds to think that there might have been might have been false so yes it's relevant but it is a fact there are many facts and that was the that should've been left for the court accepted the defendant's primary argument and i can say with great certainty from the record that the trial court's primary argument or primary conclusion was that as of the moment of death the mr moon had sufficient knowledge to think that there might have been wrongful causation he was put on notice and therefore he had two years from the moment of death not because the discovery rule was not applicable but rather because the court said i think he had enough information so at the moment of death what information did he have and scuse me the they focus on one question and one answer from mr moon's deposition in which he was asked that mr moon was said look at some point in time you're go have to tell the jury how the death of your mother of fact that you and he said that she was doing pretty well i thought and i wish that she had gotten better treatment period end of question no end of answer and no more questions so he was asked how did the mother's death affect you and he said that but the defendant's tell you in their brief here that that's reasonable belief that there was negligence and that's not so little and so we cited the young case which says that a mere suspicion is insufficient without also looking at what the underlying reasons for the suspicion for and that's never been done here so that the back your question the trial judge his focus look to your son the time of death and then he said in the paragraph and i don't fault him for that but he said that even if we were trying to fix a date in past that time that the time would have long expired and he did not say what the precipitating event would have been he did not say what that time would have been he just says it's too long and that is largely with the appellate court did as well with that issue and i mean i'll just jump to that rule that the time he last and they did in the court didn't the majority did not specify a time it the discovery rule talks about when does the statute of limitations begin to run that stash until you know about dr ro to the defendant in this case we're going to start it when you had knowledge of any potential wrongdoing in the form of an expert he didn't say only an expert but he does cite cases accurately which we've reproduced in the brief saying that that's one circumstance that the trier of fact can determine the when you get an expert's report you can look to that it's not the only determinant but it's one and then so when that report was received within two long can they wait before seeking some type of consultation to indicate that there was a wrong committed there is no bright line for that the answer is to be found in only one day one day relative wakes up and say you know i think something may have gone wrong and it's four years later so they've told the statute for four years and now they get to know they now they get a consultation that indicates that no practice may have been committed so they get four years and they get another two years like so much of the law it is a question of fact to be determined on an object of reasonable basis by the trier of fact i mean our entire system is based upon somebody other than the court deciding facts in most circumstances unless the facts are so absolutely abundantly clear what about the facts of his case i don't i don't think that's the case because mr moon was focused on the the case as to the surgeons ok not the doctor wrote he was a radiologist and he was working on that when review was catherine see it shortly prior to that time yes i don't know exactly when that inquiry was made but surely part of that time so i mean i know these are factual questions but they there was a wait of a year after receiving catherine's medical right when they received catherine's medical records that took a year and then three years after that there was a review of a c t scans not three years so the requested record request for the records was type of bright line rule as to how long they have to pursue because it apparently that does told the statute right yes i am asking this court to recognize that this period the standard of review was to know all well pleaded facts must be taken as true all reasonable inferences must be drawn in our favor and all documents must be interpreted in favor of the plaintiff the nonviolent and twelve and this is the language of the statute that determines when the case must be brought and basically the language is pretty clear that there is a two year period from the data which the claimant knew or through the use of reasonable diligence should have known of the injury or death and as you've indicated this court is looked at in the weather all case has looked at the word injury and determined that that meaning of that word includes an idea of not only an event taking place but that it was wrongfully cost yes and since you the question here is we have another word that has not been addressed by this court in this statute that is right which is death and so you're asking us the larger idea of what is the nature of this case this case is brought obviously the woman died she's not bringing the case about her or her injury rather this is under statute the wrongful death statute and we understand that when there  statutes written by the legislature that we're going to be looking at them very narrowly strictly and to the language that they use so you really asking this court to read into the statute i just read some language that's not there how do we do that were discovery rules largely a matter of it is statutory interpretation and it starts off within rosny versus marnell interpret ing the word accrued to include the concept of causation and so the court did the same thing with respect to injury in with and it is i think there is an absolute bright shining last light you will stream the path the death should be interpreted in the same way but if you ask us to do this and we look at the only the statute were interpreted in but other statutes using the same language what about the wrongful death fact and you've alluded to the for rick i believe that you said thirteen to twelve is the more specific why wouldn't wrongful death which is what we're dealing with been addressed by the case law that you know not by your honour's to the effect that the more specific act the later act of the limitations act is what controls and so much good morning your honour's may it please the court karen to grand on behalf of the defendants dr wrote in your group your honors our position is simple and it is that the legislature provided seven hundred  thirty days for an estate administrator to investigate and file a medical malpractise a action for a wrongful death claim and the undisputed facts of this case that was ample time  at the language of section thirteen dash to one to the legislative intent we submit should be discerned from the plain language and there hasn't been an argument offered by the plaintiff in this case that there is an ambiguity there is simply an argument that the case law that has interpreted the word injury necessarily should control the language that's in the statute that pertains to death and it is different and this in this court's precedent establishes that it's different under the wrongful death act which we believe counsel says thirteen to one two controls the wrongful death act obviously is also relevant because it's the basis for the cause of action in the first instance and wouldn't be a cause of action under the medical malpractise case unless the wrongful death act  common law provided that cause of action but it's our position that these two stand shoes can be read harmoniously which makes sense and furthers the the legislator  rather the statutory construction that the court would undertake it's interesting to hear the into read in the plainest brief the references to the concept of a cruel of a cause of action but the wrongful death act the statute or the time with that's provided in the wrongful death act doesn't refer to a cruel of a cause of action the very plain language is simply that every such action e senate now is addressing the revised version of mali's law it has it already it passed the house so the senate is advised for addressing that legislation this very month and i certainly give some information that i think that is relevant which is number one that there is no discovery rule that's in the current version of the wrongful death act other than in a very limited situation doesn't apply here and that the legislature knows how to amend that act and how to use the out language when it wishes to do so yes right or any mechanism that would toll the running of the statute when there was an indication some point after the death you know most two years after the death were they would find out that the death was wrongfully caused any mechanism at all or is just foreclose period your honor there is a understood and or section thirteen two one two and i think this this somewhat gets gets the heart of the  overall scheme which makes sense in my opinion but under section thirteen dash two one two even under the application of the discovery rule the limited discovery rule that's written into it as now there's still would be the opportunity for a post two year post two years of discovery the death action to be brought in the event of fraudulent concealment and there also would be an opportunity to bring also have discussed their case but in weather all it was the action and it was a medical malpractise injury action not a mental medical malpractise wrongful death action the action against the physicians in that  deterred her from discovering the cause of action so and i believe this court's decision and maggie recognizes that possibility of both equitable stoppel or the fraudulent concealment statu and that also was recognized by the first district when it released its decision and granik that fraudulent concealment would be a possible exception or potential exception we know that we know from the language of the statute that injury which is the language directly from the statute and the court goes on to say and also no reason he should have known that it was wrongfully caused and then the court does add in this idea of a discovery roll into the plain language of the statute that says injury i mean the idea of course is that the it is that someone could have an event occur and not being a doctor not understanding that it was wrongfully cause it might take some time reads in this language the statute as to injury correct it does your honor so what is it why shouldn't the same analysis it's being used in the case that was many many many years ago why should we use the a wrongful death action and in the instance of a wrongful death action which is an derogation of the common law it's incumbent on the court to strictly construe the statute and to follow the wording in the statute but as a more overarching response to your question in reading all of the cases that the parties have cited in the briefs that were submitted to the court and including the the weather all case there is a theme and a recognition that the more obvious the injury the easier it is to determine wrongful cause and i think that's i think that's and interesting component of all of this and i think also thinking about the cases in which the discovery rule comes into play in a medical malpractise a action i mean just generally speaking the kinds of cases they are involved are delayed typical malpractise situations in which the discovery rule comes into play but in the instance of a death there's no delayed manifestation the death is the death and the injury is obvious and i and that to me gives some some rhyme or reason to make to distinguishing between injury and death in addition to the plain language of the statute and that's how that that that in my view is a fairly clear indication from the case law and and this goes this is a theme running through through all the case and it's not just one mention in where the rule is and clarke it's in hofmann it's in barry it's in so on and so on many of the cases from the appellate court as well as as from this court and there's certainly can't be a condition that's more obvious than death and unless we have a situation where there is a fraudulent concealment you have a exception there or there is an equitable establish you another potential accession to yours is going to be ample time the legislature has told us and the other the other issue that should be part of the backdrop of all this is the protection that the legislature has determined should be given to medical malpractise defendants and this is this is something that's been recognised in the decisions of this court starting perhaps before but certainly anderson certainly maggo certainly the eldritch case and this court has recognized that they at has been what the legislature is telling the court when it and the acts thirteen two one two and that needs to be part of this analysis because after all we're looking at and again trying to harmoniously look at these stay at you it's thirteen to one two and the wrongful death act are we are we saying that there is going to be less protection for doctors under thirteen to one too there's going to be under the wrongful death they act which clearly says no actions more can be brought more than two years after the death i don't think that possibly could be the have been the intention of the legislature  again lipsey is another case that squares with that analysis of of the injury your honor being whether the concern of the court and let's see was whether the plaintiff even had an opportunity to discover the cause of action and in that case because of because the plaintiff because of the mistake no says basically the plaintiff didn't even know she had an injury until more than three years after the negligence and in the act case the court came to the conclusion it did because the the does the not only the wrongful cause couldn't be discovered but the injury itself couldn't be discovered and they had steps a different situation seemed to me that it reached that conclusion by essentially turning away from the plain language of the statute and in doing so we submit the court did not properly interpret the statute the second district legislative acquiescence in other words this line of thinking has been out there for thirty years and the legislature has not amended the statute at this point to for example make clear that they don't want to discover should we take that into consideration of the lives that your has an act i don't believe that's appropriate in this case your honor given the plain language of the statute given the fact that this court has not had the opportunity until this case to construe the statute and given the fact that you know the acquiescence would be to the conflicting body of case although there's  b sided i'll certainly acknowledge they had on one side but we have grenache and then we have the street you know of cases which it seems to me fairly apparently was disregarding the plain language of the statute and then moving forward on the probably should not be given much if any w i'll move on to the second issue if i may if the court has no further questions on the first issue with mr graham let me back up and ask you a question on the the suit is filed in two thousand and thirteen the instant case it's predicated on medical malpractise correct that's correct your honor and the pleadings that were filed that began the case included i forget what the numbers are the code a medical report yes to sixty two would there be any way to bring this case without a medical record your out of the case could be filed without a medical report and an extension sought under two sixty two and that's another provision that the legislature has provided and what sounds to me to be a bright line rule in a medical malpractise action that the action that the discovery of the action occurs when a medical report is received i mean it's that should be one of many factors that's considered and it seems to me that from paragraph fifty eight of the disc of the opinion where the dissenting justice  observed that the statute of limitations begins to run when the plaintiff receives a report from a medical expert finding negligence against and a medical professional who treated the decision that sounds to me like a bright line rule and i don't think that's appropriate and i don't think it's appropriate and inappropriate deciding factor in the facts of this case what sets this case apart and what i think fully supports the  his mother's condition and of the circumstances surrounding her hospitalization as executor of the estate appointed two weeks after the death and as an illinois licensed attorney with personal injury experience the undisputed facts show that the that ms moon was doing ok healthwise although she was advanced in years she then was hospitalized with abdominal problems and per the plainest deposition the four adult way it certainly wasn't just that one question an answer that was asserted in this court in the lower courts to establish what we believe is as a matter of law a discovery of the cause of action it was all of these circumstances and all of the circumstances should govern they had inquiry and it seems to be that as a matter of law all of the circumstances point to the conclusion that there was not a legit wrongful cause and we did it actually in our brief take a position on when that trigger was and it was in february of two thousand and ten when the medical records were requested at the time by the plaintiff plaintiff the problem that we have with the dissents articulation is that it seems to be a bright line rule and it asks it essentially establishes that discovery of the negligence said his discovery of the cause of action is what triggers the stanch limitations and that's contrary to this court's decisions and knox and nolan is not discovery of the of the cause of action is not knowing that there is negligence it's knowledge knowledge of the injury and that it was wrongfully caused in those there is a distinction drawing be those two concepts in this court's well established case on the discovery rule and it's our position that they have to synch and should be maintained thank you your honor sank you with with all due respect to my great friend mr grant that was a straw man we are not we've never said there was a bright line we've never said we there the statute does not begin running until there is  knowledge complete knowledge of negligence with rather than it is a mix of all the facts and in normal in which we've set out in our brief the question is suggestion i mean a reasonable suggestion reasonable possibility that there may have been wrongdoing and there is nothing to support the proposition that merely getting medical records is evidence of that nolan test that you have reason to believe that there was  wrongdoing legislative a legislative acquiescence should be applied here it is only one tool we've talked about how the fact the court has referred to it as a weak read but in referring to it as a weak read it was applied so it has application for whatever it might be worth and in re marriage and mathis within the last year or two the last few years i can remember the exact year this court has applied legislative acquiescence even when the case law was not mo  noting that it was overwhelming and that's what we have here they were there is one case green oc to the contrary there are many cases in our favor and so it applies if back to the with all due apologies to justice thomas back to justice tice's question about the how this is to be interpreted whether how death is to be interpreted relative to injury if you do not read causation into death  as with a rule in so many other cases read causation in the injury then you will be started on an irretrievable path of undoing where the will because if it doesn't appl death and it doesn't apply to injury and with the rules so long ago was wrong you'll have to do undo rosny versus martial which is the first essentially of it was the first case for the discovery rule in illinois because the word there was a cruise and yet to involve judicial interpretation of the statute you will have to do the seven or so cases under seven or so cases decided since eighty eight starting with fewer which great extent analyze this and say that the causation should be read into it and what will be put in jeopardy is all discovery rule cases because the discovery rule in illinois although it was first introduced by statute involving the limited instance of foreign bodies left in after surgery has been a case a case in situation  danger though that we would be seen all wrong for that case it's two years except that a call now practice case well that question as to the interpretation of wrongful death fact titled one case at a time and so that's the case that we have here today which is not allow practice act and the court can take that up in a different in a different case so yes that that tension would exist but we governs here and and again the outset of the defendant's brief says that's what governments and the majority opinions says that's what governs and so there's a lot of unpacking that would have to be done to say ok we're going back to that now on this question of strict interpretation we cited the supreme court of the united states in van back and i pointed out the brief  how this court a long time ago relied on van beck in their justice cardozo quoting holmes said that a subsequent statute in that case involving wrongful death death there what we're doing here is interpret ing recent action from our legislature with the wrongful death act and that's the task before the court as i see it and as to whether the thirteen dash to one two applies which is what comes from just occur myron and justice carmen's questions or whether it's two zero two i would offer as my proxies again durham and young i don't have time to repeat the entire analysis but they say they address that o such an obvious fact that death alone puts you at knowledge of who gives you knowledge that you better start looking at something and a moment's  reflection i think says that that can't quite be true but i don't have to rely upon a moment's reflections i rely upon this court's opinion and why ness in one thousand nine hundred nine and this court said addressing this very issue that it is in all probability it has been with the universality of death so with that moment of reflection we can recognize everybody dies there's always death and is death alone sufficient to put you on notice that there might be wrongful causation of course not so minus says that in with the universality of death in mind the courts have applied the discovery rule to cases where a death that occurred sometime prior to the discovery is wrongfully cause nature the delay of the running of the limitation period accepted by the appellate courts in some districts and we're talking exactly about the cases that are here today fewer and it's line assures that a wrongful death action may be filed after death when plane is finally know where reasonably should know the wrongfully caused injury which led to death in the last sentence if you would indulge me is that many wrongful death cases have emphasized this discovery time and so that language from winehouse is strong dicta from this court