2015 IL App (3d) 130613

Opinion filed April 10, 2015 

_____________________________________________________________________________ 

IN THE

APPELLATE COURT OF ILLINOIS

THIRD DISTRICT

A.D., 2015 

RANDALL W. MOON, Executor of the )

Estate of Kathryn Moon, Deceased, ) 

 ) 

 Plaintiff-Appellant, ) 

 ) 

 v. ) 

 ) 

CLARISSA F. RHODE, M.D., and CENTRAL ) 

ILLINOIS RADIOLOGICAL ASSOCIATES, ) 

LTD., ) 

 ) 

 Defendants-Appellees. )

Appeal from the Circuit Court

of the 10th Judicial Circuit, 

Peoria County, Illinois, 

Appeal No. 3-13-0613 

Circuit No. 13-L-69 

Honorable Richard D. McCoy 

Judge, Presiding.

_____________________________________________________________________________

JUSTICE SCHMIDT delivered the judgment of the court, with opinion. 

Presiding Justice McDade concurred in the judgment and opinion. 

 Justice Lytton dissented, with opinion.

 OPINION

¶ 1 Over three years after his mother Kathryn Moon’s death, plaintiff, Randall Moon, as 

executor, filed a wrongful death and survival action against defendants, Dr. Clarissa Rhode and 

Central Illinois Radiological Associates, Ltd. Defendants filed a motion to dismiss plaintiff’s 

complaint, alleging that the complaint was untimely. The trial court granted defendants’ motion. 

¶ 2 Plaintiff appeals, arguing that the trial court erred in granting defendants’ motion. 

Specifically, plaintiff contends that the discovery rule applied and that the statute of limitations 
2 

did not begin to run until the date on which he knew or reasonably should have known of 

defendants’ negligent conduct. 

¶ 3 BACKGROUND

¶ 4 Ninety-year-old Kathryn Moon was admitted to Proctor Hospital on May 18, 2009. Two 

days later, Dr. Jeffery Williamson performed surgery on Kathryn. Williamson attended to 

Kathryn from May 20 through May 23, 2009. Kathryn was under Dr. Jayaraji Salimath’s care 

from May 23 through May 28, 2009. She died on May 29, 2009. 

¶ 5 During Kathryn’s hospitalization, she experienced numerous complications, including 

labored breathing, pain, fluid overload, pulmonary infiltrates, and pneumo-peritoneum. Pursuant 

to Dr. Salimath’s order, Kathryn underwent CT scans on May 23 and May 24, 2009. Dr. 

Clarissa Rhode, a radiologist, read and interpreted the two CT scans. 

¶ 6 The court appointed plaintiff, an attorney, as executor of Kathryn’s estate in June of 

2009. Eight months later, in February 2010, plaintiff executed a Health Insurance Portability and 

Accountability Act (HIPAA) (42 U.S.C. § 201 (2006)) authorization to obtain Kathryn’s medical 

records from Proctor Hospital. Plaintiff received the records in March of 2010. In April of 

2011, 14 months after receiving the records, plaintiff contacted a medical consulting firm to 

review Kathryn’s medical records. At the end of April 2011, plaintiff received a verbal report 

from Dr. Roderick Boyd, stating that Williamson and Salimath were negligent in treating 

Kathryn. On May 1, 2011, plaintiff received a written report from Boyd setting forth his specific 

findings of negligence against Williamson and Salimath.

¶ 7 On May 10, 2011, plaintiff filed a separate medical negligence action against Drs.

Williamson and Salimath. On March 8, 2012, plaintiff testified at his deposition that “even 
3 

though [my mother] was fairly old, my impression was that she was doing okay and that, you 

know, she should have gotten better treatment than she did.” 

¶ 8 In February of 2013, almost four years after decedent’s death and almost three years after 

receipt of her medical records, plaintiff sent radiographs to Dr. Abraham Dachman for review. 

On February 28, 2013, Dachman reviewed the May 24, 2009, CT scan. Dachman provided 

plaintiff with a report stating that the radiologist who read and interpreted the CT scan failed to 

identify the breakdown of the anastomsis, which a “reasonably, well-qualified radiologist and 

physician would have identified.” Dachman further stated that the radiologist’s failure to 

properly identify the findings caused or contributed to the injury and death of the patient. On 

March 18, 2013, plaintiff filed both wrongful death and survival claims against Dr. Rhode and 

her employer, Central Illinois Radiological Associates, Ltd. Plaintiff alleged that he did not 

discover that Rhode was negligent until Dachman reviewed the CT scan.

¶ 9 Defendants filed a motion to dismiss pursuant to section 2-619(a)(5) of the Code of Civil 

Procedure (the Code) (735 ILCS 5/2-619(a)(5) (West 2010)), arguing that the two-year statutes 

of limitations for both wrongful death and survival actions had expired. Alternatively, 

defendants argued that even if the discovery rule applied, the record affirmatively showed that 

the complaint was nevertheless untimely filed. The trial court granted defendants’ motion to 

dismiss and found that the date of Kathryn’s death was the “date from which the two-year statute 

should be measured.” The court furthered stated that “even if we give everybody the benefit of 

the doubt and try to fix a date at which a reasonable person was placed on inquiry as to whether 

there was malpractice, even that was long gone by the time the complaint was filed.”

¶ 10 Plaintiff appeals. We affirm.

¶ 11 ANALYSIS
4 

¶ 12 Plaintiff argues that the trial court erred in granting defendants’ motion to dismiss. The 

discovery rule, says plaintiff, allowed him to file his complaint within two years from the time he 

knew or should have known of the negligent conduct. Defendants argue that the discovery rule 

does not apply and plaintiff had to file his complaint within two years from Kathryn’s death. 

Alternatively, defendants argue that even if the discovery rule applied, the record affirmatively 

showed that plaintiff filed the complaint more than two years after a reasonable person knew or 

should have known of the alleged negligent conduct. 

¶ 13 We review de novo the trial court’s order granting a motion to dismiss. Kedzie & 103rd 

Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116 (1993). Under the de novo standard, our 

review is independent of the trial court’s determination; we need not defer to the trial court’s 

judgment or reasoning. Nationwide Advantage Mortgage Co. v. Ortiz, 2012 IL App (1st) 

112755, ¶ 20 (citing People v. Vincent, 226 Ill. 2d 1, 14 (2007)). A defendant may file a motion 

to dismiss an action where the plaintiff failed to commence the action within the time allowed by 

law. 735 ILCS 5/2-619(a)(5) (West 2010). Plaintiff’s wrongful death claim was brought 

pursuant to the Wrongful Death Act (the Act) (740 ILCS 180/0.01 et seq. (West 2010)). Section 

2 of the Act states that “[e]very such action shall be commenced within 2 years after the death of 

such person.” 740 ILCS 180/2 (West 2010). Section 13-212(a), relating to suits against 

physicians, provides that suit shall be filed within two years of knowledge of the death (735 

ILCS 5/13-212(a) (West 2010)). 

¶ 14 Plaintiff relies on Young v. McKiegue, 303 Ill. App. 3d 380 (1999), and Wells v. Travis, 

284 Ill. App. 3d 282 (1996), to support his position that the discovery rule applied in this case. 

The Young and Wells courts held that where a wrongful death claim is predicated upon a claim of 

medical malpractice that was not apparent to the plaintiff at the time of death, the statute of 
5 

limitations applicable to medical malpractice actions governs the time for filing. Young, 303 Ill. 

App. 3d at 389; Wells, 284 Ill. App. 3d at 286-87. These two cases also held that the discovery 

rule applied to wrongful death suits against physicians. We believe that Young and Wells were

incorrectly decided and refuse to follow them for the following reasons. 

¶ 15 Section 13-212(a) of the Code governs the time constraints for medical malpractice 

claims (735 ILCS 5/13-212(a) (West 2010)). Section 13-212(a), in pertinent part, states: 

“[N]o action for damages for injury or death against any physician, 

dentist, registered nurse or hospital duly licensed under the laws of 

this State, 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 ***.” 

(Emphasis added.) 735 ILCS 5/13-212(a) (West 2010). 

¶ 16 However, section 13-212 does not create a cause of action. Instead, it merely places a 

limitation on the filing of medical malpractice actions. Here, plaintiff’s cause of action was for 

wrongful death, a cause of action that did not exist at common law. Young and Wells relied on 

Witherell v. Weimer, 85 Ill. 2d 146 (1981), a common law personal injury action, to attach a 

discovery rule to a wrongful death action against a physician. A reading of Witherell simply 

does not support such a holding. The Witherell court read section 13-212(a) within the context 

of the discovery rule to mean that the two-year malpractice limitations period begins to run when 

one knew or should have known of the injury and also knew or should have known that the 
6 

injury was wrongfully caused. Witherell, 85 Ill. 2d at 156. However, the discovery rule cannot 

be found in the plain language of either the Act or section 13-212(a). Personal injury actions 

were born of the common (judge-made) law and are susceptible to changes by the judiciary. Not 

so with respect to wrongful death actions, which are creatures of the legislature. Likewise, at 

common law your personal injury action died with you. The Survival Act, too, is a creature of 

the legislature (755 ILCS 5/27-6 (West 2010)). It allows for recovery of damages the injured 

party could have recovered, had she survived. 

¶ 17 Our supreme court stated that the discovery rule does not alter the fact that the Wrongful 

Death Act created a new cause of action for death in 1853. Wyness v. Armstrong World 

Industries, Inc., 131 Ill. 2d 403, 413 (1989). It is well established that we will strictly construe a 

statute that is in derogation of the common law. In re W.W., 97 Ill. 2d 53, 57 (1983). The court 

will not read language into a statute that is not there. Wyness, 131 Ill. 2d at 416; see also People 

v. Perry, 224 Ill. 2d 312, 323-24 (2007) (citing People v. Martinez, 184 Ill. 2d 547, 550 (1998) 

(the court will not read into the statute exceptions, limitations, or conditions that conflict with the 

expressed intent)). The General Assembly is capable of providing a limitation period based on 

knowledge as evident by section 13-212(a). Wyness, 131 Ill. 2d at 416. 

¶ 18 So what did the General Assembly provide with respect to the filing of wrongful death 

and survival actions against physicians? It 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.” 735 ILCS 5/13-212(a) (West 2010). The required knowledge is of the death or injury, not 

of the negligent conduct. If the General Assembly wanted to provide a limitations period in the 
7 

Act commencing when one had knowledge of the negligent conduct, it would have done so. 

Wyness, 131 Ill. 2d at 416. 

¶ 19 The plain language of the Act required the plaintiff to file a wrongful death claim within 

two years of the date on which plaintiff knew of the death. Greenock v. Rush Presbyterian St. 

Luke’s Medical Center, 65 Ill. App. 3d 266 (1978). We conclude that Young and Wells were 

wrongly decided. Likewise, we decline to follow similar cases such as Coleman v. Hinsdale 

Emergency Medical Corp., 108 Ill. App. 3d 525 (1982) (The court held that the discovery rule 

applied to wrongful death cases; plaintiff had two years to file his claim after he discovered or 

should have discovered the death and its wrongful causation.). Arndt v. Resurrection Hospital, 

163 Ill. App. 3d 209 (1987) (relying on Coleman, the court found that the statute of limitations 

for wrongful death actions began to run when plaintiff discovered that defendant’s negligence 

contributed to the death of the decedent); and Hale v. Murphy, 157 Ill. App. 3d 531 (1987) 

(following Coleman, the court held that the discovery rule in the medical malpractice statute was 

applicable to wrongful death cases and the limitation period began when plaintiff knew or should 

have known of the injury and knew or should have know that the injury was wrongfully caused). 

¶ 20 Applying the limitation period set forth in section 13-212(a) to the present case, plaintiff 

had two years from the date on which he knew or should have known of Kathryn’s death to file a 

complaint (735 ILCS 5/13-212(a) (West 2010)). It is undisputed that plaintiff filed this action

more than two years after he knew or should have known of Kathryn’s death. Therefore, we 

need not discuss a situation where plaintiff filed a medical malpractice suit within two years of 

learning of a death, but more than two years after the death. Plaintiff filed a wrongful death 

claim against defendants beyond the time allowed in either the Act (740 ILCS 180/2 (West 
8 

2010)) or the medical malpractice statute of limitations (735 ILCS 5/13-212(a) (West 2010)). 

The trial court did not err in granting defendants’ motion to dismiss. 

¶ 21 We acknowledge that some appellate courts have applied the discovery rule to wrongful 

death actions where circumstances surrounding the death permitted an extension of time. Fure v. 

Sherman Hospital, 64 Ill. App. 3d 259 (1978); Praznik v. Sport Aero, Inc., 42 Ill. App. 3d 330 

(1976). In Praznik, the court held that the cause of action for wrongful death did not accrue 

until the aircraft wreckage was discovered, despite the fact that the accident happened more than 

two years and eight months prior to the discovery. Praznik, 42 Ill. App. 3d at 337. In Fure, the 

court stated that the discovery rule is only applicable when the circumstances surrounding the 

death permit such an extension of time. Fure, 64 Ill. App. 3d at 270. The court further held that 

the discovery rule is an exception to the rule and should be invoked sparingly and with caution. 

Id. Here, the circumstances surrounding Kathryn’s death do not support an extension of time; it 

is undisputed that plaintiff knew the date on which Kathryn died. See Beetle v. Wal-Mart 

Associates, Inc., 326 Ill. App. 3d 528 (2001) (court distinguished cases applying discovery rule 

to wrongful death where plaintiff was aware of husband’s death on the date it occurred and failed 

to file a wrongful death action within two years). We believe that the medical malpractice 

statute of limitations codifies the extension set forth in Praznik, at least in suits against healthcare 

providers. 735 ILCS 5/13-212(a) (West 2010). The clock starts ticking when the plaintiff 

“knew, or through the use of reasonable diligence should have known *** of the injury or 

death.” Id. 

¶ 22 The dissent argues that we concluded “that the discovery rule set forth in section 13-

212(a) of the Code does not apply to wrongful death or survival actions.” Infra ¶ 32. This, of 

course, is wrong. We do hold that section 13-212(a) applies and that the plain language of 
9 

section 13-212(a) provides that the clock starts ticking upon knowledge or notice of the injury or 

death, not upon notice of a potential defendant’s negligent conduct. The statute gives a claimant 

two years from the date of that knowledge or notice to figure out whether there is actionable 

conduct. 

¶ 23 Curiously, the dissent cites in detail language from a federal district court judge to the 

effect that the Illinois Supreme Court desires full recovery for a decedent’s family against 

wrongdoers and that such policies can only be effectuated if the discovery rule is applied to 

wrongful death cases. Infra ¶ 38. Both the dissent and federal district court judge fail to 

recognize that which the supreme court has recognized and acknowledged: that statutes in 

derogation of the common law have always been strictly construed. See Wyness, 131 Ill. 2d at 

416; In re W.W., 97 Ill. 2d at 57. The supreme court has specifically acknowledged that the court 

“will not read into a statute language which is clearly not there.” Wyness, 131 Ill. 2d at 416. We 

have looked everywhere possible in section 13-212(a) and nowhere can we find the language that

the dissent would have us read into the statute to the effect that the statute begins running “when 

plaintiff discovered the fact of the defendant’s negligence which contributed to the death.” 

(Emphasis in original and internal quotation marks omitted.) Infra ¶ 37. With all due respect to 

the dissent and the federal district court that the dissent cites with approval, both are applying 

common law rules to statutory causes of action contrary to age-old rules of statutory 

construction. 

¶ 24 Further, the dissent states that “[f]inally, the supreme court, in dicta, has approved the use 

of the discovery rule in wrongful death cases.” Infra ¶ 39. The dissent cites Wyness, 131 Ill. 2d 

at 413, for this proposition. In Wyness, a wrongful death action, the defendants were arguing that 

the statute of limitations should have started running before the death because the plaintiff knew 
10 

of decedent’s injuries and the cause of those injuries before the death. We fail to understand how 

anyone could read Wyness to support the proposition that the common law discovery rule applies

to wrongful death actions. The actual issue before the court in Wyness was whether the two-year 

limitations period of the Wrongful Death Act could be triggered by the discovery rule such that a 

cause of action could accrue prior to the death of plaintiff’s decedent. Wyness, 131 Ill. 2d at 406. 

In fact, the Wyness court observed that “this court has not to date applied the discovery rule to 

wrongful death actions.” Id. at 409. It still has not. The Wrongful Death Act was first enacted 

in 1853. The supreme court had over 160 years to apply the discovery rule to a wrongful death 

action and has, to date, resisted the urge. 

¶ 25 The dissent acknowledges that statutory language that is clear and unambiguous must be 

be given effect. Infra ¶ 48. Nowhere does the dissent point to any clear and unambiguous 

language in section 13-212(a) that the statute of limitations begins to run when the plaintiff 

knows or should have known of defendant’s wrongful conduct which contributed to the death. 

That language is not in the wrongful death act and it is not in section 13-212(a). If that language 

is to be added, it is to be added by the General Assembly, not the courts. Wyness, 131 Ill. 2d at 

416. 

¶ 26 The same is true with respect to the survival action. See 755 ILCS 5/27-6 (West 2010). 

Our supreme court held that the Survival Act did not create a new cause of action. National 

Bank of Bloomington v. Norfolk & Western Ry. Co., 73 Ill. 2d 160, 172 (1978). We suppose that 

is true to the extent that a cause of action to recover damages for personal injury always existed. 

However, at common law, your cause of action died with you. Bryant v. Kroger Co., 212 Ill.

App. 3d 335, 336 (1991). The Survival Act, in derogation of common law, provided the 

decedent’s representative with the ability to maintain claims that the decedent would have been 
11 

able to bring. We will strictly construe a statute that is in derogation of common law. In re 

W.W., 97 Ill. 2d at 57. At the very latest, the limitations period for a survival action begins to run 

when the injured party dies. Wolfe v. Westlake Community Hospital, 173 Ill. App. 3d 608 

(1988). A cause of action, for personal injury arising out of negligence, accrues at the time of 

the injury. Fetzer v. Wood, 211 Ill. App. 3d 70, 78 (1991). As stated above, section 13-212(a) 

governs the statute of limitations for personal injury actions against physicians; no action seeking

damages for injury against a physician shall be brought more than two years after the date on 

which the claimant knew or should have known of the injury or death. Plaintiff cites to no 

authority other than Young and Wells, where the court applied the discovery rule to extend the 

statute of limitations of a survival action. Here, it does not matter whether the injury occurred 

when Dr. Rhode interpreted the CT scans or at the time of death; plaintiff failed to file his 

survival action within two years of Kathryn’s death. 

¶ 27 Even if we were to apply the discovery rule, we would find, as the trial court did, that 

plaintiff’s complaint was untimely. Our supreme court stated that “ ‘if knowledge of negligent 

conduct were the standard, a party could wait to bring an action far beyond a reasonable time 

when sufficient notice has been received of a possible invasion of one’s legally protected 

interests.’ ” Knox College v. Celotex Corp., 88 Ill. 2d 407, 415 (1981) (quoting Nolan v. JohnsManville Asbestos, 85 Ill. 2d 161, 170-71 (1981)). Furthermore, the court held that “plaintiff 

need not have knowledge that an actionable wrong was committed.” Knox College, 88 Ill. 2d at 

415. “At some point the injured person becomes possessed of sufficient information concerning 

his injury and its cause to put a reasonable person on inquiry to determine whether actionable 

conduct is involved. At that point, under the discovery rule, the running of the limitations period 

commences.” Id. at 416. Here, plaintiff did not obtain Kathryn’s medical records until eight 
12 

months after her death. Plaintiff did not argue that he became possessed with new information 

within those eight months, which caused him to obtain the records. Furthermore, he waited 14 

months after receiving the records before submitting them to a medical consultant firm. Plaintiff 

points to nothing to explain the delay in either obtaining the records or submitting them for 

review. Moreover, he did not send the reports to Dr. Dachman for review until almost four years 

after Kathryn’s death. Plaintiff filed his complaint long after he became possessed with 

sufficient information, which put him on inquiry to determine whether actionable conduct was 

involved. The trial court did not err in granting defendants’ motion to dismiss. 

¶ 28 CONCLUSION

¶ 29 For the foregoing reasons, the judgment of the circuit court of Peoria County is affirmed. 

¶ 30 Affirmed.

¶ 31 JUSTICE LYTTON, dissenting.

¶ 32 I dissent. The majority’s conclusion that the discovery rule set forth in section 13-212(a) 

of the Code does not apply to wrongful death or survival actions conflicts with over 30 years of 

precedent (see Advincula v. United Blood Services, 176 Ill. 2d 1, 42-43 (1996); Young v. 

McKiegue, 303 Ill. App. 3d 380, 386 (1999); Wells v. Travis, 284 Ill. App. 3d 282, 287 (1996); 

Neade v. Engel, 277 Ill. App. 3d 1004, 1009 (1996); Durham v. Michael Reese Hospital 

Foundation, 254 Ill. App. 3d 492, 495 (1993); Janetis v. Christensen, 200 Ill. App. 3d 581, 585-

86 (1990); Cramsey v. Knoblock, 191 Ill. App. 3d 756, 764 (1989); Arndt v. Resurrection 

Hospital, 163 Ill. App. 3d 209, 213 (1987); Hale v. Murphy, 157 Ill. App. 3d 531, 533 (1987); 

Eisenmann v. Cantor Bros., Inc., 567 F. Supp. 1347, 1352-53 (N.D. Ill. 1983); Coleman v. 

Hinsdale Emergency Medical Corp., 108 Ill. App. 3d 525, 533 (1982); In re Johns-Manville 

Asbestosis Cases, 511 F. Supp. 1235, 1239 (N.D. Ill. 1981); Fure v. Sherman Hospital, 64 Ill. 
13 

App. 3d 259, 268 (1978); Praznik v. Sport Aero, Inc., 42 Ill. App. 3d 330, 337 (1976)), as well as 

the plain language of the statute (735 ILCS 5/13-212(a) (West 2010)). 

¶ 33 The discovery rule applies to plaintiff’s causes of action. I would reverse the trial court’s 

dismissal of plaintiff’s complaint. 

¶ 34 I. CASE LAW

¶ 35 A. Wrongful Death Actions 

¶ 36 Thirty-eight years ago, the First District applied the discovery rule to a wrongful death 

cause of action. See Praznik, 42 Ill. App. 3d at 337. Two years later, the Second District 

followed suit, “reject[ing] the idea that no wrongful death action can ever be brought more than 2 

years after the plaintiff knows of the death in question.” Fure, 64 Ill. App. 3d at 272. The court 

discussed the inequity of applying the discovery rule to personal injury actions but not wrongful 

death actions, concluding: “In our opinion there should be no barrier to the application of the 

‘discovery’ rule based on the ultimate tragedy of death where the circumstances of the death 

would have permitted an extension of the time limitation for the mere wounding or injury of the 

person and we hold that the fact of death does not per se foreclose the use of the discovery 

doctrine.” Id. at 270. The Second District reaffirmed its holding four years later, stating, “the 

discovery rule *** is applicable in a wrongful death case.” Coleman, 108 Ill. App. 3d at 533. 

Five years after that, the Fifth District also ruled that “[s]ection 13-212 is applicable to an action 

brought under the Wrongful Death Act.” Hale, 157 Ill. App. 3d at 533. The court refused to find 

that a decedent’s date of death triggered the start of the two-year statute of limitations for a 

plaintiff’s wrongful death claim because the “[p]laintiff could have reasonably believed [the 

decedent’s] death was the result of a nonnegligent factor.” Id. at 535. 
14 

¶ 37 Since 1987, Illinois courts have repeatedly and consistently applied the discovery rule to 

wrongful death claims. See Young, 303 Ill. App. 3d at 386 (when a wrongful death claim is 

predicated on a claim of medical malpractice that was not apparent to the plaintiff at the time of 

death, “the time for filing a wrongful death claim will be governed by the statute of limitations 

applicable to medical malpractice actions under section 13-212(a) of the Code”); Wells, 284 Ill. 

App. 3d at 287 (statute of limitations for wrongful death action began to run when plaintiff 

learned of defendant’s negligence); Neade, 277 Ill. App. 3d at 1009 (same); Durham, 254 Ill. 

App. 3d at 495 (“all actions for injury or death predicated upon the alleged negligence of a 

physician are governed by section 13-212(a)”); Cramsey, 191 Ill. App. 3d at 764 (when medical 

negligence is not known at the time of death, “the discovery rule will apply so that the limitation 

period begins to run when plaintiff discovered the fact of defendant’s negligence, not the fact of 

death”); Arndt, 163 Ill. App. 3d at 213 (statute of limitations began running “when plaintiff 

discovered the fact of the defendant’s negligence which contributed to the death of her husband, 

and not on the date she discovered the fact of the death of her husband” (emphases in original)). 

¶ 38 While our supreme court has not directly decided this issue, several courts have 

determined that the supreme court would likely apply the discovery rule to wrongful death cases. 

See Arndt, 163 Ill. App. 3d at 213; Eisenmann, 567 F. Supp. at 1352-53; Johns-Manville, 511 F. 

Supp. at 1239. The Second District concluded that because a petition for leave to appeal was 

filed by the defendants in Coleman but was denied by the supreme court, “the supreme court has 

granted its tacit approval” of applying the discovery rule to wrongful death actions. Arndt, 163 

Ill. App. 3d at 213. Additionally, the United States District Court for the Northern District of 

Illinois has twice ruled that our supreme court would likely apply the discovery rule to wrongful 
15 

death cases. See Eisenmann, 567 F. Supp. at 1352-53; Johns-Manville, 511 F. Supp. at 1235. 

The federal court in Eisenmann stated: 

“The Supreme Court of Illinois has expressed its desire to insure 

full recovery for a decedent’s family against wrongdoers. 

[Citation.] It has also held that the ‘discovery rule’ is the only fair 

means by which a statute of limitations can be applied in a case 

where an injury is both slowly and invidiously progressive, and 

where recognition of the illness – that an ‘injury’ has occurred – 

does not necessarily enlighten the victim that ‘the injury was 

probably caused by the wrongful acts of another.’ [Citation.] 

Without question, the policies underlying these recent Illinois 

Supreme Court decisions can only be effectuated if the ‘discovery 

rule’ is said to apply to Wrongful Death cases.” Eisenmann, 567 F.

Supp. at 1352-53. 

¶ 39 Finally, the supreme court, in dicta, has approved the use of the discovery rule in 

wrongful death cases, stating: “[T]he delay of the running of the limitation period accepted by 

the appellate court in some districts assures that a wrongful death action may be filed after death 

when plaintiffs finally know or reasonably should know of the wrongfully caused injury which 

led to death.” Wyness v. Armstrong World Industries, Inc., 131 Ill. 2d 403, 413 (1989). 

¶ 40 Based on the foregoing well-settled case law, I dissent from the majority’s refusal to 

apply the discovery rule to plaintiff’s wrongful death claim. 

¶ 41 B. Survival Actions 
16 

¶ 42 Eighteen years ago, our supreme court ruled that the discovery rule applies to Survival 

Act claims. Advincula, 176 Ill. 2d at 42-43. The court reasoned that because a survival claim “is 

a derivative action based on injury to the decedent, but brought by the representative of a 

decedent’s estate in that capacity,” the discovery rule should apply, just as it would in any other 

personal injury action. Id. at 42. 

¶ 43 Thirteen years earlier, the United States District Court for the Northern District of Illinois 

held that “the ‘discovery rule’ applies in actions brought under the Illinois Survival Act.” 

Eisenmann, 567 F. Supp. at 1354. The district court found that application of the discovery rule 

to survival actions was consistent with the supreme court’s position that “no statute of limitations 

will be imposed under this state’s law so as to rob the victims of invidious diseases, who are 

unable to quickly link their injury to the perpetrator, from recourse in Illinois courts.” Id. at 1353 

(citing Nolan v. Johns-Manville Asbestos, 85 Ill. 2d 161 (1981)). The court stated: 

“A survivor takes the rights of the decedent – no more and no less. 

Therefore if the decedent would have had a cause of action during 

his lifetime, but for the invidious nature of his disease and his 

inability to link the injury to the wrongdoer, then that cause of 

action, when discovered, should survive his death. Adoption of 

any other rule will represent a relapse to the incongruous injustice 

which the Supreme Court expressly wanted to avoid when ‘the 

injury caused is so severe that death results, [and] the wrongdoer’s 

liability [is thereby] extinguished.’ [Citation.] I do not believe the 

Illinois Supreme Court would impose on survivors the statute of 

limitations constraints which decedent’s would have faced had 
17 

they lived without also allowing them the benefits of the ‘discovery 

rule’ which would have inured to them had their injuries not been 

so severe as to cost them their lives.” (Emphases in original.) Id. 

at 1354. 

¶ 44 Illinois appellate courts have applied the discovery rule to survival actions. See Wells, 

284 Ill. App. 3d at 286; Janetis, 200 Ill. App. 3d at 585-86. This analysis is consistent with the 

reasoning of Professors Dobbs, Hayden and Bublick in their treatise. “The discovery rule is now 

familiar in personal injury statute of limitations cases. It logically applies as well in survival 

actions, which are merely continuations of the personal injury claim ***.” 2 Dan Dobbs, et al., 

The Law of Torts § 379, at 528-29 (2d ed. 2011) (citing White v. Johns-Manville Corp., 693 P.2d 

687 (Wash. 1985)). 

¶ 45 I agree with the above reasoning and would hold that because the discovery rule would 

apply to a personal injury action brought by an injured party who survives, it should likewise 

apply to a survival action brought on behalf of an injured party who did not survive. I see no 

rational reason to distinguish between the two. 

¶ 46 II. STATUTE

¶ 47 I also dissent from the majority’s decision because it conflicts with the plain language of 

section 13-212 of the Code. 

¶ 48 The primary rule of statutory construction requires that a court give effect to the intent of 

the legislature. Ming Auto Body/Ming of Decatur, Inc. v. Industrial Comm’n, 387 Ill. App. 3d 

244, 253 (2008). In ascertaining the legislature’s intent, courts begin by examining the language 

of the statute, reading the statute as a whole, and construing it so that no word or phrase is 
18 

rendered meaningless. Id. Statutory language that is clear and unambiguous, must be given 

effect. Id. 

¶ 49 Section 13-212 of the Code states that it applies to an “action for damages for injury or 

death against any physician *** or hospital duly licensed under the laws of this State.” 

(Emphasis added.) 735 ILCS 5/13-212(a) (West 2010). Section 13-212 expressly refers to 

“damages resulting in death.” Beetle v. Wal-Mart Associates, Inc., 326 Ill. App. 3d 528, 536 

(2001). In order to give those words meaning, section 13-212 must be applied to wrongful death 

and survival actions, where the damages caused by the medical professional resulted in the death 

of the decedent. The majority’s ruling that section 13-212 does not apply to wrongful death and 

survival actions requires us to disregard the plain language of section 13-212 and violate the 

fundamental rule of statutory construction that no word or phrase should be rendered superfluous 

or meaningless. See id. 

¶ 50 The majority’s conclusion that the discovery rule does not apply to wrongful death and 

survival actions conflicts with the plain language of section 13-212 of the Code. I dissent on that 

basis as well. 

¶ 51 III. APPLICATION OF DISCOVERY RULE

¶ 52 Since I have found that the discovery rule can be applied to wrongful death and survival 

actions, I must next determine whether application of the discovery rule prevents dismissal of 

plaintiff’s case. 

¶ 53 When a complaint alleges wrongful death caused by medical malpractice, the statute of 

limitations begins to run when the plaintiff knows or should have known that the death was 

“wrongfully caused.” Young, 303 Ill. App. 3d at 388. “ ‘[W]rongfully caused’ does not mean 

knowledge of a specific defendant’s negligent conduct or knowledge of the existence of a cause 
19 

of action.” Id. Rather, it refers to “that point in time when ‘the injured party becomes possessed 

of sufficient information concerning his [or her] injury and its cause to put a reasonable person 

on inquiry to determine whether actionable conduct is involved.’ ” Id. (quoting Knox College v. 

Celotex Corp., 88 Ill. 2d 407, 416 (1981)). 

¶ 54 Whether a party possesses the requisite constructive knowledge that an injury or death 

occurred as the result of medical negligence contemplates an objective analysis of the factual 

circumstances involved in the case. Id. at 390. The relevant determination rests on what a 

reasonable person should have known under the circumstances, and not on what the particular 

party specifically suspected. Id. The trier of fact must examine the factual circumstances upon 

which the suspicions are predicated and determine if they would lead a reasonable person to 

believe that wrongful conduct was involved. Id. What the plaintiff knew or reasonably should 

have known after viewing the medical records available and the factual circumstances presented, 

and whether based on that information plaintiff knew or reasonably should have known that the 

decedent’s death may have resulted from negligent medical care, are questions best reserved for 

the trier of fact. Id. 

¶ 55 When it is not obvious that death was caused by medical negligence, the statute of 

limitations begins to run when the plaintiff receives a report from a medical expert finding 

negligence against any medical professional who treated the decedent. See Clark v. Galen 

Hospital Illinois, Inc., 322 Ill. App. 3d 64, 74-75 (2001); Young, 303 Ill. App. 3d at 389; Wells,

284 Ill. App. 3d at 287. A plaintiff need not know of a specific defendant’s negligence before 

the limitations clock begins to run against that defendant. See Castello v. Kalis, 352 Ill. App. 3d 

736, 748-49 (2004); Wells, 284 Ill. App. 3d at 289. 
20 

¶ 56 Here, Kathryn died on May 29, 2009. On May 1, 2011, plaintiff received a report from 

Dr. Boyd stating that Dr. Williamson and Dr. Salimath were negligent in treating Kathryn. Nine 

days later, plaintiff filed a medical negligence complaint against Dr. Williamson and Dr. 

Salimath. In February 2013, a radiologist reviewed Kathryn’s May 24 CT scan and determined 

that Dr. Rhode was negligent. In March 2013, plaintiff filed his medical negligence complaint 

against Dr. Rhode and Central Illinois Radiological Associates, Ltd. 

¶ 57 The relevant inquiry is not when plaintiff became aware that Dr. Rhode committed 

medical negligence but when plaintiff became aware that any defendant committed medical 

negligence against Kathryn. See Wells, 284 Ill. App. 3d at 287-89. Based on the circumstances 

in this case, a reasonable trier of fact could conclude that plaintiff did not possess sufficient 

information to know that Kathryn’s death was wrongfully caused until May 1, 2011, when he 

received Dr. Boyd’s report finding that Dr. Williamson and Dr. Salimath were negligent. See 

Clark, 322 Ill. App. 3d at 74; Young, 303 Ill. App. 3d at 389; Wells, 284 Ill. App. 3d at 287. 

“What plaintiff knew or reasonably should have known after viewing the medical records 

available and the factual circumstances presented, and whether based on that information 

plaintiff knew or reasonably should have known that [his mother’s] death may have resulted 

from negligent medical care are questions best reserved for the trier of fact.” Young, 303 Ill. 

App. 3d at 390. Because a disputed question of fact remains about when the statute of 

limitations began to run against defendants, I would reverse the trial court’s dismissal of 

plaintiff’s complaint. See id.; Clark, 322 Ill. App. 3d at 75.