The Medical Malpractice Statute of Repose is not an “Absolute Bar” where a timely filed Complaint Preserves the Claim

On November 30, 2017, the Illinois Supreme Court evaluated the interplay of the Wrongful Death Act, the medical malpractice statute of repose, and the relation back statute in a matter of “first impression” in the State of Illinois. See Lawler v. Univ. of Chi. Med. Ctr., 2017 IL 120745, appealed from Lawler v. Univ. of Chi Med. Ctr., 2016 IL App (1st) 143189.  At issue was whether a pending medical malpractice complaint can be amended to include a Wrongful Death claim that accrued after the statute of repose expired.  Relying on the relation back statute, the Illinois Supreme Court held that it can.

Jill Prusak filed a complaint against the University of Chicago and other medical providers alleging that from November 5, 2007 through July 2009, she received medical care and treatment for “flashes, spots and floaters in her eyes.” Then, on August 7, 2009, she underwent a brain biopsy that revealed central nervous system lymphoma.  Her Complaint, filed on August 4, 2011, alleged her medical providers were negligent in failing to conduct the proper diagnostic tests and evaluations, which would have diagnosed her cancer. On November 24, 2013, Ms. Prusak died. Her daughter, Sheri Lawler, who was substituted as party Plaintiff and executor of her mother’s estate, filed an Amended Complaint on April 11, 2014, adding a claim for Wrongful Death.

The University of Chicago defendants filed a motion to dismiss the Wrongful Death claim based on Section 2-619(a)(5) of the Code of Civil Procedure, contending plaintiff’s Wrongful Death claim was barred by the four-year medical malpractice statute of repose as it was filed more than four years after the last alleged act of medical treatment. In response, Plaintiff argued her claim was timely because it related back to the original Complaint. The Circuit Court agreed with defendants, reasoning the medical malpractice statute of repose was an “absolute bar” to a Wrongful Death claim brought more than four years after the last alleged act of negligence. Plaintiff appealed.

The Appellate court reversed the Circuit Court, finding the relation back doctrine applied, and the Plaintiff’s wrongful death claim was not barred by the statute of repose. The Supreme Court agreed.

In reaching that conclusion, the Supreme Court examined the three statutes involved. The Court explained under the relation back statute, a newly added claim relates back to the date of an original pleading if two requirements have been met: 1) the original pleading must have been timely filed, and 2) the additional claim must grow out of the same transaction or occurrence set forth in the original pleading. 735 ILCS 5/2-616(b). In Lawler, both requirements for relation back were met. Moreover, neither requirement was contested by defendants. Rather, the issue was whether the four-year medical malpractice statute of repose operated to extinguish plaintiff’s Wrongful Death claim before it even accrued.

The Wrongful Death Act 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; however, in a wrongful death action “the cause of action is the wrongful act, neglect or default causing death, and not the death itself.” Wyness v. Armstrong World Industries, Inc., 131 Ill. 2d 403, 411 (1989). The medical malpractice statute of repose subjects actions based on medical malpractice to a four-year limitations period, which is triggered by the occurrence of the act or omission that gave rise to the cause of action. 735 ILCS 5/13-212(a). Accordingly, the statute of repose may preclude recovery for an injury arising out of patient care even before the Plaintiff knows of or discovers the injury.

Contrary to the First District Appellate Court’s assessment that this case presents “a classic clash of apparently conflicting statutes,” the Supreme Court found no conflict between the statutes. See Lawler v. Univ. of Chi Med. Ctr., 2016 IL App (1st) 143189 ¶ 17. The Court explained the statute of repose bars a cause of action if it is initially brought more than four years after the alleged medical negligence. However, the relation back statute governs amendments to complaints and functions without being subject to time limitations. Thus, the Court concluded the relation back statute is the more specific statutory provision when the circumstances involve an amendment to a timely filed complaint. Under those circumstances, the statute of repose will not bar an amendment as long as there is a pending, timely filed original complaint and the same transaction or occurrences test is satisfied.

In Lawler, the decedent’s original Complaint alleged she received medical care from the defendants between November 5, 2007 and July 2009. On August 7, 2009, she learned she had central nervous system lymphoma.  Accordingly, the two-year statute of limitations was triggered at that time: the date she discovered her injuries. However, the statute of repose began to run in July 2009, on the date of the last alleged act of medical treatment. The Supreme Court agreed that the statute of repose period had expired in July 2013, four months before Ms. Prusak died. The Supreme Court also agreed that if Plaintiff had filed an original complaint for wrongful death at that time, her action would have been barred by the statute of repose. However, that is not what occurred here. Rather, the Plaintiff in Lawler sought to add a claim for Wrongful Death to her timely filed original pleading.  The Supreme Court relied on language in the relation back statute stating amendments to a complaint “shall not be barred by lapse of time under any statute” so long as the original pleading was timely filed. The Supreme Court interpreted this language to include statutes of repose, and held Plaintiff’s Wrongful Death claim could be added by amendment to her pending complaint pursuant to the relation back statute.

In sum, the Lawler decision follows a long line of Illinois jurisprudence interpreting the relation back doctrine broadly and liberally. In the wake of Lawler, so long as Plaintiff files her original Complaint timely, statutes of repose will not bar subsequent amendments to pleadings or the addition of claims where the same transaction or occurrence test is satisfied.

Lynsey A. Stewar

Lynsey A. Stewar

Lynsey Stewart is an associate attorney with Cassiday Schade, based in the firm’s Chicago office. Ms. Stewart concentrates her practice in civil litigation with an emphasis on medical malpractice and general liability actions. Ms. Stewart has represented both physicians and hospitals in medical malpractice cases from discovery through trial.

In addition to her experience in trial court, Ms. Stewart has an appellate practice, managing all aspects of an appeal from brief writing to oral argument. Ms. Stewart has won multiple appeals for her clients in both Illinois Appellate Courts and in the Seventh Circuit.