Moon v. Rhode

2016 IL 119572

IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS

(Docket No. 119572)

RANDALL W. MOON, Appellant, v. CLARISSA F. RHODE et al., Appellees.

Opinion filed September 22, 2016.

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

Chief Justice Garman and Justices Freeman, Thomas, Kilbride, Karmeier, and
Burke concurred in the judgment and opinion.

OPINION

¶1 This appeal arises from an order of the circuit court of Peoria County granting
the motion of defendants, Dr. Clarissa Rhode and Central Illinois Radiological
Associates, Ltd., to dismiss as time-barred plaintiff Randall Moon’s complaint
brought under the Wrongful Death Act (740 ILCS 180/1 et seq. (West 2012)) and
the Survival Act (755 ILCS 5/27-6 (West 2012)). The appellate court affirmed and
held that the two-year statute of limitations for filing the complaint began to run at
the time of decedent’s death and not after plaintiff discovered defendants’ alleged
 medical negligence. 2015 IL App (3d) 130613, ¶¶ 20, 32. For the reasons that
follow, we reverse the judgment of the appellate court and remand for further
proceedings.

¶2 BACKGROUND

¶3 On May 18, 2009, plaintiff’s 90-year-old mother, Kathryn Moon, was admitted
to Proctor Hospital in Peoria for a rectal prolapse. On May 20, 2009, Dr. Jeffrey
Williamson performed a perineal proctectomy on Kathryn and, along with his
associate, Dr. Jayaraj Salimath, followed her postoperatively. During Kathryn’s
hospitalization, she experienced numerous complications, including labored
breathing, pain, fluid overload, pulmonary infiltrates, pneumoperitoneum, sepsis,
and an elevated white blood cell count. On May 23, 2009, Dr. Salimath ordered
computed tomography (CT) scans of Kathryn’s chest and abdominal area. Dr.
Rhode, a radiologist, read the CT scans on May 24, 2009. Plaintiff returned from
out of state to his mother’s bedside on the evening of May 27, 2009. Her oxygen
levels had significantly dropped, and she was not awake or responsive. On May 29,
2009, Kathryn died in the hospital.

¶4 On June 9, 2009, plaintiff, an attorney and one of Kathryn’s four children, was
appointed as executor of his mother’s estate. On February 26, 2010, plaintiff
executed an authorization to obtain Kathryn’s complete medical file from Proctor
Hospital, which included the CT scans. On March 10, 2010, plaintiff received the
requested records.

¶5 On April 11, 2011, plaintiff contacted a medical consulting firm to review
Kathryn’s medical records. On April 21, 2011, plaintiff received Dr. Roderick
Boyd’s oral opinion that Drs. Williamson and Salimath were negligent in treating
Kathryn after her admission to the hospital. On May 2, 2011, plaintiff received a
written report from Dr. Boyd setting forth his specific findings of purported
negligence against Drs. Williamson and Salimath. In the report, he was critical of
the two doctors for waiting “almost a week to attempt to treat the infection and
supply sufficient oxygen” to Kathryn.

¶6 On May 10, 2011, plaintiff filed a complaint against Drs. Williamson and
Salimath alleging, inter alia, that they failed to diagnose and/or timely treat

-2-
 Kathryn’s pneumonia and respiratory distress. 1 On May 8, 2012, plaintiff’s
discovery deposition was taken in that lawsuit. When asked in the deposition how
his mother’s death had affected him, he responded, “[e]ven though she was fairly
old, my impression was that she was doing okay and that, you know, she should
have gotten better treatment than she did.”

¶7 Almost two years later, on February 28, 2013, Kathryn’s CT scans from May
2009 were reviewed by Dr. Abraham Dachman upon plaintiff’s request. On March
4, 2013, Dr. Dachman provided plaintiff with a report stating that he had reviewed
the CT scans and Dr. Rhode failed to identify “large loculated extraluminal
collection of fluid,” which a “reasonably, well-qualified radiologist and physician
would have identified.” Dr. Dachman further opined that Dr. Rhode’s failure to
properly identify those findings caused or contributed to the injury and death of
Kathryn.

¶8 On March 18, 2013, plaintiff filed the instant cause of action, pursuant to the
Wrongful Death Act (Act) (740 ILCS 180/1 et seq. (West 2012)) and the Survival
Act (755 ILCS 5/27-6 (West 2012)), claiming medical malpractice against Dr.
Rhode and her employer, Central Illinois Radiological Associates, Ltd. Plaintiff
alleged, inter alia, that he did not discover that Dr. Rhode had failed to diagnose the
breakdown of the anastomosis until February 28, 2013, when Dr. Dachman
reviewed the CT scans taken on May 23 and 24, 2009.

¶9 Defendants filed a motion to dismiss plaintiff’s complaint under section
2-619(a)(5) of the Code of Civil Procedure (Code) (735 ILCS 5/2-619(a)(5) (West
2012)). Defendants asserted that plaintiff’s cause of action was time-barred, citing
both section 13-212(a) of the Code (735 ILCS 5/13-212(a) (West 2012)) and
section 2(c) of the Act (740 ILCS 180/2(c) (West 2012)), because it was filed more
than two years after Kathryn’s death. Defendants also argued that plaintiff had
sufficient information more than two years before he filed his complaint to put him
on inquiry to determine whether actionable conduct was involved. Therefore,
according to defendants, even if the “discovery rule” applied, the record showed
that the complaint was still untimely filed.

1
This cause of action (Peoria County, Docket No. 11 L 147) is not at issue here.

-3-
¶ 10 The trial court granted defendants’ motion and dismissed the complaint with
prejudice. The trial court held that the complaint was untimely because the date of
Kathryn’s death was the “date from which the two-year statute [of limitations]
should be measured.” The trial court further 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.”

¶ 11 A divided appellate court affirmed. 2015 IL App (3d) 130613, ¶ 32. The
appellate majority held that plaintiff was required to file his complaint within two
years of the date on which he knew or reasonably should have known of Kathryn’s
death. Id. ¶ 20. Acknowledging its disagreement with other districts of the appellate
court, the appellate majority found that the discovery rule contained in section
13-212(a) of the Code has no application to a wrongful death or a survival action
because both causes of action were legislatively created and not found at common
law. Id. ¶¶ 14, 16. Because plaintiff in this case had two years from the date on
which he knew or should have known of Kathryn’s death to file his complaint and
he failed to do so, the appellate majority concluded that the trial court properly
granted defendants’ motion to dismiss the complaint with prejudice. Id. ¶ 20. With
limited elaboration, the appellate majority also noted that plaintiff filed his
complaint more than two years after he had sufficient information to put him on
inquiry to determine whether actionable conduct by Dr. Rhode was involved. Id.
¶ 27. Consequently, even if the discovery rule were applied in this case, the
appellate majority believed plaintiff’s complaint would still be untimely. Id.

¶ 12 The dissenting justice wrote to highlight that the majority’s conclusion that the
discovery rule contained in section 13-212(a) of the Code does not apply to
wrongful death or survival actions conflicts with more than 30 years of state and
federal court precedent. 2015 IL App (3d) 130613, ¶ 35 (Lytton, J., dissenting).
Based on the circumstances here, the dissenting justice believed that 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 2011, when plaintiff
received Dr. Boyd’s report, in which case plaintiff’s complaint, filed within two
years of that date, would have been timely. Id. ¶ 60. Because a disputed question of
fact remained about when the statute of limitations began to run against defendants,

-4-
 the dissenting justice would have reversed the trial court’s dismissal of plaintiff’s
complaint. Id.

¶ 13 Plaintiff filed a petition for leave to appeal (Ill. S. Ct. R. 315 (eff. July 1, 2013)),
which we granted. We also allowed the Illinois Association of Defense Trial
Counsel, as well as the Illinois State Medical Society and American Medical
Association, leave to file amicus curiae briefs in support of defendants. Ill. S. Ct. R.
345 (eff. Sept. 20, 2010).

¶ 14 ANALYSIS

¶ 15 Defendants’ motion to dismiss plaintiff’s complaint was brought pursuant to
section 2-619(a)(5) of the Code (735 ILCS 5/2-619(a)(5) (West 2012)). When
deciding a section 2-619 motion, a court accepts all well-pleaded facts in the
complaint as true and will grant the motion when it appears that no set of facts can
be proved that would allow the plaintiff to recover. Feltmeier v. Feltmeier, 207 Ill.
2d 263, 267 (2003). Specifically, under section 2-619(a)(5), a defendant is entitled
to a dismissal if the “action was not commenced within the time limited by law.”
735 ILCS 5/2-619(a)(5) (West 2012). Our review of an order granting a section
2-619 motion is de novo. Henderson Square Condominium Ass’n v. LAB
Townhomes, LLC, 2015 IL 118139, ¶ 34.

¶ 16 I

¶ 17 We first must determine whether, as plaintiff argues, the appellate court erred in
concluding that the discovery rule contained in section 13-212(a) of the Code (735
ILCS 5/13-212(a) (West 2012)) is not applicable to wrongful death and survival
actions predicated upon medical malpractice.

¶ 18 A wrongful death cause of action is brought by the personal representative of
the decedent to provide the surviving spouse and next of kin compensation for the
pecuniary losses suffered by reason of the decedent’s death. Turcios v. The
DeBruler Co., 2015 IL 117962, ¶ 17. In contrast, the Survival Act does not create a
statutory cause of action. Id. It merely allows a representative of the decedent to

-5-
 maintain those statutory or common-law actions that had already accrued to the
decedent before he or she died. Id.

¶ 19 This court first applied the discovery rule in Rozny v. Marnul, 43 Ill. 2d 54
(1969). We discussed the purpose of the rule and stated:

“The basic problem is one of balancing the increase in difficulty of proof
which accompanies the passage of time against the hardship to the plaintiff who
neither knows nor should have known of the existence of his right to sue. There
are some actions in which the passage of time, from the instant when the facts
giving rise to liability occurred, so greatly increases the problems of proof that
it has been deemed necessary to bar plaintiffs who had not become aware of
their rights of action within the statutory period as measured from the time such
facts occurred. [Citations.] But where the passage of time does little to increase
the problems of proof, the ends of justice are served by permitting plaintiff to
sue within the statutory period computed from the time at which he knew or
should have known of the existence of the right to sue. [Citations.]” Id. at 70.

¶ 20 More recently, this court reiterated that the purpose of the discovery rule is to
“ameliorate the potentially harsh effect of a mechanical application of the statute of
limitations that would result in it expiring before a plaintiff even knows of his cause
of action.” Henderson Square Condominium Ass’n, 2015 IL 118139, ¶ 52.

¶ 21 Plaintiff urges us to apply the discovery rule found in section 13-212(a) of the
Code to his wrongful death claim and conclude that, where a death is at issue in a
medical malpractice claim, the two-year statute of limitations should begin to run
only when there is knowledge of the death and the claimant also knows or
reasonably should have known that it was wrongfully caused. Defendants, citing
the same statutory language, assert that the date of the decedent’s death should be
the controlling date from which the two-year statute is measured.

¶ 22 The parties agree that the issue before us is one of statutory construction. The
fundamental rule of statutory construction is to ascertain and give effect to the
legislature’s intent. Hayashi v. Illinois Department of Financial & Professional
Regulation, 2014 IL 116023, ¶ 16. The most reliable indicator of the legislature’s
intent is the statutory language, which must be given its plain and ordinary
meaning. Id. Where statutory provisions are clear and unambiguous, the plain

-6-
 language as written must be given effect without reading into it exceptions,
limitations, or conditions that the legislature did not express. Id. Because this issue
presents a question of law, our review also proceeds de novo. Schultz v.
Performance Lighting, Inc., 2013 IL 115738, ¶ 12.

¶ 23 Section 13-212(a) of the Code, relied upon by the parties, states:

“Physician or hospital. (a) Except as provided in Section 13-215 of this Act, no
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, 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 2012).

¶ 24 Pursuant to the plain language of section 13-212(a) of the Code, within a
four-year statute of repose, any claim of malpractice against a physician or hospital
must be filed within two years of 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 damages have been sought.

¶ 25 Defendants assert that this statutory language omits any hint of the discovery of
wrongful conduct in a wrongful death action.

¶ 26 This court has already interpreted the meaning of the word “injury” within the
context of this provision of the Code. See Witherell v. Weimer, 85 Ill. 2d 146,
153-54 (1981). In Witherell, we recognized that where substantial intervals exist
between the time at which a plaintiff should have known of the physical injury and
the time at which he should have known that it was negligently caused, the
definition of “injury” as including or excluding its wrongful causation becomes
significant. Id. at 155. We further recognized that it had been suggested that we had
left unresolved the question of whether the statute is triggered by the plaintiff’s
discovery of the injury or not until discovery of the negligence where, as alleged by

-7-
 the plaintiff, knowledge of her injury substantially preceded knowledge of its
cause. Id. In answering this question, we concluded: “[t]he statute starts to run
when a person knows or reasonably should know of his injury and also knows or
reasonably should know that it was wrongfully caused.” (Emphases added.) Id. at
156.

¶ 27 We are now tasked with determining whether under section 13-212(a) of the
Code the term “death” in the phrase “injury or death” should receive a different
construction than our interpretation of “injury” in the same sentence. We agree with
plaintiff that no cognizable reason exists for us to interpret “death” in a different
manner than we have already interpreted “injury” in that sentence. We therefore
conclude, consistent with our statutory interpretation in Witherell, that the statute of
limitations in a wrongful death action alleging medical malpractice begins to run
when a plaintiff knows or reasonably should know of the death and also knows or
reasonably should know that it was wrongfully caused.

¶ 28 Consequently, as our appellate court has held, relying upon our rationale in
Witherell:

“The effect of applying the discovery rule in wrongful death cases based
upon medical malpractice is to toll the limitations period until the plaintiff
knows or should have known of the wrongful cause of the death for which relief
is being sought. Thus, knowledge of the death does not commence the statute of
malpractice limitations. Rather, the malpractice limitations period begins to run
when the plaintiff knows or should have known not only of the death, but also
that the death was wrongfully caused.” Young v. McKiegue, 303 Ill. App. 3d
380, 387 (1999).

¶ 29 Although not a basis for the appellate court’s decision, defendants also rely
upon the limitations period contained in section 2(c) of the Act (740 ILCS 180/2(c)
(West 2012)). This section of the Act provides, in pertinent part, that “[e]very such
action shall be commenced within 2 years after the death of such person.” 740 ILCS
180/2(c) (West 2012). 2 We do not find, however, that this provision controls the

2
This section of the Act was recently amended to additionally provide that “[a]n action
may be brought within 5 years after the date of the death if the death is the result of violent
intentional conduct or within one year after the final disposition of the criminal case if the

-8-
 statute of limitations issue here. Plaintiff’s wrongful death case was predicated
upon medical malpractice, and as such, we find the more specific statute of
limitations relating to medical malpractice must control. See Abruzzo v. City of
Park Ridge, 231 Ill. 2d 324, 346 (2008) (“[w]hen a general statutory provision and
a more specific one relate to the same subject, we will presume that the legislature
intended the more specific statute to govern”).

¶ 30 We also presume that the legislature intended section 13-212(a) of the Code to
govern this wrongful death claim because the language contained therein
specifically provides that “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 2012). If the legislature had intended for the statute of limitations period
contained in section 2(c) of the Act to control plaintiff’s cause of action, the
language in section 13-212(a) of the Code would be superfluous, as all wrongful
death claims alleging medical malpractice would have to be brought no later than
two years after the decedent’s death. See In re Detention of Lieberman, 201 Ill. 2d
300, 308 (2012) (when interpreting a statute, each word, clause, and sentence, if
possible, must be given reasonable meaning and not rendered superfluous).

¶ 31 Our determination today is also supported by the weight of appellate authority
in Illinois over the past 38 years. A long line of appellate court decisions, beginning
with Fure v. Sherman Hospital, 64 Ill. App. 3d 259 (2d Dist. 1978), have applied
the discovery rule to wrongful death cases alleging medical malpractice. See, e.g.,
Young, 303 Ill. App. 3d 380 (1st Dist.); Wells v. Travis, 284 Ill. App. 3d 282 (2d
Dist. 1996); Neade v. Engel, 277 Ill. App. 3d 1004 (2d Dist. 1996); Durham v.
Michael Reese Hospital Foundation, 254 Ill. App. 3d 492 (1st Dist. 1993);
Cramsey v. Knoblock, 191 Ill. App. 3d 756 (4th Dist. 1989); Arndt v. Resurrection
Hospital, 163 Ill. App. 3d 209 (1st Dist. 1987); Hale v. Murphy, 157 Ill. App. 3d
531 (5th Dist. 1987); Coleman v. Hinsdale Emergency Medical Corp., 108 Ill. App.
3d 525 (2d Dist. 1982).

defendant is charged with [one of the enumerated criminal offenses].” Pub. Act 99-587, § 5
(eff. Jan. 1, 2017).

-9-
¶ 32 In fact, with the sole exception of Greenock v. Rush Presbyterian St. Luke’s
Medical Center, 65 Ill. App. 3d 266 (1st Dist. 1978), which no reported case prior
to the appellate majority below has followed for the proposition at issue here, our
appellate court has consistently applied the discovery rule to wrongful death cases
alleging medical malpractice.

¶ 33 In the period since Fure was decided in 1978, the General Assembly has
amended section 13-212 of the Code and its precursor (Ill. Rev. Stat. 1991, ch. 110,
¶ 13-212) several times. See Pub. Act 82-783, art. III, § 43 (eff. July 13, 1982);
Pub. Act 83-235, § 1 (eff. Sept. 8, 1983); Pub. Act 85-18, § 1 (eff. Jan. 1, 1988);
Pub. Act 85-907, art. II, § 1 (eff. Nov. 23, 1987); Pub. Act 86-1329, § 4 (eff. Jan. 1,
1991). Despite these numerous amendments, the legislature has not amended the
language in a way that would indicate a disagreement with our appellate court’s
consistent and repeated construction of the statute. As this court has recognized,
“the judicial construction of the statute becomes a part of the law, and the
legislature is presumed to act with full knowledge of the prevailing case law and the
judicial construction of the words in the prior enactment.” People v. Villa, 2011 IL
110777, ¶ 36; see also In re Marriage of Mathis, 2012 IL 113496, ¶ 25; Hubble v.
Bi-State Development Agency of Illinois-Missouri Metropolitan District, 238 Ill. 2d
262, 273-74 (2010). We find this legislative acquiescence further supports our
statutory interpretation that the limitations period for wrongful death actions
claiming medical malpractice begins to run when the plaintiff knows or should
have known not only of the death but that it was wrongfully caused.

¶ 34 We next consider whether the discovery rule is also applicable to plaintiff’s
Survival Act claim.

¶ 35 Section 13-209(a) of the Code contains the statute of limitations for such
actions and provides: “[i]f a person entitled to bring an action dies before the
expiration of the time limited for the commencement thereof, and the cause of
action survives: *** an action may be commenced by his or her representative
before the expiration of that time, or within one year from his or her death
whichever date is the later.” 735 ILCS 5/13-209(a) (West 2012).

¶ 36 The parties only address the applicability of the discovery rule to plaintiff’s
survival action briefly, both relying upon this court’s decision in Advincula v.
United Blood Services, 176 Ill. 2d 1 (1996). Plaintiff relies on it for the proposition

- 10 -
 that this court has already applied the discovery rule to survival actions and that he,
as decedent’s representative, timely filed the complaint under section 13-212(a) of
the Code within two years of his discovering defendants’ wrongdoing. Defendants
rely upon Advincula to advance their argument that the date the deceased learns of
his or her injury, not the date the representative discovers it, should control the
limitations period.

¶ 37 In Advincula, the plaintiff, as the administrator of the estate of her husband,
brought a survival action against the defendant alleging that it had negligently
failed to screen HIV-contaminated blood, resulting in her husband’s contraction of
AIDS and his eventual death some four years after he had received the transfusion.
Id. at 11. The defendant argued that the plaintiff’s claim was time-barred by the
two-year statute of limitations applicable to personal injury actions. Id. at 41. We
rejected this argument and held that the statute of limitations period in a Survival
Act claim is triggered on the date that the decedent discovers the injury. Id. at 42.
Because the plaintiff filed the cause of action less than two years after the decedent
learned that he had contracted AIDS, the plaintiff’s claim was not time-barred. Id.
at 43.

¶ 38 In reaching this determination, we reiterated that the Survival Act does not
create a statutory cause of action. Id. at 42. “It merely allows a representative of the
decedent to maintain those statutory or common law actions which had already
accrued to the decedent before he died.” Id. Consequently, for purposes of
triggering the statutory limitations period, it is the date the deceased learns of his
injury that is controlling. Id.

¶ 39 Advincula instructs that the representative steps into the shoes of the decedent
and takes the rights of the decedent. If the decedent could not pursue a cause of
action if he or she had survived because it would have been time-barred, neither can
the representative. In Advincula, the decedent discovered the defendant’s alleged
negligence prior to his death, and his wife, as his representative, timely filed the
cause of action within two years of the discovery date. Here, it is undisputed that
Kathryn was nonresponsive prior to her death in the hospital, which occurred just a
few days after Dr. Rhode interpreted the CT scans. Under such circumstances, it is
axiomatic that only Kathryn’s representative would be in a position to discover any
wrongdoing on the part of her medical providers. Consistent with our holding in

- 11 -
 Advincula, we see no reason, and defendants provide us with none, to impose the
statute of limitations constraints that the decedent would have faced had she lived
on plaintiff as the representative without also allowing the benefits of the discovery
rule that she would have been entitled to if her alleged injuries had not been so
serious as to lead to her death.

¶ 40 For these reasons, we conclude that the discovery rule found in section
13-212(a) of the Code is applicable to plaintiff’s wrongful death and survival action
alleging medical malpractice.

¶ 41 II

¶ 42 Having determined that the discovery rule tolls the statute of limitations in this
case, we now turn to whether, as defendants suggest, plaintiff’s complaint was still
untimely as a matter of law because it was filed more than two years after he was on
notice of defendants’ alleged medical negligence.

¶ 43 The two-year limitations period in section 13-212(a) of the Code “starts to run
when a person knows or reasonably should know of his injury and also knows or
reasonably should know that it was wrongfully caused.” Witherell, 85 Ill. 2d at 156.
When that occurs, “the burden is upon the injured person to inquire further as to the
existence of a cause of action.” Id. The term “wrongfully caused” does not mean
knowledge of a specific defendant’s negligent conduct or knowledge of the
existence of a cause of action. Knox College v. Celotex Corp., 88 Ill. 2d 407, 416
(1981). Instead, the term refers to that point in time when “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.” Id.

¶ 44 “The question of when a party knew or reasonably should have known both of
an injury and its wrongful cause is one of fact, unless the facts are undisputed and
only one conclusion may be drawn from them.” Henderson Square Condominium
Ass’n, 2015 IL 118139, ¶ 52. This court has emphasized, however, that “[i]n many,
if not most, cases the time at which an injured party knows or reasonably should
have known both of his injury and that it was wrongfully caused will be a disputed
question to be resolved by the finder of fact.” Witherell, 85 Ill. 2d at 156.

- 12 -
¶ 45 Plaintiff advances that he did not have a reasonable basis to know that there
might have been some wrongful conduct in this case until he received the first
medical expert’s report on May 2, 2011. He asserts that his complaint was therefore
timely filed on March 18, 2013, less than two years later.

¶ 46 In Knox College, cited by plaintiff, this court held that it was unable to
determine, as a matter of law, whether the plaintiff’s knowledge that the roof at
issue leaked almost as soon as it was completed would put a reasonable person on
notice as to a defect in the roof, since leaks of the particular type experienced by the
plaintiff at that particular stage might be common and easily corrected. Knox
College, 88 Ill. 2d at 417. Consequently, this court concluded that it was necessary
to remand to the trial court for a factual determination of when the statute of
limitations began to run. Id. at 429.

¶ 47 Likewise, in Nolan v. Johns-Manville Asbestos, 85 Ill. 2d 161 (1981), this court
refused to say, as a matter of law, whether the plaintiff had sufficient information of
his injury to place him on notice, even though he knew he had lung problems and,
later, pulmonary fibrosis years before he was medically diagnosed as having
asbestosis and then told by a doctor that it resulted from exposure to asbestos
material at work. Id. at 171-72. As in Knox College, this court remanded the case to
the trial court for a factual determination concerning the statute of limitations. Id. at
172.

¶ 48 In contrast, in Witherell, we held that the plaintiff knew or reasonably should
have known, as a matter of law, of the possibility that her injury had been caused by
actionable conduct of the defendant drug manufacturer more than five years prior
to her filing the lawsuit. Witherell, 85 Ill. 2d at 157. There, the plaintiff began to
experience problems with her leg shortly after taking the birth control pill
prescribed by her doctor and manufactured by the defendant Ortho. Id. at 156.
Plaintiff was hospitalized for this condition in 1967 and after her release asserted
that she experienced excruciating pain in her leg. Id. Plaintiff was told by her
mother and others that the pill could cause blood clots, and she voluntarily stopped
taking the pill for a month. Id. Plaintiff was again hospitalized in 1972 for problems
with her leg. Id. Although the plaintiff maintained that no doctor told her prior to
1976 that she had thrombophlebitis, the plaintiff averred in her affidavit that her
doctor told her in 1967 and in 1972 that she had blood clots in her leg. Id.

- 13 -
¶ 49 This court held in Witherell:

“Given the severe difficulties plaintiff asserts she was having with her legs,
the advice from her mother and others that the pill [manufactured by the
defendant] could cause blood clots, her statement that [her doctor] told her in
1967 and 1972 that she was having blood clots in her legs but that [another
doctor] was insisting the problems were muscular, it is *** inconceivable to us
that a reasonable person would not have realized, at least by the time of
plaintiff’s second hospitalization in 1972, that she may not have been receiving
proper diagnosis and treatment.” Id. at 156-57.

Consequently, we found that the plaintiff’s failure to raise any claim for the injuries
she suffered within the time allowed, after she knew or reasonably should have
known that her injury resulted from actionable conduct by the defendant drug
manufacturer, barred her action against that defendant from proceeding. Id. at 157.

¶ 50 In contrast to Witherell, under the circumstances in this case, we find that a
factual determination must be made as to whether plaintiff had sufficient
information two years prior to when he filed his complaint so as to trigger the
limitations period. We note the medical consulting firm first verbally reported to
plaintiff on April 21, 2011, that there had been negligent conduct, leading him to
file the separate lawsuit against the two other doctors on May 10, 2011, and the
instant lawsuit on March 18, 2013, less than two years later.

¶ 51 We are not persuaded by defendants’ reliance on plaintiff’s deposition
testimony in the other lawsuit for the proposition that the limitations period actually
began to run, as a matter of law, on the day of Kathryn’s death. Defendants’
argument is based on plaintiff’s testimony that while his mother was fairly old, his
impression was that she was doing okay and that she should have gotten better
treatment than she did. This testimony was in response to a question by plaintiff’s
counsel as to how he would explain to a jury the effect of his mother’s death. There
were no follow-up questions. Plaintiff’s testimony concerning his mother’s general
condition and that “she should have gotten better treatment” alone cannot support a
conclusion at this point in the litigation that he was on notice at the time of her
death that there may have been wrongdoing with her medical treatment. We
similarly reject defendants’ entirely undeveloped argument that plaintiff was
somehow on notice, apparently at the time he received the requested medical

- 14 -
 records on March 10, 2010, simply due to his status as an attorney with some
background in medical malpractice cases.

¶ 52 Defendants argue, alternatively, that plaintiff had sufficient information
concerning both Kathryn’s death and a potential wrongful cause no later than
February 26, 2010, the date that plaintiff ordered his mother’s medical records, and
that he did not file his complaint until three years later. It is entirely unclear from
the record, however, what prompted plaintiff to initially order his mother’s
complete medical records less than a year after she died and then to contact a
medical consulting firm. All such factual issues can be explored on remand.

¶ 53 Consequently, as in Knox College and Nolan, we reject defendants’ argument
that only one conclusion may be drawn from the record here. Instead, we conclude
that a factual determination must be made as to when the statute of limitations
began to run in this case. Based upon the record before us, all we know is that
plaintiff filed his lawsuit less than two years after receiving the initial verbal
medical expert report on April 21, 2011, and within the four-year statute of repose
contained in section 13-212(a) of the Code. Although plaintiff may not be
successful on remand, we cannot hold, as a matter of law, that the two-year statute
of limitations had expired prior to when plaintiff filed his complaint on March 18,
2013.

¶ 54 CONCLUSION

¶ 55 Accordingly, the judgment of the appellate court affirming the circuit court’s
dismissal of plaintiff’s complaint is reversed. This cause is remanded to the circuit
court for further proceedings consistent with this opinion.

¶ 56 Judgments reversed.

¶ 57 Cause remanded.

- 15 -