Moon v. Rhode

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Supreme Court Date: 2017.01.25
14:56:42 -06'00'

Moon v. Rhode, 2016 IL 119572

Caption in Supreme RANDALL W. MOON, Appellant, v. CLARISSA F. RHODE et al.,
Court: Appellees.

Docket No. 119572

Filed September 22, 2016
Rehearing denied November 21, 2016

Decision Under Appeal from the Appellate Court for the Third District; heard in that
Review court on appeal from the Circuit Court of Peoria County, the Hon.
Richard D. McCoy, Judge, presiding.

Judgment Judgments reversed.
Cause remanded.

Counsel on Michael T. Reagan, of Ottawa, and Randall W. Moon, pro se, of
Appeal Washington, Pennsylvania, for appellant.

Craig L. Unrath, Nicholas J. Bertschy, and J. Matthew Thompson, of
Heyl, Royster, Voelker & Allen, of Peoria, and Karen Kies DeGrand
and Richard B. Foster, of Donohue Brown Mathewson & Smyth LLC,
of Chicago, for appellees.
 Jeffrey S. Hebrank, Noel L. Smith, Patrick W. Stufflebeam,
Christopher G. Allen, and Alemayehu A. Ayanaw, of HelperBroom
LLC, of Edwardsville, for amicus curiae Illinois Association of
Defense Trial Counsel.

Richard R. King, Robert John Kane, and Sherri DeVito, of Chicago,
for amicus curiae Illinois State Medical Society and American
Medical Association.

Justices 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

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 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 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.
¶ 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

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

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 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, 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

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¶ 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 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 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:

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 “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 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

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 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 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).
¶ 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.

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

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 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: “If 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 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.

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¶ 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 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.
¶ 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.

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¶ 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.
¶ 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.

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¶ 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 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.

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