## Facts

- Kathryn Moon (age 90) was hospitalized for rectal prolapse in May 2009 and underwent surgery; she developed serious postoperative complications and died on May 29, 2009.
- A CT scan of her chest and abdomen was ordered on May 23, 2009; Dr. Clarissa F. Rhode interpreted the scans on May 24, 2009.
- Randall W. Moon, the decedent’s son and estate executor, obtained the complete hospital records, including CT scans, in March 2010.
- In April–May 2011, a medical consultant opined that the treating surgeons were negligent; Moon sued the surgeons in May 2011.
- In February 2013, a radiologist re-reviewed the CT scans and opined that Dr. Rhode failed to identify findings and that the failure caused or contributed to injury and death.
- In March 2013, Moon sued Dr. Rhode and her radiology group under the Wrongful Death Act and the Survival Act for negligent interpretation of the May 24, 2009 CT scans.
- The circuit court dismissed under section 2-619 as untimely; the appellate court affirmed, holding the Wrongful Death Act’s two-year limitations period ran from the date of death and was not subject to the discovery rule.

## Issues

1. Whether the judicial discovery rule applies to the two-year limitations period for wrongful-death and survival actions arising from medical malpractice, so that accrual depends on when the plaintiff knew or should have known of wrongful causation rather than the date of death.
2. If the discovery rule applies, whether the complaint against the radiologist was time-barred as a matter of law based on the plaintiff’s earlier possession of medical records and earlier pursuit of claims against other providers.

## Decision

- The Illinois Supreme Court reversed the appellate and circuit courts and remanded.
- The Court held the judicial discovery rule applies to wrongful-death and survival actions arising out of patient care.
- The Court held timeliness could not be resolved on the pleadings because when the plaintiff knew or should have known of the radiologist’s alleged negligence presented a factual question.
- The Court concluded dismissal was improper where the suit was filed within two years of the first expert opinion specifically implicating the radiologist and within the applicable four-year medical-malpractice repose period.

## Legal Principles

- For wrongful-death and survival claims based on medical malpractice, the two-year limitations period accrues when the claimant knew or reasonably should have known of the injury (death) and that it was wrongfully caused.
- Statutory language requiring suit “within 2 years after the death” does not, by itself, bar application of the judicial discovery rule in medical-malpractice-based wrongful-death claims.
- The discovery-based limitations period operates within, and is constrained by, the separate four-year statute of repose for actions arising out of patient care.
- Knowledge of possible negligence by one health-care provider does not, as a matter of law, establish knowledge that another provider was also negligent.
- Accrual under the discovery rule typically presents a question of fact and is generally not suitable for disposition on a motion to dismiss.

## Conclusion

The Illinois Supreme Court held that medical-malpractice wrongful-death and survival actions are subject to the judicial discovery rule and that accrual and inquiry notice as to a particular defendant are ordinarily factual questions, requiring reversal of a pleading-stage dismissal where the plaintiff plausibly filed within the discovery-based period and within the medical-malpractice repose limit.


Moon v. Rhode, 67 N.E.3d 220 (Ill. 2016)