Illinois Appellate Court Affirms Double Whammy Dismissal of Medical Negligence Case Based on Statute of Limitations and Statute of Repose

The Illinois First District Appellate Court recently affirmed a Cook County Circuit Court’s dismissal of a medical negligence action as time-barred by both the statute of limitations and the statute of repose. In reaching its decision, the appellate court relied upon long-standing Illinois case law as to when a medical negligence action accrues in a wrongful death action. 

In January 2017, plaintiff Joseph M. Osten (Osten), surviving husband of Gail Osten (decedent), filed a Complaint alleging medical negligence.  In the Complaint, Osten alleged that defendant physician, one of decedent’s treating doctors, ordered a screening mammogram on April 21, 2011, which was subsequently conducted by defendant radiologist technician and interpreted by defendant radiologist.

According to the Complaint, a non-party technologist noticed a slightly inverted left nipple with a brown discharge, which decedent specifically denied she had ever seen. The mammogram revealed a bilateral benign calcification with no masses or other findings suggestive of malignancy. The results of the mammogram were not transmitted to the defendant physician, the screening mammogram was not converted to diagnostic mammography, and no ultrasound tests were ordered.   Decedent was diagnosed with breast cancer in December 2011 and passed away in March 2015.

Plaintiff’s Complaint asserted five counts of professional negligence and wrongful death against defendants, alleging negligence in (1) failing to convert the screening mammogram to a diagnostic mammography, (2) failing to perform an ultrasound, and (3) failing to recognize the risk factors for breast cancer of an inverted nipple and brownish discharge.

Defendants filed motions to dismiss plaintiff’s Complaint, asserting plaintiff’s claims were time-barred by both the two-year statute of limitations and the four-year statute of repose applicable to medical negligence claims. Defendants contended the statute of limitations began to run on decedent’s medical negligence claims in April 2011, when the screening mammogram was performed or, at the latest, in December 2011, when she was diagnosed with breast cancer.  Defendants argued that, under either date, the statute of limitations expired on the medical negligence claims no later than December 2013.

Defendants also asserted the four-year repose period on any medical negligence claims began to run on the date of the alleged negligence, and therefore the repose period lapsed on April 21, 2015. Defendants further argued the plaintiff could not bring a wrongful death claim premised on defendants’ alleged medical negligence because the statute of limitations on those claims expired before decedent’s death in March 2015.

In response, the plaintiff argued his Complaint was timely because it was filed within two years of decedent’s death, the same date plaintiff contended was the date the statute of limitations and statute of repose began to run on his wrongful death claims. Plaintiff argued defendants advanced no facts to show that in December 2011, decedent knew or reasonably should have known of defendants’ alleged negligence, making the date of death the only relevant date for measuring the timeliness of his claims.

The appellate court held that:

“[i]n 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). Claims under the Wrongful Death Act must be commenced within two years of the person’s death. 740 ILCS 180/2 (West 2016).  Under the Wrongful Death Act, there can be no recovery ‘where the decedent once had a cause of action, but was not entitled to maintain that action and recover damages at the time of [her] death.’ Lambert v. Village of Summit, 104 Ill. App. 3d 1034, 1037-38 (1982).

With respect to the statute of repose issue, the appellate court held that the Illinois Supreme Court:

has observed that “the statute of repose is triggered by the ‘act or omission or occurrence’ causing an injury, rather than by the patient’s discovery of the injury,” and that “the statute of repose cannot start to run until the last date of negligent treatment.” Cunningham v. Huffman, 154 Ill. 2d 398, 405-06 (1993); see also Kanne v. Bulkley, 306 Ill. App. 3d 1036, 1040 (1999) (“In failure-to-diagnose cases *** where a plaintiff blames a defendant’s omission for his injury, the omission at issue is deemed to have occurred on the date defendant rendered his final treatment.”).

Based upon the above case law, the appellate court found that both the statutes of limitations and repose began to run either in April 2011 or, based on the allegations in plaintiff’s Complaint, no later than December 2011.

The Osten court noted multiple times that its decision was based solely upon the allegations contained in plaintiff’s original Complaint and “at no point did plaintiff seek leave to amend his Complaint to allege any additional facts to defeat the motion to dismiss.”  The opinion goes so far as to point out that “[p]laintiff failed to allege a single fact that might allow an inference that defendants provided [decedent] with any treatment—negligent or otherwise—after April 21, 2011.” 

Presumably, the Court was insinuating plaintiff could have potentially defeated the motions to dismiss if he had shown an “ongoing course of continuous negligent medical treatment”, which the Illinois Supreme Court found in Cunningham v. Huffman, 154 Ill. 2d 398, 609 N.E.2d 321 (1993), could extend the start date for the statute of repose.

The Cunningham court concluded the statute of repose does not bar a plaintiff's action if s/he can demonstrate an ongoing course of continuous negligent medical treatment. To prove such, the plaintiff must demonstrate: (1) the existence of a continuous and unbroken course of negligent treatment, and (2) the treatment was so related as to constitute one continuing wrong. Thus, under Cunningham, not only does there need to be treatment, but the treatment must be negligent, a continuous and unbroken course, and so related as to constitute one continuing wrong. Whether plaintiff could have asserted facts to support such an argument is unknown.

Although the Osten decision does not plow any new ground for calculating when Illinois’ statutes of limitations and repose issues begin to run, a consistent approach and analysis by the Illinois appellate courts should be reassuring to our healthcare industry clients on what will undoubtedly continue to be a frequently litigated issue in medical negligence cases.

Osten v. Northwestern Memorial Hospital, 2018 IL App (1st) 172072