{ "id": 3547883, "name": "ILENE M. ARNDT, Indiv. and as Special Adm'r of the Estate of James Arndt, Deceased, Plaintiff-Appellant, v. RESURRECTION HOSPITAL, Defendant (Nathaniel McParland, Defendant-Appellee)", "name_abbreviation": "Arndt v. Resurrection Hospital", "decision_date": "1987-11-03", "docket_number": "No. 87\u20140322", "first_page": "209", "last_page": "215", "citations": [ { "type": "official", "cite": "163 Ill. App. 3d 209" } ], "court": { "name_abbreviation": "Ill. App. Ct.", "id": 8837, "name": "Illinois Appellate Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "502 N.E.2d 1", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "149 Ill. App. 3d 371", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3457712 ], "weight": 2, "pin_cites": [ { "page": "375-76" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/149/0371-01" ] }, { "cite": "467 N.E.2d 652", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "126 Ill. App. 3d 779", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3596449 ], "pin_cites": [ { "page": "783" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/126/0779-01" ] }, { "cite": "299 N.E.2d 521", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "12 Ill. App. 3d 559", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2856133 ], "pin_cites": [ { "page": "567" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/12/0559-01" ] }, { "cite": "92 Ill. 2d 567", "category": "reporters:state", "reporter": "Ill. 2d", "weight": 2, "opinion_index": 0 }, { "cite": "439 N.E.2d 20", "category": "reporters:state_regional", "reporter": "N.E.2d", "weight": 2, "year": 1982, "opinion_index": 0 }, { "cite": "108 Ill. App. 3d 525", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3009575 ], "weight": 2, "year": 1982, "pin_cites": [ { "page": "530" }, { "page": "533" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/108/0525-01" ] }, { "cite": "72 Ill. 2d 582", "category": "reporters:state", "reporter": "Ill. 2d", "opinion_index": 0 }, { "cite": "382 N.E.2d 321", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1979, "opinion_index": 0 }, { "cite": "65 Ill. App. 3d 266", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3328040 ], "weight": 2, "year": 1979, "pin_cites": [ { "page": "270" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/65/0266-01" ] }, { "cite": "380 N.E.2d 1376", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1978, "opinion_index": 0 }, { "cite": "64 Ill. App. 3d 259", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 3332580 ], "weight": 3, "year": 1978, "pin_cites": [ { "page": "268" }, { "page": "270" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/64/0259-01" ] }, { "cite": "286 N.E.2d 619", "category": "reporters:state_regional", "reporter": "N.E.2d", "opinion_index": 0 }, { "cite": "6 Ill. App. 3d 983", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2466257 ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/6/0983-01" ] }, { "cite": "355 N.E.2d 686", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1972, "opinion_index": 0 }, { "cite": "42 Ill. App. 3d 330", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2642186 ], "year": 1972, "opinion_index": 0, "case_paths": [ "/ill-app-3d/42/0330-01" ] }, { "cite": "382 N.E.2d 784", "category": "reporters:state_regional", "reporter": "N.E.2d", "year": 1976, "opinion_index": 0 }, { "cite": "73 Ill. 2d 58", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5441565 ], "year": 1976, "opinion_index": 0, "case_paths": [ "/ill-2d/73/0058-01" ] } ], "analysis": { "cardinality": 597, "char_count": 13478, "ocr_confidence": 0.783, "pagerank": { "raw": 1.7399853841061967e-07, "percentile": 0.7068807872582533 }, "sha256": "99c086eea378616aade48e188620d8a1ddbdc1344b99043a49935ea410bc95e2", "simhash": "1:322a0cace910303c", "word_count": 2204 }, "last_updated": "2023-07-14T17:50:46.695850+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "ILENE M. ARNDT, Indiv. and as Special Adm\u2019r of the Estate of James Arndt, Deceased, Plaintiff-Appellant, v. RESURRECTION HOSPITAL, Defendant (Nathaniel McParland, Defendant-Appellee)." ], "opinions": [ { "text": "JUSTICE BILANDIC\ndelivered the opinion of the court:\nPlaintiff appeals from orders dismissing her second amended complaint against defendant Dr. McFarland, with prejudice, on the ground that it was time barred, and denying her motion to reconsider that dismissal.\nPlaintiff brought a wrongful death action alleging medical malpractice against defendant Dr. McFarland and others not involved in this appeal.\nThe plaintiff\u2019s decedent, James Arndt, was hospitalized at Resurrection Hospital from January 7, 1983, until the time of his death on January 18,1983.\nOn December 21, 1984, plaintiff filed a complaint against defendant Resurrection Hospital claiming that her husband died as a result of negligent care and treatment by the hospital while he was a patient. Dr. McFarland was named as a \u201crespondent in discovery\u201d in that complaint pursuant to section 2 \u2014 402 of the Code of Civil Procedure. Ill. Rev. Stat. 1985, ch. 110, par. 2\u2014402.\nPlaintiff took Dr. McFarland\u2019s discovery deposition on May 14, 1985, and learned, for the first time, that his conduct was actionable. On September 18, 1985, with leave of court and without objection, plaintiff filed an amended complaint naming Dr. McFarland as a party defendant. Her amended complaint alleged that Dr. McFarland operated on the decedent without complete and adequate knowledge of decedent\u2019s condition, and that Dr. McFarland\u2019s negligence resulted in the death of the decedent.\nOn January 22, 1986, plaintiff filed a second amended complaint with leave of court and without objection. The second amended complaint contained an additional paragraph alleging that plaintiff did not learn of Dr. McFarland\u2019s negligence until his discovery deposition was taken on May 14, 1985.\nDefendant moved to dismiss plaintiff\u2019s second amended complaint on the ground that it was time barred. The trial court granted the motion to dismiss, with prejudice, because the action was filed more than two years after decedent\u2019s death (January 18, 1983); the discovery provision in section 13 \u2014 212 of the Code of Civil Procedure, (herein after the Medical Malpractice Limitations Act) does not toll the statute of limitations in a medical malpractice action for wrongful death (Ill. Rev. Stat. 1985, ch. 110, par. 13\u2014212); and because Dr. McFarland was not made a defendant within six months after being named a \u201crespondent in discovery\u201d pursuant to section 2 \u2014 402 of the Code of Civil Procedure (Ill. Rev. Stat. 1985, ch. 110, par. 2\u2014402).\nPlaintiff\u2019s motion to reconsider was denied. This appeal followed.\nThe essential dates and events are:\nJanuary 18,1983: Date of death.\nDecember 21, 1984: Complaint filed against the hospital and Dr. McFarland named as a respondent in discovery.\nMay 21,1985: Plaintiff takes Dr. McFarland\u2019s discovery deposition and learns of his actionable conduct.\nSeptember 18,1985: With leave of court, plaintiff filed amended complaint naming Dr. McFarland as a defendant.\nJanuary 22,1986: With leave of court, plaintiff filed second amended complaint alleging date of discovery of negligence.\nThe issues presented are: (1) whether the discovery rule tolls the statute of limitations in a medical malpractice action for wrongful death; and (2) whether naming Dr. McFarland a \u201crespondent in discovery\u201d pursuant to section 2 \u2014 402 of the Code of Civil Procedure can shorten the limitation period.\nI\nPlaintiff\u2019s decedent died on January 18, 1983. Dr. McFarland was named a party defendant on September 18, 1985, which is more than two years after the date of death. The Wrongful Death Act provides that every death action \u201cshall be commenced within two years after the death of such person.\u201d Ill. Rev. Stat. 1985, ch. 70, par. 2(c).\nPlaintiff contends that the two-year limitations period of the Wrongful Death Act is not beyond judicial construction. (See Wilbon v. D. F. Bast Co. (1978), 73 Ill. 2d 58, 382 N.E.2d 784; Praznik v. Sport Aero, Inc. (1976), 42 Ill. App. 3d 330, 355 N.E.2d 686; Kenney v. Churchill Truck Lines, Inc. (1972), 6 Ill. App. 3d 983, 286 N.E.2d 619.) Plaintiff further argues that the Medical Malpractice Limitations Act (Ill. Rev. Stat. 1985, ch. 110, par. 13\u2014212) should be applied to a wrongful death action based on medical malpractice and, therefore, the statute of limitations does not begin to run until she discovered the negligence of Dr. McFarland on May 14, 1985. Dr. McFarland was named a defendant approximately four months thereafter, on September 18, 1985, which is well within the two-year statute of limitations.\nAlmost simultaneously, two opinions were released on this subject in two separate districts of this court. On September 25, 1978, the Second District released its opinion in Fure v. Sherman Hospital (1978), 64 Ill. App. 3d 259, 380 N.E.2d 1376, which supports the position taken by plaintiff. Two days later, on September 27, 1978, the First District released its opinion in Greenock v. Rush Presbyterian St. Luke\u2019s Hospital (1978), 65 Ill. App. 3d 266, 382 N.E.2d 321, appeal denied (1979), 72 Ill. 2d 582, which benefits the defendant.\nApproximately four years later, the conflicting opinions of Fure and Greenock became the central issue in Coleman v. Hinsdale Emergency Medical Corp. (1982), 108 Ill. App. 3d 525, 530, 439 N.E.2d 20, appeal denied (1982), 92 Ill. 2d 567:\n\u201cGreenock and Fure are the only Illinois cases which apply the section [13 \u2014 212 Code of Civil Procedure] limitations provisions in a wrongful death case. These two cases approach section [13 \u2014 212 of the Code of Civil Procedure] differently and reach different conclusions as to what event starts the running of the section [13 \u2014 212 Code of Civil Procedure] two-year limitations period.\u201d\nGreenock concludes that under section 21.1 (section 13 \u2014 212 of the Code of Civil Procedure) of the Limitations Act, \u201cIt is clear that the event which commences the statute running is the claimant\u2019s knowledge of the death.\u201d (Greenock, 65 Ill. App. 3d at 270.) Applying this construction of the discovery rule, the trial court decided that since the plaintiff was at her husband\u2019s bedside when he died, she was aware of the date of his death hnd the statute of limitations started to run.\nDr. McFarland was made a defendant more than two years later, so the trial court dismissed plaintiff\u2019s action. The Fure court said:\n\u201c[T]he question posed by the case at hand is whether the discovery rule can, in certain instances, apply to a wrongful death action where the date of death is known and does not have to be discovered, but the negligence or tort behind that death is not discovered until sometime after the date of death. (The \u2018certain instances\u2019 of course being those in which the failure to learn of the negligent aspect of the death was reasonably justifiable under the circumstances.)\u201d (Fure, 64 Ill. App. 3d at 268.)\nThe court further stated:\n\u201cIn our opinion there should be no barrier to the application of the \u2018discovery\u2019 rule based on the ultimate tragedy of death where the circumstances of the death would have permitted an extension of the time limitation for the mere wounding or injury of the person and we hold that the fact of death does not per se foreclose the use of the discovery doctrine.\u201d (Fure, 64 Ill. App. 3d at 270.)\nThus, the Coleman court was faced with the choice of following Greenock, which holds that knowledge of the fact of death under the discovery rule triggers the running of the statute of limitations, or following Fure, which holds that knowledge of the fact of defendant\u2019s negligence commences the running of the statute of limitations. The conflict between Greenock and Fure was resolved in Coleman v. Hinsdale Emergency Medical Corp. (1982), 108 Ill. App. 3d 525, 533, 439 N.E.2d 20, appeal denied (1982), 92 Ill. 2d 567:\n\u201cOur analysis of the various statutes of limitations and the case law leads us to conclude that the discovery rule as contained in section [13 \u2014 212 of the Code of Civil Procedure] is applicable in a wrongful death case. Moreover, in a wrongful death case, the plaintiff has two years after the discovery that the death was wrongfully caused in which to file her action, regardless of whether the discovery had occurred prior to the expiration of the traditional two-year period of section 14.\u201d (Emphasis added.)\nA petition for leave to appeal was denied by our supreme court in November 1982. Having declined to review Coleman, the supreme court has granted its tacit approval. Under the unique circumstances of the Coleman case, \u201c[t]he proper principle to be applied here is that denial by the Supreme Court of a petition for leave to appeal *** is an approval of the decision, or of the result reached, although not necessarily an approval of the reasons expressed by the appellate court.\u201d Corbett v. Devon Bank (1973), 12 Ill. App. 3d 559, 567, 299 N.E.2d 521.\nWe therefore conclude that the application of the discovery rule starts the running of the statute of limitations on May 14, 1985, when plaintiff discovered the fact of the defendant\u2019s negligence which contributed to the death of her husband, and not on the date she discovered the fact of the death of her husband. Based on this interpretation, plaintiff\u2019s action was commenced well within the two-year limitations period.\nII\nIn her initial complaint filed on December 21, 1984, within two years of her husband\u2019s death, plaintiff sued Resurrection Hospital and named Dr. McFarland as a \u201crespondent in discovery\u201d pursuant to section 2 \u2014 402 of the Code of Civil Procedure. (Ill. Rev. Stat. 1985, ch. 110, par. 2\u2014402.) On September 18, 1985, with leave of court, Dr. McFarland was made a party defendant. Approximately nine months had elapsed from the initial filing to the date McFarland was added as a defendant. The trial court held that section 2 \u2014 402 required that Dr. McFarland be added as a defendant within six months from the initial filing where he was named a \u201crespondent in discovery.\u201d Therefore, plaintiff\u2019s action against Dr. McFarland is time barred.\nWe must now determine, on the basis of the facts of this case, whether plaintiff\u2019s election to name Dr. McFarland as a \u201crespondent .in discovery\u201d rather than as a party defendant, at the time of the initial filing, required that Dr. McFarland be made a party defendant within six months thereafter.\nMedical malpractice actions have become a matter of public concern partly due to the spiraling costs of medical malpractice insurance. The enactment of section 2 \u2014 402 was a legislative effort to reduce those costs by providing attorneys with a means to file such suits without \u201cnaming everyone in sight as a defendant,\u201d because it was believed that the designation as a defendant was a contributing factor. Section 2 \u2014 402 procedures are optional \u201cand the plaintiff\u2019s attorney still has the option to name persons as defendants, rather than as respondents in discovery at the outset.\u201d Clark v. Brokaw Hospital (1984), 126 Ill. App. 3d 779, 783, 467 N.E.2d 652.\nWe concluded that section 13 \u2014 212, by application of the discovery rule, extended the time of the plaintiff to sue Dr. McFarland to May 14, 1987 (two years after discovery of defendant\u2019s negligence). Has the enactment of section 2 \u2014 402 effectively withdrawn the benefit of the discovery rule? Strict application of section 2 \u2014 402 requires that Dr. McFarland be made a defendant by June 21, 1985 (within six months after being named a \u201crespondent in discovery\u201d). Having added Dr. McFarland as a defendant on September 18, 1985, plaintiff\u2019s action would be barred. Can section 2 \u2014 402 be applied to shorten the statute of limitations?\nThis question was answered in Flores v. St. Mary of Nazareth Hospital (1986), 149 Ill. App. 3d 371, 502 N.E.2d 1:\n\u201cPlaintiffs generally would be unlikely to avail themselves of this section if use of the section subjects them to the severe penalty of having their actions barred within six months, even though the statutory limitation periods for the underlying causes of action have not run. If plaintiffs elect not to use the procedures established in section 2 \u2014 402, the section will entirely fail to achieve the legislature\u2019s objectives. ***\n*** We believe that the six-month period must be construed only to extend, and never to foreshorten, the limitation period. Section 2 \u2014 402 is irrelevant to motions to add defendants made within the limitations period for a cause of action, even if the plaintiff previously named the new defendant as a respondent in discovery.\u201d Flores, 149 Ill. App. 3d at 375-76.\nWe therefore conclude that under the facts of this case, section 2 \u2014 402 of the Code of Civil Procedure does not shorten the statute of limitations.\nAccordingly, the orders of the circuit court of Cook County dismissing plaintiff\u2019s second amended complaint and denying her motion to reconsider that dismissal are reversed and this cause is remanded.\nReversed and remanded.\nSCARIANO, P.J., and STAMOS, J., concur.\nFormerly section 21.1 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 22.1).", "type": "majority", "author": "JUSTICE BILANDIC" } ], "attorneys": [ "Keith L. Young, of Lambruschi, Young & Associates, and Sidney Z. Karasik, both of Chicago, for appellant.", "Robert Marc Chemers, John V. Smith II, and Robert J. Franco, all of Pretzel & Stouffer, Chartered, of Chicago, for appellee." ], "corrections": "", "head_matter": "ILENE M. ARNDT, Indiv. and as Special Adm\u2019r of the Estate of James Arndt, Deceased, Plaintiff-Appellant, v. RESURRECTION HOSPITAL, Defendant (Nathaniel McParland, Defendant-Appellee).\nFirst District (2nd Division)\nNo. 87\u20140322\nOpinion filed November 3, 1987.\nKeith L. Young, of Lambruschi, Young & Associates, and Sidney Z. Karasik, both of Chicago, for appellant.\nRobert Marc Chemers, John V. Smith II, and Robert J. Franco, all of Pretzel & Stouffer, Chartered, of Chicago, for appellee." }, "file_name": "0209-01", "first_page_order": 231, "last_page_order": 237 }