As any attorney who regularly represents plaintiffs in civil litigation will agree, statutes of limitations are a particularly worrisome defense. An otherwise meritorious case can be lost on that basis alone, which, of course, is a terrible outcome for the client. Moreover, in many, if not most instances, when an attorney loses a case to that defense he or she is at risk of an attorney malpractice claim. For both of these reasons, it is important for attorneys to keep abreast of possible pitfalls that could result in a successful statute of limitations defense.
One such pitfall arises from an Illinois Appellate Court opinion of which attorneys should be aware. It is Urchel v. Holy Cross Hospital, 82 Ill. App. 3d 1050, 403 N.E.2d 545 (1st Dist. 1980). In Urchel the plaintiff was riding in a car that was hit by a CTA bus. He was taken to the hospital where he was treated and diagnosed with a broken neck. When the hospital released the plaintiff, he was quadriplegic. His attorney obtained the medical records, filed suit against the CTA and eventually settled the case. Almost three years after the accident, during a deposition of a witness in another plaintiff’s case stemming from the same accident, Urchel’s attorney learned that in the emergency room the witness had observed Urchel sitting up on his own (obviously not quadriplegic). The attorney promptly filed a medical negligence case, claiming that he had only discovered that cause of action when he learned that Urchel was not quadriplegic upon arrival at the hospital. The defendant moved to dismiss the complaint on grounds that the statute of limitations had expired. The trial court granted the motion and the plaintiff appealed.
In medical negligence cases, the two year statute of limitations, then as well as now, begins to run when the plaintiff either "knew, or through the use of reasonable diligence, should have known… of the existence of the injury." 735 ILCS 5/13-212(a).1 Judicial construction of the phrase "should have known of the existence of the injury," soon established that the statute begins to run when the plaintiff should have known both that he or she had suffered an injury and that it was "wrongfully caused." See e.g., Roper v. Markle, 59 Ill.App. 3d 706,710, 375 N.E.2d 934 (1st Dist. 1978) (cited in Urchel, at 82 Ill.App.3d 1052).2
In sustaining the trial court’s dismissal of the complaint, the appellate court in Urchel held that, as a matter of law, the medical malpractice limitations period began to run when the plaintiff knew of his injury (the quadriplegia) and of the possibility that someone (the CTA) was at fault. The Court reasoned that beginning at that time, the plaintiff had two years to investigate any other possible wrongful causes. Expressly, the Court stated:
Here, the plaintiff was aware of his full injuries and of the possibility that the CTA was at fault. Although the plaintiff was allegedly not aware of the fact that different defendants, those involved in this case, were responsible for a portion of his injuries until a much later date, we do not believe this brings the case within the ambit of the discovery rule. Beginning with the time the plaintiff was injured and became aware of the possibility that someone was at fault, he was subject to constructive knowledge of the normal two year statute of limitations within which a suit for medical malpractice must be brought. During this period of time the plaintiff should have thoroughly investigated the circumstances of the accident and events occurring subsequent thereto to determine not only the facts necessary to his suit against the CTA but, in addition, to determine whether any other parties might have been at fault. The plaintiff had an opportunity to know he had a cause of action. Id. at 1052-53.
The implication from the First Appellate District Urchel opinion is at once apparent and troubling. If that is the law, then every attorney who represents a person injured in an auto accident case or slip and fall case where the client is hospitalized would be under a duty to "thoroughly investigate" the possibility of medical malpractice. Almost always, the attorney in such an accident case would obtain the medical records in order to establish the nature and extent of the injury and damages. At that point, under the reasoning of Urchel, one could argue that the duty to "thoroughly investigate" requires having a qualified expert review the medical records. As a practical matter, with Urchel as the law, many attorneys would feel compelled to do that anyway, rather than to trust their own evaluation of the likelihood of a meritorious medical negligence case. Indeed, it can be anticipated that in a substantial number of marginal cases attorneys would go so far as to hurriedly file a medical negligence complaint, just to make sure they did not wrongly let the statute of limitations expire.
At least at first glance, those predictable consequences would seem to be so burdensome and costly to so many people as to strongly suggest that Urchel should not be the law. And a few years later, one appellate court panel reached that same conclusion. In Snyder v. Judar, 132 Ill. App. 3d 116, 118, 477 N.E.2d 47 (1st Dist. 1985), another panel of the First Appellate District, in a case which is indistinguishable from Urchel as to the statute of limitations issue, held that the later discovery of medical negligence meant that there was a question of fact as to when the statute on the medical negligence claim began to run. Id at 117.
In Snyder, the plaintiff had suffered a hip injury in an automobile accident. He claimed that he later discovered that a failure to timely diagnose a hip fracture had aggravated the hip injury. The trial judge, relying on Urchel, granted the defendants’ statute of limitations motions. The appellate court, however, reasoned:
We believe that the allegations made by plaintiff in his complaint were sufficient to raise a factual question as to when he knew or should have known of the injuries which form the basis for this suit and as to when he knew or should have known that such injuries were wrongfully caused. While plaintiff knew on October 14, 1979, that he had received injuries in the automobile accident, the injuries which plaintiff allegedly sustained as a consequence of these defendants’ negligence were not evident. The injuries which plaintiff attributes to these defendants related to aggravation of the hip fracture which resulted from the automobile accident. Any aggravation of the original injuries caused by defendants’ negligence is clearly separate and distinct from the injuries suffered by plaintiff in the accident itself. Thus, we cannot say as a matter of law that merely because plaintiff knew or should have known of the original injuries and that they were wrongfully caused, that he knew or should have known of the subsequent injuries and that they were wrongfully caused. Rather, plaintiff’s allegations raise a factual issue as to when the limitations period was triggered. Snyder, 132 Ill.App.3d at 117.
In other words, in contrast to the Urchel reasoning that the plaintiff had knowledge of his full injuries when he was released from the hospital, the Snyder panel reasoned that the Plaintiff did not, at least as a matter of law, have knowledge of the aggravation of the original injury caused by the failure of the medical provider defendants to timely diagnose his hip fracture. The Court, in Snyder, then went on to expressly declare:
To the extent Urchel suggests that, as a matter of law, a person who receives medical treatment following a traumatic injury has two years from the date of the injury in which to file a medical malpractice action regarding negligent treatment of the injury, we disagree with the Urchel decision.
The problem, of course, for practitioners with knowledge of this clear conflict of authority within the appellate court and its implications for the statute of limitations issue in serious accident cases is: what do they do now? As an appellate decision at the same level of review, Snyder does not overrule Urchel. In re Marriage of Gutman, 232 Ill. 2d 145, 149 (2008). Both opinions stand equally as the law of our State on the issue. The Illinois Supreme Court, unfortunately, has not resolved the conflict. Indeed Urchel was cited by the Illinois Supreme Court a year later in Witherell v. Weimer, 85 Ill. 2d 146, 156, 421 N.E.2d 869 (1981), as one of the cases supporting the Court’s construction of the term "injury" in the discovery rule to mean knowledge that it was wrongfully caused. And Urchel has been positively cited as recently as 2002. Hoffman v. Orthopedic Systems, Inc., 327 Ill. App. 3d 1004, 1010 (1st Dist. 2002)
In a situation such as this, it is hard not to engage in the risky business of trying to predict what the Illinois Supreme Court will do when the conflict between the Urchel and Snyder opinions comes before it in another similar statute of limitations case. As indicated earlier, the public policy reasoning of the Snyder case, at first glance, seems compelling. One would think that the Court would look hard for a solution which would avoid the significantly increased burdens on litigants and the court system which the Urchel reasoning would cause. See Snyder, 132 Ill.App.3d at 118. On the other hand, the Supreme Court may see the reasoning of the appellate court in Snyder as putting quite a strain on the definition of the discovery rule which the Court has long espoused, and on the public policy behind it.
The Snyder analysis treated the aggravation of the hip injury caused by the treating physicians’ errors as a separate injury from the hip injury sustained in the auto accident. That analysis seems quite similar to the interpretation of the discovery rule employed by the appellate court in the Nolan case. 85 Ill.2d at169. There the appellate court had concluded that the statute should not begin to run until the plaintiff should have known of the negligence of the defendants making the motion to dismiss. The Supreme Court, however, rather pointedly rejected that interpretation, explaining that starting the statute of limitations only when the plaintiff should have known about the negligence of the defendants in question would be contrary to the public policy for having such a limitation—which is to compel a party to bring claims before evidence is lost or becomes stale, and to otherwise prevent delay in bringing claims. Id., at 170-71. Instead of the appellate court view that the statute should be triggered by knowledge of the "defendant’s negligence," the Supreme Court adopted the view that it would be triggered by knowledge of the injury and that it was "wrongfully caused."
As one would suspect, it is not possible to predict with any reliability how the Supreme Court will resolve the Urchel/Snyder conflict if and when it has the opportunity. There are significant public policy arguments in favor of both the Urchel and the Snyder positions. It may be that the Court will develop some middle ground resolution. For example, there are many cases which have addressed the issue of whether a plaintiff exercised "reasonable diligence" to learn of a potential medical negligence claim (the "should have known prong of the discovery rule"). E.g., Hoffman, 327 Ill. App. 3d 1004, 1009 (citing cases). The Court ultimately may hold that reasonable diligence in an Urchel/Snyder kind of case only requires that initially the plaintiff, and by extension his or her attorney, use the care of a reasonably careful layperson in reviewing the medical records and any other evidence known to the plaintiff. If a reasonable layperson reviewing that information would ordinarily suspect that medical care or treatment may have been a contributing cause of the injuries, then reasonable diligence would require review by a medical consultant.3 Undoubtedly, there are a myriad of other possible ways in which the Court may resolve the Urchel-Snyder conflict. So this particular middle ground approach admittedly is quite speculative.
Until some further reviewing court opinions come to guide us, it would seem that, in order to reasonably preserve the statute of limitations for a potential medical negligence case (and minimize the attorney malpractice liability risk), attorneys handling serious accident cases where the client ends up receiving hospital care, should at least follow the above described middle ground approach. They should carefully examine the records and probe for information which the client and his or her family have in order to determine whether there is a reasonable basis, from a layperson’s perspective, to suspect that the initial injury may have been aggravated by something that happened during treatment; or that treatment may have caused some additional injury. This would be good practice anyway because if there is medical negligence there may be significant additional insurance to help pay any settlement or award. If there is some basis to suspect medical treatment causation, then the attorney should explain the expert medical consultant option to his client and that the client would have to pay for the review and consultation (unless the attorney is comfortable paying for it, or advancing the funds). If the client chooses not to obtain the review, the attorney, of course, should adequately document the explanation of the option and the client’s decision. While this approach cannot guarantee that the harsh requirements of Urchel will be satisfied, it seems to be a reasonable alternative to the extremely onerous and costly alternative of having a medical expert review all serious accident cases.
Unfortunately, it does not make sense for practitioners to simply choose to follow the ruling in Snyder in the hope that the courts will follow it in future cases. As noted above, there is too great a risk that the Supreme Court will overrule it. However, even more compelling from a practical perspective, is the fact that Snyder only held that there was a question of fact to be decided by a jury as to whether the statute began to run at or near the time of the accident or at the later time when the plaintiff found out about medical error. If an attorney has an opportunity to avoid having the jury decide an extra issue which could cost his or her client an otherwise good case, it seems obvious that he or she should seize the opportunity. If at all possible, any potential medical negligence claim should be promptly investigated and filed within two years of the accident (or obtaining the records), in order to avoid the statute of limitations issue.
It is somewhat surprising that the Urchel and Snyder opinions have been in existence for nearly twenty-five years and no other published cases in Illinois have challenged either side of the conflict. However, sooner or later, an Urchel/Snyder statute of limitations issue is bound to be addressed again. It would be preferable not to be an attorney on the wrong side of the Urchel holding when that situation recurs.
1 At the time of the Urchel case, the statute was Ill. Rev. Stats., 1975, ch. 83. Par.22.1
2 A year after Urchel the Illinois Supreme Court definitively announced that, "the statute starts to run when a person knows or reasonably should know of his injury and also knows or should know that it was wrongfully caused. Witherell v. Weimer, 85 Ill. 2d 146, 156, 421 N.E.2d 869 (1981); See also, Nolan v. Johns-Manville Asbestos, 85 Ill. 2d 161, 171, 421 N.E.2d 864 (1981).
3 This article does not address the situation where the plaintiff can prove that medical care providers have affirmatively and fraudulently misrepresented to the plaintiff or in the medical records that medical treatment was not a cause of injury. In those cases the statute of limitations, and even a statute of repose, may be extended because of the fraudulent concealment. 735 ILCS 5/13-215. However, affirmative misrepresentation generally is a pre-requisite for that statutory exception, at least in cases against a hospital. Hauk v. Reyes, 246 Ill.App.3d 187, 616 N.E.2d 358 (3d Dist. 1993). Reasonable diligence does not normally require a plaintiff to see through a fraud.
Tom Knight is a partner in the Wheaton law firm of Walsh, Knippen, Knight and Pollock. He has been an active trial attorney for over 38 years, the first 20 as a state and federal criminal prosecutor, and the last 18 as a civil litigator. The largest concentration of Tom’s civil litigation work has been representing plaintiffs in medical negligence cases. He has tried and settled many medical negligence cases, and other kinds as well. He has practiced in the state court system in Du Page, Will, Kane, Cook, Kendall, Grundy, and Peoria Counties; and in the federal courts in Chicago. On occasion, he has tried medical negligence cases in other states as well.
Tom is this year’s Chairperson of the Civil Practice Committee of the DCBA. In addition to being a long-standing member of the DCBA, he is a member of the American Association for Justice (AAJ) and an active participant in its National Medical Malpractice Internet Forum. He also is a member of the ABA, the ISBA and the Illinois Trial Lawyers Association (ITLA), and its Medical Malpractice Committee.
Anne Knight is a Staff Attorney for the DuPage County Circuit Court and is a 2008 graduate of Thomas Jefferson School of Law.
Both Michelle Grotto and Adam Kruse are associates of the law firm of Walsh, Knippen, Knight & Pollock, Chtd. Michelle is a 2008 graduate of Northern Illinois University College of Law, and Adam Kruse graduated from the University of Missouri-Columbia in 2004.