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Statute of Limitation Updates in Medical Cases

By Laura A. Petersen

Introduction

Statutes of limitation create predictability by ending liability after a period of time.  Section 13-212(a) of the Illinois Code of Civil Procedure establishes a two-year statute of limitations and four-year statute of repose in cases arising out of patient care.  Three recent decisions show that courts may apply a shorter statute of limitations depending on the type of claim presented.   

Section 13-212(a) applies to Nursing Home Care

In Radwill v. Manor Care of Westmont, 2013 IL App (2d) 120957 (2nd Dist. 03/22/13) Plaintiff sued a nursing home in three counts alleging resident’s personal injury and wrongful death.  Because the statute of limitations was a potential issue, plaintiff also sued for injury and death in a novel breach of contract claim which normally was governed by a ten-year statute of limitations.

After multiple proceedings in the trial court and appellate court, the final ruling saw that all claims were dismissed.  Actions for injury to and death of a nursing home resident would be governed by the two year statute of limitations and four year statute of repose normally found in medical malpractice actions. The two and four year limitations periods applied even to the plaintff’s unusual contract action, which essentially was nothing more that a tort action for allegedly poor medical care.

Federal Tort Claims Act’s Shorter Statute of Limitations Applies Instead of Section 13-212(a)

Arteaga v. United States, 711 F.3d 828 (7th Cir. 04/01/13), involved a medical malpractice action against Erie Family Health Center, a federally funded health center.  There plaintiff was suing for her child’s injuries which occurred during her birth in 2004.  An attorney told the plaintiff that pursuant to 735 ILCS 5/13-212(b) she must file suit within eight years because her injured child was a minor.  However, the health center was a federally funded health center; claims against it must be brought under the Federal Tort Claims Act, which contains a two year statute of limitations with no tolling provisions in the event the injured person is a minor.  Once the plaintiff’s attorney eventually filed the action in the correct  U.S. Court of Claims, the government moved to dismiss the case based upon the two-year Federal Claims Act statute of limitations which had long since run.

The plaintiff claimed that her cause of action did not accrue until she learned that the clinic could only be sued under the Federal Tort Claims Act.  The court disagreed.  The court pointed out that the plaintiff’s remedy would be against the lawyer for improperly advising her of the statute of limitations:

“It’s not asking too much of the medical malpractice bar to be aware of the existence of federally funded health centers that can be sued for malpractice only under the Federal Tort Claims Act – there are at least three such centers in Chicago besides Erie – and if a member of that bar is not aware and misleads a client as [the lawyer] did in this case by advising the plaintiff that the applicable statue of limitations was eight years, the lawyer may be liable for legal malpractice but the government can still invoke the statute of limitations.”

The plaintiff also claimed that the statute of limitations should be tolled because Erie concealed its federal funding.  The court held that equitable estoppel did not apply because it was not a case of fraudulent concealment.  Erie didn’t conceal its receipt of federal funding; it just didn’t reveal that as a recipient it could only be sued for torts under the Federal Tort Claims Act and not state law.  “No physician, clinic, hospital, or other medical provider is required to provide patients with detailed instructions on how to sue the provider for malpractice.”

Equitable Estoppel Applies in Cases of Egregious Conduct by a Defendant

Levine v. EBI, 2013 IL App (1st) 121049 (1st Dist. 03/06/13), involved active efforts by the defendant to conceal the plaintiff’s cause of action against it.  In that case, Dr. Shapiro performed a surgery for the plaintiff during which he discovered that he had some but not all of the equipment he needed.  The surgeon therefore suspended the surgery, placed his patient on antibiotics, and planned to conclude it at a later time.  In the interval, however, the patient suffered a severe infection. 

The plaintiff timely sued a medical device manufacturer and other respondents in discovery, including an equipment supplier EBI.  The plaintiff asked respondents to identify the company that Dr. Shapiro referenced in his medical record and to identify the persons/corporations responsible for bringing the missing instruments/tools/drivers to Dr. Shapiro’s surgery.  EBI’s response claimed it did not know either answer. Later when plaintiff learned during discovery that Dr. Shapiro had spoken with EBI, the medical supplier, during surgery about the missing equipment, the plaintiff promptly added EBI as a defendant.  

EBI moved to dismiss based upon the statute of limitations.  The plaintiff asserted that the statute of limitations should not apply because of EBI’s fraudulent concealment of its actions.  The court held that EBI’s false discovery responses equitably estopped it from asserting the statute of limitations defense, and allowed the action to proceed notwithstanding the expiration of the statute of limitations.

Conclusion

These recent cases show that courts are willing to bar litigation based on the statute of limitations.  They also show that defendants will be equitably estopped from asserting a statute of limitations defense where those defendants take improper steps to delay the filing of a lawsuit against them beyond the statutory deadlines.

Originally published in the Spring 2013 edition of Quinn Quarterly.