The Illinois Supreme Court recently decided a case that directly affects the amount of time a plaintiff has to file a wrongful death suit after the death occurs. Prior to the case, the statute of limitations proscribed a two year window for filing of a lawsuit after a death caused by negligence. After the Supreme Court's decision in Moon v. Rhode, plaintiffs now have two years after discovering that the death was wrongfully caused to file suit. This distinction could be the difference between having your case dismissed for being untimely and being able to successfully prosecute a claim for damages.
The Moon decision incorporates the discovery rule, a rule often used in personal injury cases. The rule states that the statute of limitations only begins to run once the injured party "discovers" their injury and the cause of that injury. A classic example would be cancer caused from exposure to chemicals in the workplace that is only discovered years after being exposed to the chemicals. Because the injured party did not "discover" the injury (cancer) until later in life, the two year statute of limitations did not begin to run until this discovery. The same is now true for wrongful death cases. The statute of limitations does not begin to run until the plaintiff "knows or reasonably should have known" that the death was wrongfully caused. Typically, this will apply to medical malpractice cases where a layperson may not immediately understand that the death of a loved one was caused or contributed to by negligent medical care.
While this new holding will be extremely helpful to those plaintiffs who do not know that their loved one's death was wrongfully caused, those who believe there was an issue of medical malpractice should not wait to talk to an attorney. The statute of limitations applies to those who should have known that the death was wrongfully caused and any time spent waiting could compromise your case. Hopefully, this new rule will benefit those families who have lost a loved one only to find out later that their death was wrongfully caused. Now, that discovery can be used to restore their family and hold those responsible for the death accountable.