Illinois Appellate Court Answers Certified Question as to Disability Tolling Statute

Jennifer Andrules, a disabled person, was taken to Adventus Bolingbrook Hospital for medical evaluation on May 16, 2014. While at the hospital, she fell and fractured her right leg, which required surgery. She was then discharged from Adventus to Lakewood Nursing & Rehabilitation Center, but on June 3, 2014, she suffered another fall and fractured her right leg, again requiring additional surgery.

On May 2, 2016, Northern Trust, as special administrator of the Andrules’ estate, filed a complaint against Adventus for medical negligence. The director of nursing at Lakewood Nursing & Rehabilitation was deposed in 2018 regarding the second fall.

On Feb. 11, 2019, Linda Gavlin, as special administrator for the estate, filed suit against Adventus and Lakewood, alleging one count of medical negligence against each defendant. Lakewood moved to dismiss, arguing the charges were untimely.

The trial court granted Lakewood’s motion, but reversed on Gavlin’s motion to reconsider and instead allowed Lakewood to file a statutory appeal and submit a proposed certified question for review.

For review, the trial court certified the following question: “Does Plaintiff’s removal of the disability tolling statute (735 ILCS 5/13-211) by filing a Complaint against Joint Tortfeasor A, act as a removal of the disability tolling statute as to Joint Tortfeasor B, if Plaintiff pled actual knowledge of Joint Tortfeasor B’s involvement?”

The disability tolling statute states that if a victim entitled to bring a cause of action is “at the time the cause of action accrued … under a legal disability, then he or she may bring the action within 2 years after … the disability is removed.” Section 13-212(c) of the Illinois Code of Civil Procedure, referring specifically to negligence, allows that if such a person is “under a legal disability … then the period of limitations does not begin to run until the disability is removed.”

Gavlin argued that her prior lawsuit or choosing not to include Lakewood did not deprive Andrules of her right of action.

The appellate court agreed, citing precedent holding that a guardian or conservator failing to include a defendant in a suit did not stop a statute of limitation from tolling, and noting that “[m]any jurisdictions have allowed a plaintiff bringing an action on behalf of a minor or disabled person to name a new defendant to an existing cause of action years after filing the initial complaint because the statute of limitations remains tolled.”

Lakewood argued that Andrules’s rights were protected by the initial complaint and it should not be subject to liability for Andrules’s entire lifetime, and in the alternative that the doctrine of laches applies.

The appellate court disagreed, finding it the explicit intent of the legislature that injuries against the disabled subject tortfeasors to extended liability and that the doctrine of laches does not apply to a disabled plaintiff.

Accordingly, the appellate court therefore answered the certified question in the negative, meaning that the tolling of the statute of limitations remained in place, and remanded the case back to the trial court for further proceedings.

Gavlin v. Adventus Bolingbrook Hospital, Lakewood Nursing & Rehabilitation Center, 2022 IL App (3d) 200282.

Kreisman Law Offices has been handling nursing home abuse cases, nursing home negligence cases, medical negligence lawsuits, and wrongful death cases for individuals, families and loved ones who have been harmed, injured or died as a result of the carelessness or negligence of a medical provider for more than 45 years in and around Chicago, Cook County and its surrounding areas, including Bolingbrook, Aurora, Waukegan, Hinsdale, St. Charles, Morton Grove, Niles, Des Plaines, Evanston, Chicago (Rogers Park, Lincoln Park, Lakeview, South Shore, Bronzeville, Wrigleyville, Chinatown, Greek Town, Edgewater, Andersonville, Ukrainian Village, Uptown), Calumet City, Inverness, Vernon Hills, Palos Heights, and University Park, Illinois.

Robert D. Kreisman has been an active member of the Illinois and Missouri bars since 1976.