ELIZABETH HALL MOTEN AS INDEPENDENT ADMINISTRATOR OF THE ESTATE OF JOSEPH HALL v. STATE OF ILLINOIS (2012)

ORDER

This matter coming before the Court on Respondent's Motion to Dismiss Claimant's Amended Complaint, the Court having read the pleadings and being fully advised in the premises finds that:

I. INTRODUCTION

Claimant Joseph De'Andre Hall (“Claimant Hall”) was a former inmate incarcerated with Respondent, the Illinois Department of Corrections (“IDOC”), from October 1, 1999 to November 2002. On October 18, 2002, while incarcerated with IDOC, Claimant Hall was diagnosed with an Extraskeletal Ewings Sarcoma/ Primitive Neuroectodermal Tumor. On March 21, 2005, Claimant Hall, by and through his mother, Claimant Elizabeth Hall-Moten (“Claimant Hall-Moten”) filed the instant Court of Claims case. Claimant Hall died of cancer on April 9, 2005. On June 2, 2006, Claimant Hall-Moten filed the amended complaint, which has two counts. Count I is a claim for Wrongful Death, and Count II is Survival Action.

Respondent now moves to dismiss this claim based on the statute of limitations set forth in the Illinois Court of Claims Act, 705 ILCS 505/22(h).

II. CLAIMANT HALL-MOTEN'S AMENDED COMPLAINT

Claimant Hall was sentenced to IDOC on October 1, 1999. On August 1, 2001, while incarcerated at Logan Correctional Center (“Logan”), Claimant Hall began to experience back pain and a small lump appeared on his back. While at Logan, Claimant Hall sought medical treatment, which included a muscle rub and ibuprofen, an anti-inflammatory drug. On September 1, 2001, Claimant Hall was transferred to Pontiac Correctional Center (“Pontiac”). As the size of the lump increased, and his pain continued, Claimant Hall sought medical treatment on various dates from December 2, 2001, to August 18, 2002, at Pontiac. His medical treatment consisted of muscle rubs and ibuprofen. On February 8, 2002, a fellow inmate, James Smith, #B52266, wrote to Pontiac's Medical Center Director to obtain medical treatment for Claimant Hall. On May 1, 2002, Claimant Hall was transferred to Stateville Correctional Center (“Stateville”), where he continued to seek medical treatment. On August 5, 2002, Claimant Hall sought medical care, and he was not allowed to see a doctor. On August 18, 2002, Claimant Hall filed a grievance in an effort to get appropriate medical treatment, and that grievance was denied.

On September 4, 2002, Claimant Hall was admitted to the University of Illinois-Chicago Medical Center. On October 18, 2002, approximately 15 months from when he first began to seek medical treatment, Claimant Hall was diagnosed with an Extraskeletal Ewings Sarcoma/Primitive Neuroectodermal Tumor. Claimant Hall-Moten alleges that Claimant Hall suffered as damages: violation of his constitutional rights, loss of life, and physical pain and suffering and emotional trauma and suffering, requiring the expenditure of money for treatment.

III. CLAIMANT HALL-MOTEN'S LITIGATION IN U.S. DISTRICT COURT

(Elizabeth Hall-Moten v. Kevin Smith, M.D., et al., 05 C 5510)

On September 23, 2005, Claimant Hall-Moten filed an action in United States District Court, Northern District, Case no. 05 C 5510 (“Federal Case”) that arose out of the same set of facts as alleged herein. The named defendants in the Federal Case were Kevin Smith, M.D., Arthur D. Funk, M.D., Vicki Hetman, Addus Healthcare, Inc. (“Addus”), and Wexford Health Sources, Inc. (“Wexford”). Claimant Hall-Moten's Fourth Amended Complaint in her Federal Case had the following Counts: 1) Deliberate indifference to serious medical condition: II) Wrongful Death; II) Survival; IV) Third-party Breach of Contract claim against Defendant Wexford; V) Third-party Breach of Contract against Defendant Addus. On April 17, 2009, the U.S. District Court issued its opinion in this matter at: Elizabeth Hall-Moten v. Kevin Smith, M.D., et al., 2009 WL 1033361 (N.D. Ill.).

During the relevant time period, Dr. Arthur D. Funk was the medical director at Pontiac, and Dr. Kevin Smith, M.D., was a staff physician at Pontiac. Both Drs. Funk and Smith were at that time employed by Wexford. Sometime, in late 2001 or early 2002, Dr. Smith became the medical director at Stateville, where he was employed by Addus. Dr. Smith was the medical director at Stateville until May 2004.

On April 17, 2009, the U.S. District Court granted the defendants various motions for summary judgment in whole or in part, with the exception that the federal court denied defendant Addus motion for summary judgment on Count V.

The U.S. District Court made the following findings of fact:

• On October 18, 2002, Hall was diagnosed with Extraskeletal Ewings Sarcoma/Primitive Neuroectodermal Tumor. At that time, a Dr. Snow informed Hall-Moten of Hall's diagnosis over the phone. Dr. Snow also told Hall-Moten during the same October 2002 phone call that Hall's prognosis would have been better if he had been brought in earlier, as the doctors could have eradicated the mass before it got so big. Hall was released from the Illinois Department of Corrections in November 2002, and died of cancer on April 9, 2005. As stated earlier, this lawsuit was filed on September 23, 2005.

Hall-Moten, 2009 WL 1033361, p. 3.

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• At the time of Hall's death on April 9, 2005, the two-year statute of limitations on any personal injury claim Hall might have brought against the defendants has already expired.FN5. Accordingly, Hall-Moten “cannot now maintain this action for wrongful death” under Illinois law absent the application of equitable tolling principles.”

Hall-Moten, 2009 WL 1033361, p. 4 (footnote and citations omitted).

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• Similarly, the Illinois Survival Act “allows a representative of the decedent to maintain those statutory or common law actions which had already accrued to the decedent before he died.” As with claims brought pursuant to the Wrongful Death Act, the right to bring a cause of action under the Survival Act is extinguished if the applicable statute of limitations would have barred the decedent from asserting the same cause of action during his lifetime. Because Hall's underlying personal injury claims had run at the time of his death, his claim for survival (Count III) cannot succeed on the basis of these claims absent the application of equitable tolling principles.

Hall-Moten, 2009 WL 1033361, p.5 (Citations omitted)

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• The record demonstrates that Hall was clearly able to understand and communicate his decisions while incarcerated and, as far as the court can discern, the only change in Hall's condition upon his release was his experience of depression, pain, and illness associated with chemotherapy. These types of experiences are not normally or necessarily associated with an inability to comprehend, make, or communicate personal decisions. Without more, a fact finder cannot reasonably infer that Hall lost this ability and became legally disabled after his release from prison. The court understands that it may have been inconvenient, or even quite difficult, for Hall to file his claims while he battled a variety of medical problems. However, there is simply no evidence that these problems impacted his ability to proceed as a legally competent adult. Illinois' provision for tolling in the case of a legal disability cannot be applied to Hall's claims.

Hall-Moten, 2009 WL 1033361 p. 7

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• Finally, Hall-Moten cannot prevail on her fraudulent concealment argument because Hall's ability to file within the two-year statutory period was not impacted by the defendant's conduct. Illinois courts have held that “if the plaintiff discovers the fraudulent concealment and a reasonable time remains within the relevant limitations period, section 13-215 of the Code will not apply to lengthen the limitations period.” Hall-Moten does not suggest that either she or hall discovered the defendant's conduct after October 19, 2002. For all of these reasons, the court declines to toll the applicable statutes of limitations on the basis of fraudulent concealment.

Hall-Moten, 2009 WL 1033361, p. 7 (Citation omitted).

IV. ANALYSIS

Both Claimant Hall-Moten's actions for Wrongful Death and Survival are barred by the two year statute of limitations set forth in the Court of Claims Act, 705 ILCS 505/22(h).

On October 18, 2002, approximately 15 months from when he first began to seek medical treatment, Claimant hall was diagnosed with an Extraskeletal Ewings Sarcoma/Primitive Neuroectodermal Tumor. At the time, Dr. Snow informed Claimant Hall of the diagnosis over the telephone. On March 21, 2005, Claimant Hall filed his initial action in this Court alleging improper medical care while incarcerated at IDOC. On June 2, 2006, Claimant Hall-Moten filed an amended complaint that included a count for Wrongful Death and Survival Action.

Illinois Courts interpreting the Wrongful Death Act, 740 ILCS 180/1 et seq., have long found that a wrongful death action will lie only where the deceased had a claim that was not time-barred on or before his death. Beetle v. Wal-Mart Associates, Inc., et al, 326 Ill.App.3d 528, 533, 761 N.E. 2d 364, 369 (2nd Dist. 2001).

The Survival Act, 755 ILCS 5/27-6, does not create a statutory cause of action. Advincula v. United Blood Services, 176 Ill.2d 1, 42, 678 N.E.2d 1009, 1029 (1996). It merely allows a representative of the decedent to maintain those statutory or common law actions which had already accrued to the decedent before he died. Id. As such, a Survival Act claim is a derivative action based on injury to the decedent, but brought by the representative of a deceaseds estate in that capacity. Id. Hence, for purposes of triggering the statutory limitations period, it is the date the deceased learns of his injury which is controlling. Id.

Claimant's initial cause of actions for deliberate indifference to his serious medical condition was filed on March 21, 2005, which was more than two years from October 18, 2002, the date Dr. Snow informed Claimant that Claimant had an Extraskeletal Ewings Sarcoma/Primitive Neuroectodermal tumor. Dr. Snow's diagnosis put Claimant on notice that he may have received improper medical care while incarcerated at IDOC. The date Claimant Hall was informed of Dr. Snow's diagnosis, October 18, 2002, was established in Elizabeth Hall-Moten v. Kevin Smith, M.D., et al, and is raised herein as collateral estoppel as to the date on which Claimant became informed of his tumor. Elizabeth Hall-Moten, 2009 WL 1033361. Since Claimant hall had been informed of his tumor on October 18, 2002, and did not file his initial claim for improper medical care until March 21, 2005, the Claimant's initial cause of action is barred by the statute of limitations at 705 ILCS 505/22(h).

Since the Claimant's initial cause of action is barred by the statute of limitations, based on Beetle and Advincula, Claimant Hall-Moten's subsequent actions for Wrongful Death and Survival are also barred by the statute of limitations at 705 ILCS 505/22(h).

IT IS HEREBY ORDERED that Respondent's Motion to Dismiss Claimant's Amended Complaint he, and the same is hereby, GRANTED, and the Claimant's Amended Complaint is dismissed with prejudice.

BURNS, J.