2022 IL App (3d) 200282
Opinion filed January 3, 2022 ____________________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
LINDA GAVLIN, as Special Administrator of ) Appeal from the Circuit Court the Estate of JENNIFER ANDRULES, a ) of the 12th Judicial Circuit, disabled person, ) Will County, Illinois. ) Plaintiff-Appellee, ) ) v. ) ) ADVENTIST BOLINGBROOK HOSPITAL, ) Appeal No. 3-20-0282 d/b/a Amita Health Adventist Medical Center, ) Circuit No. 16-L-327 Bolingbrook, and LAKEWOOD NURSING ) AND REHABILITATION CENTER, LLC, ) ) Defendants ) ) (Lakewood Nursing and Rehabilitation Center, ) The Honorable LLC, ) Raymond E. Rossi, Defendant-Appellant). ) Judge, Presiding. ____________________________________________________________________________
JUSTICE LYTTON delivered the judgment of the court, with opinion. Justices Daugherity and Schmidt concurred in the judgment and opinion. ____________________________________________________________________________
OPINION
¶1 In 2016, plaintiff Linda Gavlin, as Special Administrator of the Estate of Jennifer Andrules,
filed suit against defendant Adventist Bolingbrook Hospital, d/b/a Amita Health Adventist
Medical Center, Bolingbrook, alleging medical negligence. In 2019, plaintiff filed an amended
two-count complaint, alleging medical negligence against Adventist and a new defendant, Lakewood Nursing and Rehabilitation Center, LLC. Lakewood filed a motion to dismiss, asserting
that the claim against it was untimely. The trial court initially granted Lakewood’s motion but later
reversed its decision. The court then certified a question for interlocutory review. Lakewood filed
an application for interlocutory appeal, which we granted. We answer the certified question in the
negative and remand for further proceedings.
¶2 BACKGROUND
¶3 Jennifer Andrules is a disabled person. On May 16, 2014, Andrules was taken to Adventist
for a medical evaluation. While at Adventist, Andrules suffered a fall, which resulted in a fracture
to the right femoral head of her right leg. Andrules underwent surgery for that injury.
¶4 On May 22, 2014, Andrules was discharged from Adventist and admitted to Lakewood.
On June 3, 2014, Andrules suffered a fall at Lakewood and fractured her right leg, necessitating a
second surgery on that leg.
¶5 On May 2, 2016, Northern Trust, as Special Administrator of Andrules’ Estate, filed a
complaint against Adventist, alleging medical negligence. The “Certificate of Merit of Reviewing
Physician” attached to the complaint addressed Andrules’ first fall at Adventist and also referred
to Andrules’ “second fall” at Lakewood. On May 18, 2018, the Director of Nursing at Lakewood,
Barbara Braun, was deposed and testified about Andrules’ June 3, 2014 fall at Lakewood.
¶6 On February 11, 2019, Linda Gavlin, as Special Administrator of Andrules’ Estate, filed a
third amended two-count complaint. Count I alleged medical negligence against Adventist, and
count II alleged medical negligence against Lakewood. The reviewing physician’s certificate
alleged: “Lakewood and its staff were negligent in their care and treatment of Jenny Andrules
resulting in her fall on June 3, 2014, necessitating a second more extensive surgery, with pain,
2 disability and damages some of which will remain permanent and continue for the rest of her life
and increased living costs and expenses ***.”
¶7 Lakewood filed a motion to dismiss count II of the third-amended complaint, arguing that
the allegations against it were untimely. The trial court initially granted Lakewood’s motion to
dismiss. Gavlin filed a motion to reconsider, which the trial court granted, reversing its earlier
ruling and denying Lakewood’s motion to dismiss. The court’s order stated: “Lakewood may file
an interlocutory appeal pursuant to [Supreme Court Rule] 308 and shall submit proposed certified
questions to Plaintiff for review and possible agreement ***.”
¶8 Lakewood filed a “Motion to Approve Certified Question Pursuant to [Supreme Court
Rule] 308” and Gavlin filed a motion objecting to interlocutory appeal and Lakewood’s certified
question. Following a hearing, the trial court denied Gavlin’s motion and granted Lakewood’s
motion. The trial court approved the following certified question for interlocutory appeal:
“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?”
Lakewood filed an application for leave to appeal with this court, which we granted.
¶9 ANALYSIS
¶ 10 Illinois Supreme Court Rule 308(a) provides:
“When the trial court, in making an interlocutory order not otherwise appealable,
finds that the order involves a question of law as to which there is substantial ground
for difference of opinion and that an immediate appeal from the order may
materially advance the ultimate termination of the litigation, the court shall so state
3 in writing, identifying the question of law involved. Such a statement may be made
at the time of the entry of the order or thereafter on the court’s own motion or on
motion of any party. The Appellate Court may thereupon in its discretion allow an
appeal from the order.” Ill. S. Ct. R. 308(a) (eff. Oct. 1, 2019).
The scope of review in an interlocutory appeal under Rule 308 is limited to the question certified
by the trial court, which, because it is a question of law, is reviewed de novo. Moore v. Chicago
Park District, 2012 IL 112788, ¶ 9.
¶ 11 Here, the certified question requires us to examine the interplay between the statutes of
limitations and repose for medical negligence actions (735 ILCS 5/13-212(a) (West 2018)) and the
disability tolling statutes (735 ILCS 5/13-211(a), 212(c) (West 2018)). Section 13-212(a) of the
Code of Civil Procedure (Code) is “bifurcated, providing both a statute of limitations and a statute
of repose” for medical negligence actions. Kanne v. Bulkley, 306 Ill. App. 3d 1036, 1040 (1999).
It provides in pertinent part:
“[N]o action for damages for injury or death against any physician, dentist,
registered nurse or hospital duly licensed under the laws of this State, whether based
upon tort, or breach of contract, or otherwise, arising out of patient care shall be
brought more than 2 years after the date on which the claimant knew, or through
the use of reasonable diligence should have known, or received notice in writing of
the existence of the injury or death for which damages are sought in the action, ***
but in no event shall such action be brought more than 4 years after the date on
which occurred the act or omission or occurrence alleged in such action to have
been the cause of such injury or death.” 735 ILCS 5/13-212(a) (West 2018).
4 ¶ 12 The medical negligence statute of limitations “has been read within the context of the
‘discovery rule’ to mean that the two-year malpractice limitations period begins to run when the
party ‘knows or reasonably should know of his injury and also knows or reasonably should know
that it was wrongfully caused.’” Young v. McKiegue, 303 Ill. App. 3d 380, 387 (1999). The purpose
of a statute of repose is “to curtail the ‘long tail’ of liability that may result from the discovery
rule.” Snyder v. Heidelberger, 2011 IL 111052, ¶ 10. A statute of repose places “a cap on the
applicability of the discovery rule so that the outer limit terminates the possibility of liability after
a definite period of time, regardless of a potential plaintiff’s lack of knowledge of his cause of
action.” Serafin v. Seith, 284 Ill. App. 3d 577, 588 (1996).
¶ 13 Sections 13-211(a) and 13-212(c) of the Code constitute tolling provisions applicable in
negligence actions. Section 13-211(a) applies to general negligence actions and provides: “If the
person entitled to bring an action ***, at the time the cause of action accrued, is *** under a legal
disability, then he or she may bring the action within 2 years after *** the disability is removed.”
735 ILCS 5/13-211(a) (West 2018). Section 13-212(c), which applies to medical negligence
claims, provides: “If the person entitled to bring an action described in this Section is, at the time
the cause of action accrued, under a legal disability other than being under the age of 18 years,
then the period of limitations does not begin to run until the disability is removed.” 735 ILCS 5/13-
212(c) (West 2018).
¶ 14 Disability tolling statutes apply to both statutes of limitations and statutes of repose. See
Brucker v. Mercola, 227 Ill. 2d 502, 550-51 (2007); DeLuna v. Burciaga, 223 Ill. 2d 49, 65 (2006);
Bruso v. Alexian Brothers Hospital, 178 Ill. 2d 445, 452-53 (1997). When a plaintiff in a medical
negligence action is under a legal disability, such as mental incompetency, the action is subject to
5 the tolling provision of section 13-212, and not the repose period. See 735 ILCS 5/13-212 (West
2018); Bruso, 178 Ill. 2d at 461.
¶ 15 Disability tolling provisions are necessary to protect the interests of mentally disabled
people and preserve their day in court until they are able to bring suit on their own. See Fess v.
Parke, Davis & Co., 113 Ill. App. 3d 133, 135 (1983). Through tolling statutes, Illinois courts have
“repeatedly protected the rights of those under a disability when a cause of action arose.”
Mickiewicz v. Generations at Regency, LLC., 2020 IL App (1st) 181771, ¶ 22. Tolling statutes also
uphold the policy that protects minors and disabled people “from being deprived of an adjudication
of their rights through no fault of their own.” Girman, 103 Ill. App. 3d at 900.
¶ 16 “Illinois law has long recognized that incompetents are favored persons in the eyes of the
law and courts have a special duty to protect their rights.” Bruso, 178 Ill. 2d at 454 (citing
Macdonald v. La Salle National Bank, 11 Ill. 2d 122, 125 (1957) and Van Buskirk v. Van Buskirk,
148 Ill. 9, 26 (1893)). “Disabled persons, as well as minors, are to be given special protection by
the courts to protect their interests.” Zimmerman v. Village of Skokie, 174 Ill. App. 3d 1001, 1008
(1988). The purpose of tolling provisions is “to protect the rights of those who are not competent
to do so themselves.” Bruso, 178 Ill. 2d at 454. Tolling provisions recognize that the enforcement
of a disabled person’s rights “should not be ‘left to the whim or mercy’” of his or her court-
appointed or self-appointed representative. See Girman v. Cook County, 103 Ill. App. 3d 897, 898
(1981) (quoting McDonald v. City of Spring Valley, 285 Ill. 52, 56 (1918)) (an individual “with a
meritorious cause of action but incapable of initiating any proceeding for its enforcement will not
be left to the whim or mercy of some self-constituted next friend to enforce its rights”).
¶ 17 A guardian or conservator of the estate of a disabled person may file suit on behalf of a
disabled person. See Scott v. Bassett, 194 Ill. 602, 607 (1902); Pyott v. Pyott, 191 Ill. 280, 288-89
6 (1901); Passmore v. Walther Memorial Hospital, 152 Ill. App. 3d 554, 555 (1987); Haas v.
Westlake Community Hospital, 82 Ill. App. 3d 347, 348 (1980). However, a guardian or
representative may not always adequately protect the interests of the disabled individual. See
Zimmerman, 174 Ill. App. 3d at 1008. A minor or disabled person should not be held responsible
for the lack of diligence or negligence of his or her representatives. Id.; see also Van Buskirk, 148
Ill. at 26 (disabled person’s rights cannot be prejudiced by next friend’s failure to quickly bring
suit); In re Estate of Sheehan, 290 Ill. App. 551, 555 (1937) (a minor “should not be deprived of
her rights by the laches or neglect of a recreant guardian”).
¶ 18 Conservators, executors, administrators and guardians of the estates of disabled persons
are not vested with legal title to their wards’ estates. In re Estate of Brach, 76 Ill. App. 3d 1050,
1054-55 (1979). They have only the duty of care and management of the estate but obtain no
interest in the property. Id. Legal title remains with the disabled person. Id. at 1055.
¶ 19 In Illinois, appointment of a guardian for a disabled individual or a minor does not
terminate the tolling statute and begin the running of the applicable statute of limitations. See
Mazikoske v. Firestone Tire & Rubber Co., 149 Ill. App. 3d 166, 178 (1986); Eiseman v. Lerner,
64 Ill. App. 3d 185, 188 (1978); Estate of Sheehan, 290 Ill. App. at 554-55; Alber v. Illinois
Department of Mental Health and Developmental Disabilities, 786 F. Supp. 1340, 1359 (N.D. Ill.
1992); Pardy v. United States, 548 F. Supp. 682, 684 (S.D. Ill. 1982). This is because the cause of
action is owned by the minor or disabled person, not the guardian. See Sheehan, 290 Ill. App. at
556; Pardy, 548 F.Supp. at 684. As the owners of the cause of action, minors and disabled people
should not be deprived of their rights by the actions or inactions of their guardians. See Sheehan,
290 Ill. App. at 555. Thus, the statute of limitations continues to be tolled upon the appointment
7 of a guardian, and tolling continues until the disability is removed. See id. at 556-57; Pardy, 548
F.Supp. at 684.
¶ 20 Like Illinois, “the vast majority of jurisdictions hold that the appointment of a guardian
over an incompetent does not remove the disability for purposes of the running of the statute of
limitations.” Barlow-Malow Co., Inc. v. Wilburn, 556 N.E. 2d 324, 325 & n.1 (Ind. 1990) (citing
cases); see also Estate of Mims v. South Carolina Department of Disabilities and Special Needs,
811 S.E. 2d 807, 812-13 (S.C. Ct. App. 2018) (“The vast majority of jurisdictions with *** tolling
statutes hold the appointment of a guardian does not end the disability when the tolling statute is
unambiguous and does not suggest a legislative intent to end the disability when a guardian is
appointed.”); Weaver v. Edwin Shaw Hospital, 819 N.E. 2d 1079, 1085 (Ohio 2004) (citing cases
supporting that “[t]he overwhelming majority of courts” interpreting tolling statutes “have
concluded that the appointment of a guardian has no effect on the tolling of the statute of
limitations”); Unkert v. General Motors Corp., 694 A.2d 306, 310 (N.J. Sup. Ct. 1997) (listing
cases supporting that “the majority of jurisdictions that have addressed the issue hold that the
appointment of a guardian does not trigger the commencement of the limitations period”); Young
v. Key Pharmaceuticals, Inc., 770 P.2d 182, 186 (Wash. 1989) (following “majority rule” that
appointment of guardian has no effect on tolling statute).
¶ 21 If a tolling statute does not mention the effect of a guardian’s appointment, it is presumed
that the legislature intended appointment of a guardian to have no effect on the tolling statute.
O’Brien v. Massachusetts Bay Transportation Authority, 541 N.E. 2d 334, 337 (Mass. 1989).
“[T]he absence of specific language regarding the effect of guardianship on the statute ‘means that
the statute was intended to operate regardless of the guardian’s presence.’” Id. (quoting Young,
770 P.2d at 185).
8 ¶ 22 One Illinois court has ruled that a representative’s institution of an action on behalf of a
minor had no effect on the statute that tolled the action until the minor reached majority. See Libby,
McNeill & Libby v. Kearney, 124 Ill. App. 339, 346 (1906). The court held: “The bringing of a
suit by next friend during the plaintiff’s minority on one cause of action, certainly does not waive
the right secured by statute to the infant to sue after he comes of age on another.” Id. Thus, the
court allowed the plaintiff to file additional counts more than two years after the next friend filed
suit because the statute of limitations did not begin running until the plaintiff reached the age of
majority. See id.
¶ 23 Courts in almost every other jurisdiction agree that the applicable statute of limitations
remains tolled even after a representative files suit on behalf of a minor or disabled person. “It is
the established rule in the majority of jurisdictions deciding the issue that the mere commencement
of litigation has no effect on a tolling statute.” Luchini v. Harsany, 779 P. 2d 1053, 1056 (Or. App.
1989); see Czimmer v. Janssen Pharmaceuticals, Inc., 122 A. 3d 1043, 1060-61 (Pa. Sup. Ct. 2015)
(statute of limitations remains suspended even if parent or guardian files suit on behalf of minor
child); Rachal v. O’Neil, 925 A.2d 920, 924 (R.I. 2007) (suit instituted on behalf of minor had no
effect on tolling statute); Abels v. Genie Industries, Inc., 202 S.W.3d 99, 106 (Tenn. 2006) (tolling
provision “remains in effect as to plaintiffs of ‘unsound mind’ for so long as they remain of
‘unsound mind’ regardless of *** the commencement of a lawsuit by a representative on behalf of
the disabled plaintiff”); Ruiz v. Conoco, Inc., 868 S.W.2d 752, 756 (Tex. 1993) (“the mere
commencement of a lawsuit by, or on behalf of, a legally incapacitated individual is, considered
alone, insufficient to deny the protection of the tolling provision”); Tzolov v. International Jet
Leasing, Inc., 232 Cal.App.3d 117, 121 (1991) (filing of action by guardian ad litem did not affect
tolling of statute of limitations); Genesco, Inc. v. Cone Mills Corp., 604 F.2d 281, 286-87 (4th Cir.
9 1979) (parent filing complaint on behalf of minor did not start running of statute of limitations
against minor); Walker v. Pacific Basin Trading Co., 536 F.2d 344, 346-47 (10th Cir. 1976)
(plaintiff could add a defendant more than two years after injury occurred because plaintiff alleged
he suffered from legal disability, which tolled statute of limitations). But see White v. Murphy, 789
F.2d 614, 615 (8th Cir. 1986) (prisoner’s filing of action during imprisonment stopped tolling
statute applicable to him); Johnson v. McLean, 630 S.W.2d 790, 793-94 (Tex. Ct. App. 1982)
(same).
¶ 24 “[T]he extension created for *** the mentally handicapped is not terminated by the
commencement of litigation by the representative.” Luchini, 779 P. 2d at 1056 (citing Van Buskirk
v. Todd, 269 Cal. App. 2d 680, 689 (1969); Haberkorn v. ROHM-GMBH, 709 P. 2d 44, 45-46
(Colo. Ct. App. 1985); Gundershein v. Bradley-Mahoney Coal Corp., 68 N.E.2d 599, 600 (N.Y.
Ct. App. 1946)). Because the right to tolling belongs to the disabled person, the guardian’s
commencement of litigation should have no effect on a tolling statute. See Luchini, 779 P. 2d at
1056; Young, 770 P. 2d at 187; see also Rachal, 925 A.2d at 924 (disability is not removed or
waived by representative filing suit). “Rather, the tolling of the statute of limitations continues
until the disabled person’s mind becomes ‘sound,’ or the person dies.” Abels, 202 S.W.3d at 105;
see also Zayed v. Clark Manor Convalescent Center, Inc., 2019 IL App (1st) 181552, ¶ 28 (“the
‘legal disability’ preventing a disabled person from suing is removed when the disability is
removed or when the disabled person dies”).
¶ 25 Many 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. See Rachal, 925 A.2d at 928 (parents
could amend personal injury suit brought on behalf of minor son to add a defendant); Palla v.
10 McDonald, 877 S.W.2d 472, 477 (Tex. Ct. App. 1994) (husband, as next friend of allegedly
disabled wife, could amend medical malpractice action to add a new defendant over two years
after initially filing suit); Abels, 202 S.W. 3d at 105 (guardian ad litem of disabled individual could
amend complaint to add additional defendant); Haberkorn, 709 P.2d at 45-46 (complaint filed by
father and next friend of minor could be amended four years later to add new claims); State for
Use of Brooks v. Gunn, 667 S.W. 2d 499, 501 (Ct. App. Tenn. 1984) (minor’s guardian could
amend complaint to name new defendant more than two years after original complaint); Genesco,
604 F.2d at 286 (mother, who filed suit on behalf of minor daughter, against one defendant could
sue additional defendant five years later); Walker, 536 F.2d at 346-47 (complaint filed on behalf
of allegedly disabled plaintiff could be amended to add new defendants more than two years after
accident occurred). “[T]he mere fact suit was filed on behalf of [the disabled person] against other
defendants is not sufficient to deny the protection of the tolling of the statute of limitations on [the
disabled person’s] cause of action against a different defendant.” Palla, 877 S.W.2d at 477.
¶ 26 Here, Lakewood argues that we should answer the certified question in the positive because
(1) Andrules’ rights were adequately protected when Gavlin filed a complaint on her behalf, and
(2) it is unfair to subject it to liability for Andrules’ injuries for her entire lifetime because of her
disability. Lakewood alternatively argues that the doctrine of laches applies. We disagree with
each of these contentions.
¶ 27 First, removing the protection of a tolling statute when a representative of a disabled person
files suit does not adequately protect a disabled person because “access to the courts does not alone
provide a legally incapacitated person a viable opportunity to protect his legal rights.” Ruiz, 868
S.W.2d at 755. “The disability of a person of unsound mind is not only the lack of access to the
courts, but also the inability to participate in, control, or even understand the progression and
11 disposition of their lawsuit.” Id. In creating tolling statutes, legislatures consider “not merely the
inability to sue, but also the difficulties of the incompetent in giving information and testifying.”
Wolf v. United States, 10 F.Supp. 899, 900 (S.D. N.Y. 1935). Because a disabled person cannot
actively participate in a lawsuit on his or her behalf, it is reasonable to require statutes of limitations
and repose to be tolled until the disability is removed. See Sheehan, 290 Ill. App. at 555 Pardy,
548 F.Supp. at 684.
¶ 28 Additionally, courts have rejected arguments from defendants like Lakewood, that it is
unfair for their potential liability to extend throughout the lifetime of a disabled plaintiff. See Ruiz,
868 S.W.2d at 755, Tzolov, 232 Cal.App.3d at 120; O'Brien, 541 N.E.2d at 337-38; Young, 770 P.
2d at 187. Disability tolling statutes reflect “a considered legislative judgment that in enumerated
circumstances the strong policy in favor of prompt disposition of disputes must give way to the
need to protect a plaintiff who is unable to protect himself or herself.” Tzolov, Cal.App.3d at 120.
The need to protect continues “so long as the plaintiff remains incompetent.” Id. To hold that a
tolling statute terminates prior to a disabled person becoming competent “would constitute
tampering with the significant public policy reflected” in tolling statutes: “the protection and
preservation of the substantive rights of mentally incompetent persons.” Paavola v. Saint Joseph
Hospital Corp., 325 N.W. 2d 609, 611 (Mich. Ct. App. 1982). Courts will not imply exceptions to
disability tolling statutes where they have not been expressly provided by the legislature. See
Young, 770 P. 2d at 187; O'Brien, 541 N.E.2d at 338.
¶ 29 Finally, the equitable doctrine of laches bars an action where an unreasonable delay in
bringing a suit has caused a party to be misled, to be prejudiced or to take action it would not have
otherwise taken. Valdovinos v. Tomita, 394 Ill. App. 3d 14, 18 (2009). A disabled person “cannot
be held accountable for any apparent delay, negligence, or laches in seeking redress through the
12 courts, and he is not affected by the limitations period in the statute.” Haas, 82 Ill. App. 3d at 349.
Thus, a suit cannot be dismissed based on the defense of laches where the victim is disabled. Van
Buskirk, 148 Ill. at 26; Dodge v. Cole, 97 Ill. 338, 349-50 (1881); Haas, 82 Ill. App. 3d at 349;
Valdovinos, 394 Ill. App. 3d at 18.
¶ 30 In this case, we have been asked to determine whether the filing of a cause of action by a
representative of a disabled person stops tolling the applicable disability statute so that the statutes
of limitations and repose bar the addition of a new defendant to the cause of action. We answer
that question in the negative, finding that tolling due to a disability terminates only upon the
occurrence of one of two events: (1) the death of the disabled person; or (2) the removal of the
disability. See Zayed, 2019 IL App (1st) 181552, ¶ 28. Because Andrules was still alive and
disabled when Gavlin filed the claim against Lakewood, it was not untimely. The trial court
properly denied Lakewood’s motion to dismiss.
¶ 31 CONCLUSION
¶ 32 For the foregoing reasons, we answer the certified question in the negative.
¶ 33 Certified question answered; cause remanded.