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Discovery of the Cause of Injury: Illinois Appellate Court Clarifies Statute of Limitations Rule

In order to seek compensation through the legal system, injured people must investigate their potential claims diligently. In Illinois, as in other states, procedural rules place time limits on how quickly people must bring claims after discovering their injuries and their possible claims against responsible parties.

When scientific knowledge of the cause of a particular claim does not yet exist, however, plaintiffs are not required to know the unknowable. The Illinois Court of Appeals made this holding in Mitsias v. I-Flow Corporation, a recent case handled by Steinberg, Goodman & Kalish involving claims for surgical malpractice and products liability.

The case began with what seemed to be a routine shoulder surgery. The plaintiff had hurt her left shoulder while exercising, and underwent surgery to address that on October 24, 2001. An anesthetic device called a "pain pump" was used during this procedure.

Unfortunately, the operation made the condition worse, not better. The plaintiff experienced severe pain from the destruction of cartilage in the shoulder joint - a condition that was diagnosed as glenhumeral chondrolysis.

The plaintiff filed a medical malpractice lawsuit on Oct 22, 2003. But it was not until October 2007, during the deposition of her medical expert, that the plaintiff became aware that recently published medical literature indicated a possible connection between pain pumps and cartilage loss.

After becoming aware of this new information, the plaintiff submitted a voluntary nonsuit of her original medical malpractice suit. On Feb. 11, 2009, she filled her malpractice claims again, this time adding two product liability counts against the manufacturers of the pain pump.

The manufacturers claimed that the products liability claims should not be allowed because Illinois law imposes a two-year statute of limitations in injury cases upon discovery of a claim.

Although the trial court accepted this argument, the Illinois Court of Appeals did not.

The discovery rule, the appeals court said, does not require a plaintiff to be aware of a source of injury when the causal connection to that source is not yet known to science, even if the plaintiff is aware that the injury might have been caused by a wrongful source (medical malpractice, in this case).

To be sure, plaintiffs must diligently investigate their claims; they cannot slumber on their rights. There was no slumber, however, in the Mitsias case.

As the appeals court noted, Angela Mitsias "brought a timely medical malpractice suit within two years of year injury, and her delay in bringing her products liability suit was not due to any lack of diligence on her part, but rather to the fact that the scientific community was not aware of the dangers associated with pain pumps until the summer of 2007."

In other words, an injured plaintiff is not expected to know what is not yet knowable, even by scientists.

Attorney Bruce Goodman took the lead in helping Steinberg, Goodman & Kalish establish this important legal principle.

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