No. 3--96--0499
_________________________________________________________________
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1997
PAUL A. FRANKLIN, ) Appeal from the Circuit Court
) of the 14th Judicial Circuit,
Plaintiff-Appellant, ) Henry County, Illinois,
)
v. ) No. 93 L 24
)
RICHARD CERNOVICH, M.D., ) Honorable
) Jay Hanson,
Defendant-Appellee. ) Judge, Presiding.
________________________________________________________________
JUSTICE SLATER delivered the opinion of the court:
________________________________________________________________
In this case we must determine whether the two-year statute
of limitations for bringing a medical malpractice action (735
ILCS 5/13-212(a) (West 1994)) applies when the plaintiff's cause
of action accrued while he was a minor. We find that it does,
but that the limitations period does not begin to run until the
plaintiff reaches the age of 18.
Facts
Plaintiff Paul Franklin was injured in an automobile
accident and was treated by the defendant, Dr. Richard Cernovich,
from June 26, 1988, through July 15, 1988. Plaintiff was 16
years old at that time. On July 16, 1988, plaintiff went to St.
Francis Hospital where an x-ray revealed that plaintiff had
suffered an undiagnosed hip fracture. Plaintiff filed suit for
medical malpractice on March 17, 1993, alleging, inter alia, that
defendant was negligent in failing to timely diagnose the hip
fracture. Defendant filed a motion for summary judgment on the
basis that plaintiff failed to sue within two years of reaching
the age of majority. The trial court granted the motion, ruling
that plaintiff had two years to file suit from the time he
discovered the injury on July 16, 1988. The court also ruled
that the eight-year limitations period referred to in subsection
(b) of section 13-212 of the Code of Civil Procedure (the Code)
(735 ILCS 5/13-212(b) (West 1994)) was a statute of repose rather
than a statute of limitations and therefore it did not apply.
Discussion
On appeal, plaintiff contends that the trial court erred in
applying the two year statute of limitations contained in
subsection (a) of section 13-212 of the Code. Plaintiff
maintains that subsection (b) is both a statute of limitations
and a statute of repose, and it exclusively applies to causes of
action which occur and accrue during minority.
Section 13-212 provides:
"Physician or hospital. (a) Except as
provided in Section 13-215 of this Act, no
action for damages for injury or death
against any physician *** 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, whichever of such date
occurs first, 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.
(b) Except as provided in Section 13-215
of this Act, no action for damages for injury
or death against any physician *** shall be
brought more than 8 years after the date on
which occurred that act or omission or
occurrence alleged in such action to have
been the cause of such injury or death where
the person entitled to bring the action was,
at the time the cause of action accrued,
under the age of 18 years; provided, however,
that in no event may the cause of action be
brought after the person's 22nd birthday.
***
(c) 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
(West 1994).
A. Construction and Application of Subsection (b)
of Section 13-212
It is clear that subsection (b) of section 13-212 applies to
plaintiff's cause of action inasmuch as he was 16 years old at
the time his cause of action accrued. What is less clear is the
effect of subsection (b) and whether and to what extent it is
affected by subsection (a). Plaintiff contends that the effect
of subsection (b) is to give a minor plaintiff eight years or
until his 22nd birthday to file suit, whichever occurs first. We
agree. Plaintiff also maintains, however, that the period to
file suit is not affected by plaintiff's knowledge of the
existence of a cause of action. In other words, a 16-year old
plaintiff who knows his injury was caused by negligence on the
day that it occurred, and a 16-year old plaintiff who becomes
aware of medical negligence on his 21st birthday, would each have
one year to file suit. Such an interpretation makes sense only
if subsection (b) is both a statute of repose and a statute of
limitations. However, it is clear that subsection (b) of section
13-212 is a statute of repose, not a statute of limitations,
because it extinguishes a cause of action regardless of whether
plaintiff knew of it or not. See Mega v. Holy Cross Hospital,
111 Ill. 2d 416, 490 N.E.2d 665 (1986) (repose period gives
effect to different policy than that advanced by period of
limitations as it is intended to terminate liability despite
plaintiff's lack of knowledge of cause of action); Highland v.
Bracken, 202 Ill. App. 3d 625, 560 N.E.2d 406 (1990) (statute of
repose is essentially different from statute of limitations;
limitations statute sets time limit which begins to run when
cause of action has ripened, while repose statute extinguishes
cause of action regardless of whether it has accrued); see also
Antunes v. Sookhakitch, 146 Ill. 2d 477, 588 N.E.2d 1111 (1992)
(referring to subsection (b) of section 13-212 as containing an
eight-year repose period). Therefore, the effect of subsection
(b) is to establish an absolute limit for bringing suit of 8
years or until age 22 for minors injured by medical malpractice,
regardless of the plaintiff's lack of knowledge of the cause of
action.
B. Construction and Application of Subsection (a)
of Section 13-212
The remaining question is how the two-year statute of
limitations contained in subsection (a) of section 13-212 affects
minors injured by medical malpractice. The trial court ruled
that a minor plaintiff has two years to file suit from the date
on which he knew or should have known of the injury. Plaintiff
maintains that subsection (a) has no effect, because subsection
(b) applies exclusively to medical malpractice claims that accrue
during minority. Such an argument ignores, however, the rule of
statutory interpretation requiring a statute to be evaluated as a
whole, with each section examined in relation to every other
section. Bonaguro v. County Officers Electoral Board, 158 Ill.
2d 391, 634 N.E.2d 712 (1994); Scadron v. City of Des Plaines,
153 Ill. 2d 164, 606 N.E.2d 1154 (1992).
Plaintiff relies on various rules of statutory construction
to support his argument that subsection (b) of section 13-212 is
the exclusive and controlling provision applicable to minors.
However, "[t]he primary rule of statutory construction, to which
all other rules are subordinate, is to ascertain and give effect
to the true intent of the legislature." People ex rel Baker v.
Cowlin, 154 Ill. 2d 193, 197, 607 N.E.2d 1251, 1253 (1992).
Traditional rules of statutory construction are merely aids to
determining legislative intent, and those rules must yield to
such intent. Collins v. Board of Trustees of the Firemen's
Annuity & Benefit Fund, 155 Ill. 2d 103, 610 N.E.2d 1250 (1993).
Where, as in this case, the statutory language is ambiguous, it
is appropriate to examine the legislative history. Baker, 154
Ill. 2d 193, 607 N.E.2d 1251; see Antunes, 146 Ill. 2d 477, 588
N.E.2d 1111 (examining legislative history of subsection (b) of
section 13-212). It is proper to consider the reasons for
enactment, the circumstances leading to adoption and the ends to
be achieved. In re Marriage of Logston, 103 Ill. 2d 266, 469
N.E.2d 167 (1984). In addition, where a statute has been
amended, a court will note the statutory language before the
change and the defect to be corrected before weighing the entire
statute in light of these considerations. Marriage of Logston,
103 Ill. 2d 266, 469 N.E.2d 167.
Subsection (b) of section 13-212 was enacted in 1987 as an
amendment to section 13-212. Prior to amendment, that section
provided:
"Physician or hospital. No action for
damages for injury or death against any
physician *** 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 receive
notice in writing of the existence of the
injury or death for which damages are sought
in the action, whichever of such date occurs
first, 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 except
as provided in Section 13-215 of this Act.
If the person entitled to bring the
action is, at the time the cause of action
occurred, under the age of 18 years, or under
legal disability or imprisoned on criminal
charges, the period of limitations does not
begin to run until the disability is
removed." (Emphasis added). Ill. Rev. Stat.
1985, ch. 110, par. 13-212.
Because of the statutory language emphasized above, both the
two-year statute of limitations and the four-year period of
repose were tolled until a minor reached the age of 18 years.
This resulted in a potential "long tail" of liability of up to 22
years after the injury occurred. See Antunes, 146 Ill. 2d 477,
588 N.E.2d 1111 (discussing the legislative history of subsection
(b), particularly the statement of Senator Marovitz (85th Ill.
Gen. Assem., Senate Proceedings, May 13, 1987, at 196)). To
reduce this period of potential liability, the legislature
enacted subsection (b) of section 13-212, providing for an eight-
year repose period for minors. Antunes, 146 Ill. 2d 477, 588
N.E.2d 1111. The primary issue in this case is whether the
legislature also intended that the two-year statute of
limitations should apply to a minor who knew or should have known
of his injury. We do not believe such a change was intended.
As indicated above, prior to the 1987 amendment, medical
malpractice claims by minors were subject to neither the two-year
limitations period nor the four-year period of repose. Surely,
if the legislature had intended to impose a two-year statute of
limitations where none had previously existed, such a radical
change in the law would have been reflected in the legislative
history of the amendment. However, we have failed to find any
indication that a two-year limitations period was contemplated.
Instead, we repeatedly find reference to an "eight-year [s]tatute
of [l]imitations." 85th Ill. Gen. Assem., Senate Proceedings,
May 13, 1987, at 197; May 14, 1987, at 74 (statements of Senator
Marovitz); see also 85th Ill. Gen. Assem., House Proceedings, May
20, 1987, at 322 (statement of Representative O'Connell,
referring to the compromise whereby the "statute of limitations"
was "reduced from 22 years to 8 years"). In addition, Senator
Marovitz explained that it was his understanding that over 90% of
medical malpractice cases involving minors were filed within
seven years. Thus the eight-year period would promote certainty
and would aid in determining insurance rates and the length of
time a potential defendant was subject to liability, while "not
unreasonably limiting a plaintiff's ability to bring a lawsuit."
85th Ill. Gen. Assem., Senate Proceedings, May 13, 1987, at 197
(statement of Senator Marovitz). We believe that the complete
absence of any reference to the two-year statute of limitations,
along with clear indications that an eight-year period was
intended, establishes that the general two-year statute of
limitations of subsection (a) does not apply to medical
malpractice claims by minors.
Defendant maintains, however, that even if the two-year
statute of limitations does not apply to a minor's cause of
action, the two-year period begins to run once the minor reaches
age 18. We agree. The clear intent of the legislature in
enacting subsection (b) of section 13-212 was to reduce the
period of potential liability and restrict a plaintiff's ability
to sue. See Antunes, 146 Ill. 2d at 492, 588 N.E.2d at 1118
(legislative history of subsection (b) indicates a legislative
intent to restrict the period for bringing suit, in accord with
the legislative purpose of shortening the "long tail" of medical
malpractice liability). Prior to 1987, section 13-212 provided
that the two-year statute of limitations and four-year period of
repose did not begin to run for a person under 18 until their
"disability" was removed by reaching age 18. Ill. Rev. Stat.
1985, ch. 110, par. 13-212. Thus a person who was aware of his
cause of action had until age 20 to file suit. If the person was
not aware of the existence of the cause of action, he had until
age 22 to file, at which point the four-year statute of repose
would extinguish any liability.
The amended section 13-212 mimics the earlier version by
setting the outside limit for bringing suit at age 22. This is
consistent with the legislative intent to reduce liability while
not "unreasonably limiting" a plaintiff's ability to sue.
However, if the 1987 amendment to section 13-212 is interpreted
as not imposing a two-year statute of limitations upon an 18-year
old plaintiff who is aware of his cause of action, the period
during which suit may be brought would be greater than that
available before amendment. Such a result would expand potential
liability beyond what existed previously and would clearly be
contrary to the legislative goal of limiting liability. We find,
therefore, that the two-year statute of limitations contained in
subsection (a) of section 13-212 began to run on plaintiff's 18th
birthday, March 17, 1990, and expired on March 17, 1992. Since
plaintiff did not file suit until March 17, 1993, the trial court
properly granted defendant's motion for summary judgment.
C. Due Process and Equal Protection
Plaintiff also contends that the trial court's decision
denies his right to due process and deprives him of the equal
protection of the law. However, plaintiff's arguments
essentially revolve around the application of the two-year
statute of limitations to a minor's cause of action. Since we
have held that the two-year limitations period is not applicable
until age 18, plaintiff's assertions are largely irrelevant. Cf.
Thompson v. Franciscan Sisters Health Care Corp., 218 Ill. App.
3d 406, 578 N.E.2d 289 (1991) (holding that subsection (b) of
section 13-212 did not violate due process or deny equal
protection to minors).
D. Prospective v. Retrospective Application
Finally, citing Gilbert v. Sycamore Municipal Hospital, 156
Ill. 2d 511, 622 N.E.2d 788 (1993), plaintiff asserts that
affirming the trial court would "constitute judicial creation of
new law" which should only be applied prospectively. We
disagree.
In Gilbert the supreme court reconciled an inconsistency
between two of its prior decisions and a more recent case by
overruling the older cases. The court applied its decision
prospectively, noting that "[a] new rule or decision will be
given prospective operation whenever injustice or hardship, due
to justifiable reliance on the overruled decisions, would thereby
be averted." (Emphasis added.) Gilbert, 156 Ill. 2d at 529, 622
N.E.2d at 797. Unlike Gilbert, the decision in this case does
not overrule any prior decisions. Instead, we have merely
interpreted the language in the statute in accordance with the
legislature's intent. Judicial interpretation of a statute does
not necessarily constitute a change in the law, and the general
rule is that a decision will be applied retrospectively unless it
is a clear break with the past. Larrance v. Illinois Human
Rights Comm'n, 166 Ill. App. 3d 224, 519 N.E.2d 1203 (1988). We
see no reason in this case to depart from the general rule.
For the reasons stated above, the judgment of the circuit
court is affirmed.
Affirmed.
McCUSKEY, J., concurs.
NO. 3-96-0499
IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT
A.D., 1997
PAUL A. FRANKLIN, ) Appeal from the Circuit Court
) of the 14th Judicial Circuit,
Plaintiff-Appellant, ) Henry County, Illinois
)
v. ) No. 93 L 24
)
RICHARD CERNOVICH, M.D., ) Honorable
) Jay Hanson
Defendant-Appellee. ) Judge Presiding.
JUSTICE BRESLIN specially concurring:
I agree with the majority's decision that the plaintiff was
barred from bringing the present action. However, I do not agree
with the holding that the limitations period does not begin to
run until the plaintiff reaches the age of 18.
In my view, section 13-212 establishes a two-year statute of
limitations for all persons. Additionally, subsection (a) gives
a four-year repose period to adults and subsection (b) gives an
eight-year repose period to minors which may not extend beyond
the individual's 22nd birthday. Last but not least, subsection
(c) tolls the running of the limitations period for all persons
"under a legal disability other than being under the age of 18
***." 735 ILCS 5/13-212(c) (West 1994).
Had the legislature intended to toll the limitations period
for minors, it would have included minors in the tolling
provision in (c). Instead, it specifically excepted them. In my
opinion, this express exclusion of minors in subsection (c)
evidences a clear intent to subject minors to the two-year
limitations period provided in subsection (a).