also dissenting:
As is often the case in law, when a result seems unfair, the reasoning underlying the opinion is flawed. Although the majority recognizes the injustice perpetrated by its decision, it blithely attributes responsibility to the legislature. This approach is, if nothing else, consistent with precedent. (See Anderson v. Wagner (1979), 79 Ill. 2d 295, 312 (“Although such a result — a cause of action barred before its discovery — seems harsh and unfair, the reasonableness of the statute must be judged in light of the circumstances confronting the legislature and the end which it sought to accomplish”).) Since this court long ago abdicated its role as protector of those unknowingly injured by medical malpractice (compare Lipsey v. Michael Reese Hospital (1970), 46 Ill. 2d 32, 40-41 (applying discovery rule to medical malpractice), with Anderson, 79 Ill. 2d at 312 (abandoning full application of the rule in deference to the legislature)), I would not expect the court to grant relief to a defendant who may be forced to pay for a physician’s negligence, as well as his own, while the physician goes scot-free. After all, when we require other segments of society to pay for a physician’s negligence we are furthering the legislature’s goal: securing “the continuation of health services” (Anderson, 79 Ill. 2d at 317) by holding down medical liability insurance premiums. When an injured patient, or a physician’s codefendant, is forced to pay for a physician’s negligence, the physician can maintain a comfortable standard of living, the insurance industry can maintain its profit margin, and the rest of us, theoretically, can have access to affordable health care.
As a means to those ends, the legislature has seen fit to enact the medical malpractice statute of repose, which leaves without a remedy a victim of medical malpractice who could not have discovered his injury within the four-year limitation period. By denying a remedy to those few who cannot discover their injuries within the four-year period, the legislature has, in some small way, secured affordable health care for us all. In Anderson, this court deferred to the legislature and held the legislature’s action constitutional.
Unfortunately, deference to the legislature has become so engrained in this court’s psyche that the court is now applying the four-year limitation period to situations beyond the purview of the statute involved, quoting, but then ignoring, the wise words of Dean Prosser which this court cited when it abolished the “no-contribution rule” in Illinois:
“ ‘There is obvious lack of sense and justice in a rule which permits the entire burden of a loss, for which two defendants were equally, unintentionally responsible, to be shouldered onto one alone, according to the accident of a successful levy of execution, the existence of liability insurance, the plaintiff’s whim or spite, or his collusion with the other wrongdoer, while the latter goes scot free.’ Prosser, Torts sec. 50, at 307 (4th ed. 1971).” (Skinner v. Reed-Prentice Division Package Machinery Co. (1977), 70 Ill. 2d 1, 13.)
The language employed in this statute of repose does not require this court to ignore “sense and justice” and deny the City and Penn Trailers the right to bring an action for contribution. To say that the legislature intended such a result is to indulge in unbridled speculation. It may well be that barring an action, for contribution is consistent with what the legislature was attempting to accomplish (rightly or wrongly) when it enacted the statute; however, there is nothing to indicate the legislature actually intended to bar contribution as a means to that end. It would have been consistent for the legislature to have extended the medical malpractice statute of repose to cover all health care providers (Anderson, 79 Ill. 2d at 320); however, it stopped short of that measure. It seems to me that this court acts as a superlegislature when it puts words in the legislators’ mouths.
In any event, even if the legislature did intend to limit the availability of an action for contribution, for the reasons which appear in the latter part of this discussion I believe the four-year limitation period in the medical malpractice statute of repose is unconstitutional when applied to one who could not have timely discovered his right to sue, and I am loath to apply it in this or any other context.
Section 13 — 212(a) of the Illinois Code of Civil Procedure (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 212(a)) provides as follows:
“Except as provided in Section 13 — 215 of this Act [fraudulent concealment], no 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, 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.”
The parties dispute the meaning of the statutory terms “action for damages” and “otherwise.” The majority, employing an uncanny ability to divine legislative intent, holds that these terms subsume an action for contribution. I cannot agree.
As with any statutory provision, the best indication of the intent of the drafters is the language which they voted to adopt. (Coryn v. City of Moline (1978), 71 Ill. 2d 194, 200.) A statutory term which is not defined must be given its ordinary and popularly understood meaning. (People v. Hicks (1984), 101 Ill. 2d 366, 371.) The Restatement, which furnishes scholarly and comprehensive treatment of the “general law of the United States,” defines “damages” in a tort context as “a sum of money awarded to a person injured by the tort of another.” (Restatement (Second) of Torts §902 (1979).) This definition is echoed in a leading law dictionary. (Black’s Law Dictionary 352 (5th ed. 1979).) The term is further defined, generally, as “an award made to a person by a competent judicial tribunal in a proceeding at law or in equity because of a legal wrong done to him by another.” (Restatement (Second) of Torts §902, comment a (1979).) An action for contribution cannot qualify as an “action for damages” under these definitions because, even in the broadest sense, no “legal wrong” has been inflicted upon the party seeking contribution by the party from whom he seeks contribution. Specifically, the party seeking contribution has not been “injured by the tort of another.” The two parties have a similar relationship to the injured plaintiff, but otherwise need not be related to one another. To rely upon the “purpose” behind an enactment — as the majority does — in interpreting an ambiguous term is undeniably appropriate; however, the term in question must be capable of the interpretation ultimately placed upon it. I do not believe an “action for contribution” is congruous with the term “action for damages” as the latter is commonly understood.
Moreover, the term “otherwise,” as used in the statute, should not be interpreted so as to subsume an action for contribution. The aid to statutory construction which logically applies herein is noscitur a sociis, that a word is or may be known from the accompanying words. The meaning of questionable words or phrases in a statute may be ascertained by reference to the meaning of words or phrases associated with it. (Black’s Law Dictionary 956 (5th ed. 1979).) The maxim, while not an inescapable rule, is often wisely applied where a word is capable of many meanings in order to avoid the giving of unintended breadth to a legislative act. (Jarecki v. G.D. Searle & Co. (1961), 367 U.S. 303, 307, 6 L. Ed. 2d 859, 863, 81 S. Ct. 1579, 1582.) The statute of repose provides that “no action for damages for injury or death against any physician *** whether based upon tort, or breach of contract, or otherwise, arising out of patient care” can be brought after the running of the repose period. (Emphasis added.) (Ill. Rev. Stat. 1987, ch. 110, par. 13 — 212(a).) To begin with, the emphasized terms modify the term “action for damages.” Since I believe an “action for damages” does not subsume an action for contribution, I also believe that the emphasized terms, enumerating the theories upon which an action for damages can be based, do not include an action for contribution. Moreover, applying the maxim, the terms preceding “otherwise” appear to be theories upon which a malpractice claimant could premise his suit against a physician. It would seem to follow that “otherwise” refers to other theories upon which an action for damages can be based, beyond the traditional contract and tort theories.
The court’s disposition here is, in essence, in accord with the decision of the appellate court in Hartford Fire Insurance Co. v. Architectural Management, Inc. (1987), 158 Ill. App. 3d 515. This court refers to Hartford in the majority opinion and both the trial and appellate courts relied upon Hartford. At issue in Hartford was the proper interpretation of another statute of repose (construction) which, like the medical malpractice statute of repose, allowed limited use of the discovery rule, but nonetheless set an outer limit for the bringing of an action. As in this case, the specific question in Hartford was whether an action for contribution could be maintained despite the statute’s proscription. The statute, section 13 — 214 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 13 — 214), provides in pertinent part:
“(a) Actions based upon tort, contract or otherwise against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property shall be commenced within 2 years from the time the person bringing an action, *** knew or should reasonably have known of such act or omission.
(b) No action based upon tort, contract or otherwise may be brought against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property after 12 years have elapsed from the time of such act or omission. However, any person who discovers such act or omission prior to expiration of 12 years from the time of such act or omission shall in no event have less than 2 years to bring an action as provided in subsection (a).”
The appellate court in Hartford concluded that the use of the terms “no action” and “otherwise” precluded an action for contribution.
Obviously, the statute construed in Hartford differs from the medical malpractice statute of repose in that “no action” was utilized there, whereas “no action for damages” was employed in the medical malpractice context. I believe the use of different terminology in similar statutes warrants a different result in this case. Beyond this distinction, however, I question the Hartford decision. An antecedent version of the same statute at issue in Hartford (see Ill. Rev. Stat. 1965, ch. 83, par. 24(f)) specifically precluded “any action for contribution or indemnity.” The legislature included this language despite the fact that contribution was not allowed in Illinois at that time. In subsequent versions of the statute the legislature saw fit to remove the quoted language despite this court’s decision in Skinner and the legislature’s enactment of the Contribution Act in 1979 (Ill. Rev. Stat. 1979, ch. 70, par. 301 et seq.). If the legislature intended the construction statute of repose to apply to contribution actions, I find it odd, at the very least, that it deleted language which would have made that intent clear. There is a presumption, albeit rebuttable, that when the legislature amends an act by deleting certain language therefrom, it intends to change the law in that'respect. People v. Youngbey (1980), 82 Ill. 2d 556, 563.
The legislature has, in the past, used language which clearly barred an action for contribution in the context of a similar statute of repose. Without such a clear expression of intent, I would not find it meant to do so here. A clear expression of intent was required in Stephens v. McBride (1983), 97 Ill. 2d 515, 521-22, when this court held that the notice provisions of the Local Governmental and Governmental Employees Tort Immunity Act (Ill. Rev. Stat. 1979, ch. 85, pars. 8 — 101, 8— 102, 8 — 103) do not apply to an action for contribution, noting that the doctrine of contribution was not recognized in Illinois until after enactment of the Act, and that the Act did not purport to deal with contribution actions. The same observations can be made here. The intent of the contribution statute, which the majority more or less ignores, is to reach anyone who is culpable regardless of whether he has been immunized from a direct tort action by some special defense or privilege. (Doyle v. Rhodes (1984), 101 Ill. 2d 1, 9.) The statutory requirement that the negligent party must be “subject to liability in tort” is determined at the time of the injury out of which the right to contribution arises, not at the time the action is brought. (Doyle, 101 Ill. 2d at 10-11.) Simply put, I do not believe the medical malpractice statute of repose requires the barring of an action for contribution.
Beyond that, I view the contribution issue as subsidiary to the constitutional infirmity occasioned by the four-year limitation period in the medical malpractice statute of repose. I realize that the establishment of an outer limit for bringing a medical malpractice action was held constitutional in Anderson, even though this court in Wright v. Central Du Page Hospital Association (1976), 63 Ill. 2d 313, struck down related legislation which would have limited the amount a plaintiff could recover in a medical malpractice action — the result being that the fortunate plaintiff who timely discovers his right to sue is afforded unlimited recovery, while the unfortunate plaintiff who cannot timely discover his right to sue has no remedy at all. In my opinion, this court in Anderson was influenced too much by what it perceived as the judicial trend toward upholding medical malpractice statutes of repose enacted in response to the “perceived” medical malpractice crisis. (Anderson, 79 Ill. 2d at 308-12, 316.) The problem with following trends is that they do not last and, in many cases, derive from the exaltation of popular sentiment over reason.
It now appears that the trend of the 1970s may well have been a wave of hysteria unwarranted by what an increasing number of courts and commentators feel was an “illusory” or “perceived” crisis, the result of intense lobbying pressure by insurance and medical groups. (Kenyon v. Hammer (1984), 142 Ariz. 69, 73, 688 P.2d 961, 964; Hardy v. VerMeulen (1987), 32 Ohio St. 45, 48, 512 N.E.2d 626, 629; Note, The Unconstitutionality of Medical Malpractice Statutes of Repose: Judicial Conscience Versus Legislative Will, 34 Vill. L. Rev. 397, 415 (1989); D. Louisell & H. Williams, Medical Malpractice §20.07, n.55 (Supp. 1979); Aitken, Medical Malpractice: The Alleged “Crisis” in Perspective, Ins. L.J. 90, 96 (1976); Turkington, Constitutional Limitations on Tort Reform: Have the State Courts Placed Insurmountable Obstacles in the Path of Legislative Responses to the Perceived Liability Insurance Crisis?, 32 Vill. L. Rev. 1299, 1299-1300 (1987) (congressional reports and other forums questioned the bona fide nature of the supposed “crisis”); Learner, Restrictive Medical Malpractice Compensation Schemes: A Constitutional “Quid Pro Quo” Analysis to Safeguard Individual Liberties, 18 Harv. J. on Legis. 143, 144 (1981).) Even among those who believe there was a crisis (Redish, Legislative Response to the Medical Malpractice Insurance Crisis: Constitutional Implications, 55 Tex. L. Rev. 759 (1977); McKay, Rethinking the Tort Liability System: A Report From the ABA Commission, 32 Vill. L. Rev. 1219, 1221 (1987)), there are those who believe that the origin of the crisis is not solely attributable to rising payments on medical malpractice claims and, in any event, the legislation enacted in response to the crisis was, for the most part, “ill-conceived, or at least did not perform as intended.” McKay, 32 Vill. L. Rev. at 1220.
The justification given for enacting statutes of repose was the need to deal with the “long tail” of liability created by the discovery rule which supposedly “reduced an insurance company’s ability to predict future liabilities.” (Anderson, 79 Ill. 2d at 307.) Apparently, in the hysteria of the moment, few courts stopped to consider that medical malpractice statutes of repose have a minimal reductive effect on medical malpractice liability insurance premiums, and even if courts did question the wisdom of the strict limitation period, they believed the “crisis” called for a deference to “rational” legislative action, which easily overcame any constitutional objections (see Anderson, 79 Ill. 2d at 315-16), particularly where other jurisdictions had paved the way by holding their statutes constitutional. See Anderson, 79 Ill. 2d at 310 (“All of the cases that our research found have sustained the validity of the statutes”); 79 Ill. 2d at 312 (“Our 4-year time limit is also within the general area of limits that have been set by other States”); 79 Ill. 2d at 316 (“These statutes have been upheld uniformly by courts of review”); 79 Ill. 2d at 317 (“the courts in the cases cited above have upheld the classifications of the legislatures”).
Statistics' suggest the “long tail” effect created by the discovery rule is so minimal — and predictable in any event — that its existence cannot have a meaningful effect upon premiums and legislative abolition of remedies for those affected simply cannot be characterized as “rational.” In striking down Arizona’s medical malpractice statute of repose, the Arizona Supreme Court in Kenyon noted:
“88% of all medical malpractice injuries which result in claims are reported within the first two years following injury, that 95 to 96% of all claims have been reported within three years, 97% within four years, and only 2% are unreported after five years.” (Kenyon, 142 Ariz. at 86, 688 P.2d at 978 (citing U.S. Department of Health Education & Welfare, Pub. No. 73 — 88, Medical Malpractice: Report of the Secretary’s Comrn’n on Medical Malpractice 254 (1973)).)
Obviously, the “long tail” effect is minimal and predictable. The insurance industry surely possesses a fair degree of statistical sophistication and can predict, as did the government, the number of claims which might be filed beyond the four-year period. I see no justification here for limiting the remedy of a person unknowingly injured by medical malpractice. I suggest this is an instance of the “tail” wagging the dog.
Since this court in Anderson found the decisions and trends in other jurisdictions so compelling, perhaps a review of current decisions from other jurisdictions is in order here, even though the court shrank from such a comparison in Mega v. Holy Cross Hospital (1986), 111 Ill. 2d 416, 423. Such a comparison will reveal that there is a trend in many jurisdictions holding statutes of repose, similar to our own, unconstitutional under constitutional provisions virtually indistinguishable from those in our constitution. This is not to say that there is a tidal wave of cases holding statutes of repose unconstitutional, nor would I suggest that we ride the wave for the sake of conformity, even if there were one; however, a significant number of cases have held statutes of repose in a variety of areas unconstitutional. (Medical malpractice statutes of repose: Kenyon v. Hammer (1984), 142 Ariz. 69, 688 P.2d 961 (violated State equal protection clause); Austin v. Litvak (Colo. 1984), 682 P.2d 41 (violated State equal protection guarantees); Shessel v. Stroup (1984), 253 Ga. 56, 316 S.E.2d 155 (violated equal protection clause); Clark v. Singer (1983), 250 Ga. 470, 298 S.E.2d 484 (violated equal protection clause in wrongful death action); Strahler v. St Luke’s Hospital (Mo. 1986), 706 S.W.2d 7 (violated minor’s constitutional right of access to courts); Carson v. Maurer (1980), 120 N.H. 925, 424 A.2d 825 (violated State equal protection guarantees); Gaines v. Preterm-Cleveland, Inc. (1987), 33 Ohio St. 3d 54, 514 N.E.2d 709 (violated State equal protection, due process, and right-to-a-remedy provisions); Hardy v. VerMeulen (1987), 32 Ohio St. 3d 45, 512 N.E.2d 626 (violated right-to-a-remedy provision of State constitution); Mominee v. Scherbarth (1986), 28 Ohio St. 3d 270, 503 N.E.2d 717 (violated minor’s State due process rights); Reynolds v. Porter (Okla. 1988), 760 P.2d 816 (statute limiting scope of recovery constituted special legislation); Neagle v. Nelson (Tex. 1985), 685 S.W.2d 11 (violated State open courts provision); accord Nelson v. Krusen (Tex. 1984), 678 S.W.2d 918; Sax v. Votteler (Tex. 1983), 648 S.W.2d 661 (violated minor’s due process guarantees as set forth in open courts provision of State constitution). Products liability statutes of repose: Lankford v. Sullivan, Long & Hagerty (Ala. 1982), 416 So. 2d 996 (violated open courts provision); Diamond v. E.R. Squibb & Sons (Fla. 1981), 397 So. 2d 671 (violated open courts provision); Hanson v. Williams County (N.D. 1986), 389 N.W.2d 319 (violated equal protection clause); Heath v. Sears, Roebuck & Co. (1983), 123 N.H. 512, 464 A.2d 288 (violated equal protection clause); Kennedy v. Cumberland Engineering Co. (R.I. 1984), 471 A.2d 195 (violated right-to-a-remedy provision); Berry v. Beech Aircraft Corp. (Utah 1985), 717 P.2d 670 (violated open courts provision). Architects and builders statutes of repose: Shibuya v. Architects Hawaii, Ltd. (1982), 65 Haw. 26, 647 P.2d 276 (violated equal protection clause); Daugaard v. Baltic Cooperative Building Supply Association (S.D. 1984), 349 N.W.2d 419 (violated open courts provision); Phillips v. ABC Builders, Inc. (Wyo. 1980), 611 P.2d 821 (violated open courts and equal protection provisions).) The foregoing list is by no means all-inclusive, but I think the point has been made: many jurisdictions now hold statutes of repose unconstitutional.
Of course, sheer force of numbers does not guarantee a correct or just result — the approach taken in Anderson is testament to that — therefore I will discuss, briefly, some of the cases aforementioned, and the rationales employed therein. The first group of cases below is significant because the courts found statutes of repose violative of equal protection guarantees by applying standards of review ranging from strict scrutiny to the rational basis test. Although this court in Anderson applied the less stringent “rational basis” test to Illinois’ medical malpractice statute of repose, much of the reasoning in the cases which follow is applicable under the rational basis test applied in both special legislation and equal protection analyses. Under this analysis, a classification must be reasonable, not arbitrary, and must be based upon some ground of difference having a fair and substantial relation to the object of the legislation, so that all persons similarly circumstanced shall be treated alike. Jenkins v. Wu (1984), 102 Ill. 2d 468, 477.
In Kenyon, the Arizona Supreme Court, under constitutional provisions more stringent than our own, held that the right to recover damages for bodily injury is a “fundamental” right and consequently:
“The abolition of the discovery rule for some medical malpractice claimants is valid only if it serves a compelling state interest and is necessary to the attainment of that interest.” (Kenyon, 142 Ariz. at 83, 688 P.2d at 975.)
The court found Arizona’s medical malpractice statute of repose failed to pass constitutional muster under the foregoing test. With regard to the first component of the two-part test, the court stated:
“[W]e believe that the state has neither a compelling nor legitimate interest in providing economic relief to one segment of society by depriving those who have been wronged of access to, and remedy by, the judicial system. If such a hypothesis were once approved, any profession, business or industry experiencing difficulty could be made the beneficiary of special legislation designed to ameliorate its economic adversity by limiting access to the courts by those whom they have damaged. Under such a system, our constitutional guarantees would be gradually eroded, until this state became no more than a playground for the privileged and influential.” (Kenyon, 142 Ariz. at 84, 688 P.2d at 976.)
Notwithstanding Anderson’& muddled distinctions between “real” and “nonreal” special legislation (Anderson, 79 Ill. 2d at 312-15), this court approved in Anderson the “hypothesis” rejected in Kenyon.
The Kenyon court continued its analysis, “assuming” that the State’s “compelling” interest could be found in the State’s interest in making quality medical care available to the public at reasonable cost. However, even assuming the existence of a compelling State interest, the court found no demonstrated necessity for the legislative enactments.
First, the court noted that malpractice premiums had not declined and health care costs had “increased to the crisis point.” (Kenyon, 142 Ariz. at 85, 688 P.2d at 977.) Citing a contemporaneous California case for the statistics cited therein (American Bank & Trust Co. v. Community Hospital of Los Gatos-Saratoga, Inc. (1983), 33 Cal. 3d 674, 660 P.2d 829, 190 Cal. Rptr. 371), the Kenyon court observed that, despite the California malpractice act, the average cost of care in California hospitals had risen from $217 “per patient day” in 1975, to $547 per patient day in 1981, and to $620 per patient day in 1982. The court further noted that statistics cited in American Bank indicated that the enactment of the malpractice act in California reduced the cost of malpractice coverage by only $1 per patient day. The court observed:
“In light of a present cost of $620 per patient per day, a $1.00 reduction, even if entirely attributable to the existence of the malpractice act, seems insignificant and irrelevant to the problem.” Kenyon, 142 Ariz. at 85, 688 P.2d at 977.
Continuing its analysis, the Kenyon court cited decisions from other jurisdictions which had held that shortening a statute of limitations to the extent that claims were barred before they could reasonably be brought was neither rationally nor substantially related to the legislators’ objectives and was so unreasonable and arbitrary that it violated the equal protection provisions of various State constitutions. (Kenyon, 142 Ariz. at 85, 688 P.2d at 977.) Addressing the insurance industry’s supposed need for statistical certainty, the court observed:
“If prompt actuarial certainty is required, reduction of the statute of limitations would have been a much more rational method of achieving the compelling state interest than abolition of the discovery rule and consequent abrogation of the few and unusual claims where, because of lack of knowledge *** the claimant was unable to bring the action within flat time limits.” (Kenyon, 142 Ariz. at 86, 688 P.2d at 978.)
The court in Kenyon concluded that the-“long tail” created by the discovery rule had been of little significance in the rise of medical liability insurance premiums and that the problem could have been handled by other measures, such as shortening the statute of limitations for medical malpractice cases or regulation of insurance premiums and procedures. Kenyon, 142 Ariz. at 87, 688 P.2d at 979.
Another case worthy of note is Hanson v. Williams County (N.D. 1986), 389 N.W.2d 319. Hanson involved a products liability statute of repose passed by the North Dakota legislature which required tort actions to be brought within 10 years of the date of initial purchase of the product or within 11 years of its manufacture. Plaintiff argued that the statute violated “open courts,” equal protection, and due process provisions of the North Dakota Constitution; however, the North Dakota Supreme Court addressed only the equal protection argument. Applying an intermediate standard of review because of the “important substantive right” involved (the right to recover for personal injuries), the court could find no “close correspondence between the classification created by [the statute], and the stated legislative goals as would justify the unequal treatment wrought by [the] statute.” (Hanson, 389 N.W.2d at 328.) The court stated:
“We do not question the Legislature’s conclusion that there may have been a ‘crisis’ facing North Dakota manufacturers because of unaffordable products liability insiirance. We also recognize the importance of the legislative action in attempting to alleviate this problem. We, however, question the solution. ***
*** [W]hen we are dealing with human life and safety we believe that more is required for a [legislative] justification than a reference to the economics of suppliers of goods. Some rational basis must be advanced for the selection of the period of years *** other than the economic interests of the manufacturers or suppliers.” Hanson, 389 N.W.2d at 328.
The supreme court of Ohio, in Gaines v. Preterm-Cleveland, Inc. (1987), 33 Ohio St. 3d 54, 514 N.E.2d 709, found a medical malpractice statute of repose violated equal protection, due process, and right-to-a-remedy provisions in the Ohio Constitution. First, the court reaffirmed its earlier decision in Hardy v. VerMeulen (1987), 32 Ohio St. 3d 45, 512 N.E.2d 626, wherein the court held that the State’s four-year statute of repose for medical malpractice actions was unconstitutional, as violative of the “right-to-a-remedy provision of Section 16, Article I of the Ohio Constitution,” insofar as the statute barred the claims of medical malpractice plaintiffs “who did not know or could not reasonably have known of their injuries.” (Gaines, 33 Ohio St. 3d at 57, 514 N.E.2d at 713-14, citing Hardy, 32 Ohio St. 3d at 45, 512 N.E.2d at 627.) Applying a rational basis test, the court went on to extend the breadth of Hardy, holding that the statute violated State equal protection guarantees in that it barred the claims of medical malpractice litigants who discover their malpractice injuries before expiration of the four-year repose period but do not thereafter have “a reasonable period for seeking legal recourse.” Gaines, 33 Ohio St. 3d at 58-59, 514 N.E.2d at 714-15.
Moreover, the court held the statute denied claimants due process of law. The court noted that the statute of repose, in some cases, cut off an injured individual’s right to pursue his claim without affording him a reasonable alternative. The court continued:
“Although it may be stated that this severance of rights might conceivably bear ‘a real and substantial relation to the *** general welfare of the public’ by decreasing the sheer numbers of medical malpractice claims, thereby reducing malpractice insurance premiums and lessening the cost of health care, no evidence of such an effect has been brought forward. However, even assuming [the statute] has actually achieved this end, we find the means of achieving it are unreasonable and arbitrary, and therefore violative of due process.
As explained swpra, the severance of an individual’s right to pursue a claim based on when he discovers the existence thereof is not justified by any distinguishing feature of such a person or of his claim. The fact that he did not discover his claim [in a timely manner] does not necessarily indicate that he ‘slept on his rights’ since in many cases he will be unaware that he had any rights.” Gaines, 33 Ohio St. 3d at 59, 514 N.E.2d at 715.
The latter sentiment in Gaines has been expressed in other contexts. For example, in Heath v. Sears, Roebuck & Co. (1983), 123 N.H. 512, 524, 464 A.2d 288, 294, the supreme court of New Hampshire noted that the discovery rule is premised on the “manifest unfairness of foreclosing an injured person’s cause of action before he has had even a reasonable opportunity to discover its existence.” The Heath court captured “[t]he unreasonableness inherent in a statute which eliminates a plaintiff’s cause of action before the wrong may reasonably be discovered” (Heath, 123 N.H. at 525, 464 A.2d at 295-96) when it quoted Judge Frank’s dissent in Dincher v. Marlin Firearms Co. (2d Cir. 1952), 198 F.2d 821, 823, wherein he eloquently condemned the “Alice in Wonderland” effect of such a result:
“Except in topsy-turvy land, you can’t die before you are conceived, or be divorced before ever you marry, or harvest a crop never planted, or burn down a house never built, or miss a train running on a non-existent railroad. For substantially similar reasons, it has always heretofore been accepted, as a sort of logical ‘axiom,’ that a statute of limitations does not begin to run against a cause of action before that cause of action exists, i.e., before a judicial remedy is available to a plaintiff.”
To be sure, the medical malpractice statute of repose can operate in such a way as to create unjust, even ludicrous, results. The opinions set forth above suggest that the statute is vulnerable to attack on constitutional grounds no matter what standard of judicial review is employed. I believe the right to bring an action for personal injuries is a fundamental right requiring application of a strict scrutiny standard in an equal protection analysis. I believe the “certain remedy” provision of the Illinois Constitution (Ill. Const. 1970, art. I, §12) requires this result. The supreme court of Montana has accorded its citizens similar rights under a right-to-a-remedy provision similar to our own. White v. State (Mont. 1983), 661 P.2d 1272, 1274-75 (right to bring an action for personal injuries is “fundamental”).
Granted, this court in Anderson has already decided that those injured by reason of medical malpractice in Illinois are less worthy of protection (rational basis test applied) than their counterparts residing in other jurisdictions. I hope — but do not anticipate — that this court would reconsider its position. This court has found acceptable the “hypothesis” rejected in Kenyon and has determined that the medical malpractice statute of repose does not constitute special legislation. For my part, I find the position taken in Kenyon the more logical one. The legislature has conferred a “special benefit or exclusive privilege on a *** group of persons [medical, insurance, and certain other professional groups protected by statutes of repose] to the exclusion of others similarly situated.” (Jenkins, 102 Ill. 2d at 478.) By means of the medical malpractice statute of repose, the legislature has differentiated between those who can discover their injuries and their right to sue within the four-year period and those who cannot. The latter have been deprived of any remedy, through no fault of their own, so that the insurance industry will continue to provide liability insurance to the medical profession and the medical profession will continue to provide health care to the rest of us. I will not be a party to the condonation of this form of economic blackmail, sacrificing a few innocent people for whatever minimal benefit the public and certain politically powerful commercial interests may derive. It has always been my understanding that constitutional guarantees are intended to protect individuals against the oppression which misguided popular sentiment and influential interests might engender. In order to do so, however, courts must be willing to stand their ground against legislative assaults on those guarantees. This court has not done so. Even under the deferential rational basis test applied by this court, statistics heretofore cited demonstrate that the arbitrary four-year period of repose does not have a “fair and substantial relation to the object of the legislation.” (Emphasis added.) (Jenkins, 102 Ill. 2d at 477.) It is, therefore, violative of equal protection guarantees and constitutes special legislation. Moreover, it violates the “certain remedy” provision of our constitution.
The “certain remedy” provision in the Illinois Constitution guarantees the citizens of this State a right to a remedy and justice:
“Every person shall find a certain remedy in the laws for all injuries and wrongs which he receives to his person, privacy, property or reputation. He shall obtain justice by law, freely, completely, and promptly.” (Ill. Const. 1970, art. I, §12.)
In Mega, this court followed precedents which interpreted this constitutional provision as a mere “expression of a philosophy.” (Mega, 111 Ill. 2d at 424; see Pierce v. Board of Education (1977), 69 Ill. 2d 89, 92-93; People v. Dowery (1975), 62 Ill. 2d 200, 207-08.) I do not view the “certain remedy” guarantee in this light. When we begin to view the provisions of our constitution as mere expressions of philosophy, we emasculate them. Thus, constitutional rights, such as certain Federal guarantees already eroded by judicial decision, become mere echoes of a philosophy of a bygone era, swallowed up by exceptions to the rule. This is not to say that I believe an injured person should have an unlimited time to bring his action; a person who knows he has a right to sue, or should know, can be required to bring his action within a certain period of time. However, one who does not, or cannot, know he has an injury or a right to sue, must be given an opportunity to do so. I applaud the courts which rendered the decisions which I will discuss hereafter, for they put teeth in their constitutional provisions and do not abandon their injured citizens for the sake of economics.
The supreme court of Texas is one such court. Article I, section 13, of the Texas Constitution provides in pertinent part:
“All courts shall be open, and every person for an injury done him, in his lands, goods, person or reputation, shall have remedy by due course of law.” (Tex. Const, art. I, §13.)
In Neagle, the supreme court of Texas held unconstitutional a medical malpractice statute of repose which required the filing of an action “ ‘within two years *** of the breach or tort complained of or from the date the *** medical treatment that is the subject of the claim or the hospitalization for which the claim is made is completed.’ ” (Neagle, 685 S.W.2d at 12, quoting Tex. Rev. Civ. Stat. Ann. art. 4590, §10.01 (Vernon 1977).) The court held the offending statute violated the “open courts” provision of the Texas Constitution, in that it abridged a citizen’s right to sue before he had “a reasonable opportunity to discover the wrong and bring suit.” Neagle, 685 S.W.2d at 12; see also Nelson, 678 S.W.2d at 922.
The supreme court of Ohio in Hardy held a medical malpractice statute of repose unconstitutional on the ground that it denied certain individuals a remedy and thus violated “Section 16, Article I of the Ohio Constitution,” which provides:
“All courts shall be open, and every person, for an injury done him in his land, goods, person, or reputation, shall have remedy by due course of law, and shall have justice administered without denial or delay.” (Ohio Const. art. I, §16.)
The Hardy court found it unnecessary to apply even a rational basis analysis:
“The right-to-a-remedy provision of Section 16, Article I does not require the analysis of rational-basis that is used to decide due process or equal protection arguments against the constitutionality of legislation. The fault in [the statute] is that it denies legal remedy to one who has suffered bodily injury. This the legislature may not do even if it acted with a rational basis.” (Hardy, 32 Ohio St. 3d at 48, 512 N.E.2d at 629.)
I agree that the rational basis test need not be applied to legislative action which has the effect of negating a constitutionally guaranteed “right to a remedy.” There is no balancing to be accomplished — legislative action either denies the right or it does not. Given the interpretation which the majority has placed upon this statute, this piece of legislation denies some individuals a certain remedy.
This court in Mega attempted to justify its emasculation of the certain-remedy provision in this medical malpractice context by reference to several prior decisions of this court (Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161; Tom Olesker’s Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc. (1975), 61 Ill. 2d 129; Williams v. Brown Manufacturing Co. (1970), 45 Ill. 2d 418; Rozny v. Marnul (1969), 43 Ill. 2d 54) wherein the court expressed concern that the passage of time might create “problems of proof” so as to “pose a danger of injustice.” (Mega, 111 Ill. 2d at 425.) What is not apparent from the quotations utilized in Mega is that in each of the cited cases the court applied the discovery rule notwithstanding the concern expressed therein. (Nolan, 85 Ill. 2d at 168-69 (problems of proof outweighed by hardship to plaintiff); Dun & Bradstreet, 61 Ill. 2d at 137 (no suggestion of any increased problems of proof); Williams, 45 Ill. 2d at 432 (adequate safeguards exist against injustice in that plaintiff has burden of proof and products liability defendant is in a better position to know the condition of its product when it left its control); Rozny, 43 Ill. 2d at 71 (no evidence that passage of time would make defense more difficult).) As was noted in Williams, since plaintiff has the burden of proof, any “problems of proof” will probably be his. Moreover, the medical defendant will normally have superior access to records and evidence. In my opinion, any “danger of injustice” posed by “problems of proof” is far outweighed by the injustice of denying an innocent plaintiff a certain remedy.
Our constitution contains a right-to-a-remedy provision similar to one found in the South Dakota Constitution. This court has interpreted our provision to be merely “an expression of philosophy.” (Mega, 111 Ill. 2d at 424.) The South Dakota Supreme Court has used its provision to strike down a products liability statute of repose, stating:
“Our constitution *** is solid core upon which all our state laws must be premised. Clearly and unequivocally, our constitution directs that the courts of this state shall be open to the injured and oppressed. We are unable to view this constitutional mandate as a faint echo to be skirted or ignored.” Daugaard v. Baltic Cooperative Building Supply Association (S.D. 1984), 349 N.W.2d 419, 425.
I believe Anderson, Mega, and their progeny should be overruled. The doctrine of stare decisis is not an inflexible rule requiring this court to blindly follow precedents and adhere to prior decisions. (Molitor v. Kaneland Community Unit District No. 302 (1959), 18 Ill. 2d 11, 26.) Anderson and Mega were wrongly decided. It makes no sense to punish innocent victims of medical malpractice ad infinitum in an effort to maintain consistency. When a thing is wrong, it is wrong. The longer we wait to right this wrong, the longer the injustice will continue and the more difficult it will be to rectify the error, embedded in case law through usage.
“ ‘Justice in this case cries out for a remedy. How can anyone be precluded from asserting a claim by a statute of limitations which expires before the discovery of the injury? How can anyone charged with the responsibility of administering justice allow such an absurdity?’ ” (Emphasis added.) (Mominee v. Scherbarth (1986), 28 Ohio St. 3d 270, 293, 503 N.E.2d 717, 735 (Douglas, J., concurring, quoting Amer v. Akron City Hospital (1976), 47 Ohio St. 2d 85, 93, 351 N.E.2d 479, 485 (Celebrezze, J., dissenting)).)
I cannot subscribe to the majority opinion.
JUSTICES WARD and CLARK join in this dissent.