dissenting:
The principal opinion determines that section 21.1 of the Limitations Act (Ill. Rev. Stat. 1977, ch. 83, par. 22.1, effective November 11, 1976), violates section 13, article IV of the 1970 Illinois Constitution, in that it confers special privileges upon physicians and hospitals while denying the benefit of the statute to nurses, chiropractors, dentists, nursing homes and sanitariums and those persons and institutions characterized as in the health care field. No authorities which have considered the issue have been found.
Examination of the several statutes defining the status, authority and obligations of those persons and institutions acting in the respective categories of health care discloses, however, a rational basis for a legislative classification amongst the categories.
The Medical Practice Act (Ill. Rev. Stat. 1977, ch. 111, par. 4401 et seq., formerly Ill. Rev. Stat. 1975, ch. 91, par. 1 et seq.) is stated to be:
“AN ACT to revise the law in relation to the practice of the treatment of human ailments for the better protection of the public health and * *
Section 2 (par. 4403) requires licenses in three categories, i.e., (1) the practice of medicine or any of its branches, (2) any system or method of treatment of human ailments without the use of drugs or medicine and without operative surgery, and (3) midwifery.
Section 12a (par. 4424) provides for the licensing of (1) the practice of medicine in all its branches, (2) the treatment of human ailments without drugs and medicine and without operative surgery, and (3) midwifery, each upon the successful completion of examinations for the respective category. The practice of chiropractic is included in the category authorizing the treatment of human ailments without the use of drugs or surgery. Par. 4411.
One also finds a statutory classification of those institutions which provide treatment for human ailments. The Hospital Licensing Act (Ill. Rev. Stat. 1977, ch. 111½, par. 142 et seq.) defines a hospital as an institution:
° for the diagnosis and treatment or care * * * to obtain medical, including obstetric, psychiatric and nursing, care of illness, disease, injury, infirmity or deformity.” Ill. Rev. Stat. 1977, ch. 111½, par. 144(A).
Section 3(A) (b) cites:
“The term ‘Hospital’ includes general and specialized hospitals, tuberculosis sanitaria, mental or psychiatric hospitals and sanitaria, and includes maternity homes, and lying-in homes ° * Ill. Rev. Stat. 1977, ch. 111½, par. 144(A)(b).
Nursing homes, which the principal opinion includes in the health care category have, however, a limited and defined status under the statute. Section 1 of the Nursing homes, sheltered care homes, and homes for the aged Act (Ill. Rev. Stat. 1977, ch. 111½, par. 35.16) defines such institutions as those which provide “maintenance, personal care or nursing, * * * who by reason of illness or physical infirmity require personal care or nursing * *
Lesser categories are stated to be “sheltered care homes and homes for the aged.” These latter designated categories are specifically stated to not include hospitals, sanitariums or “other institutions whose principal activity or business is the diagnosis, care, and treatment of human illness.” Ill. Rev. Stat. 1977, ch. 111½, par. 35.16(b).
The statute (ch. 111½, par. 35.16) defines “maintenance” as food, shelter and laundry; “personal care” is defined as professional or practical nursing of persons who are under the care of a licensed medical practitioner.
The Illinois Nursing Act (Ill. Rev. Stat. 1977, ch. 111, par. 3405), defines “professional nursing” in its most significant form as “the administration of medications and treatment prescribed by a licensed physician.” It is expressly stated that nursing “shall not be deemed to include those acts of medical diagnosis or prescription of therapeutic or corrective measures which are properly performed only by physicians licensed by the State of Illinois.” By reason of the limited professional discretion and prerogatives it is said in 70 C.J.S. Physicians and Surgeons §54, at 976 (1951):
“A nurse is not liable for the malpractice of a physician. A nurse who follows the order of the physician is not hable if injury results from the treatment as prescribed and the physician alone is liable.”
Thus, the argument of plaintiffs that the statute produces the absurd result that a physician might be guilty of malpractice but under the statute he would escape liability while a nurse whose negligence may have consisted solely in carrying out the instructions of the physician could be held liable is not persuasive.
It is clearly apparent that the legislature has provided a rational classification between those persons who are authorized by license to treat human ailments by prescribing medicine or drugs and performing surgery and those who do not so act. There is a similar distinction between those institutions which provide diagnosis, treatment and care, from those which only provide maintenance and nursing as defined by statute.
The legislative dichotomy between individuals who treat with drugs and operative surgery and those who treat by less dramatic methods is a sound basis in reason and principle for purposes of legislation which distinguishes physicians as a distinct and separate class from others participating in health care. The same may be said for institutions which provide diagnosis and treatment as distinguished from those which provide the several categories of lesser care.
The statutory definitions of professional status and responsibilities state “a sound basis, in reason and principle, for regarding the class of individuals as a distinct and separate class for the purpose of the particular legislation.” Phillips v. Browne (1915), 270 Ill. 450, 453, 110 N.E. 601, 603; Skinner v. Anderson (1967), 38 Ill. 2d 455, 461, 231 N.E.2d 588, 591.
In Skinner the court said:
“Of course, section 22 of article IV does not prohibit legislative classification. It does, however, require that the classification be reasonably related to the legislative purpose. * * *.” (38 Ill. 2d 455, 460, 231 N.E.2d 588, 591.)
The legislature has, in this instance, determined a proper classification.
In Lipsey v. Michael Reese Hospital (1970), 46 Ill. 2d 32, 262 N.E.2d 450, the court considered a malpractice action wherein the cause was controlled by the two-year statute of limitations for personal injuries. (Ill. Rev. Stat. 1969, ch. 83, par. 15.) The plaintiff argued that that statute should begin to run and the cause of action accrue when the injuries were known or discovered. The defendant noted the provisions of section 21.1 of the Limitations Act (Ill. Rev. Stat. 1969, ch. 83, par. 22.1), which by its then terms provided that when, in the course of surgical treatment, a foreign substance was left in the body, the cause of action would accrue upon discovery but that no action could be brought more than 10 years following the surgery. From such provision defendant argued that by inference the legislature clearly intended that as to all other forms of malpractice the statute of limitations should run from the time of the negligence.
In construing the statute, the court determined that the cause of action accrued upon the discovery of the injury. The court noted that section 14 of the Limitations Act (Ill. Rev. Stat. 1969, ch. 83, par. 15), did not provide when the cause of action subject to the two-year limitations accrued, but that the court had determined when such cause did accrue. The court said:
“Undeniably it is a judicial function to determine and follow, where it is not legally interdicted, the legislative intention. But we consider, contrary to the defendants’ argument, that there has not been an expression by the legislature prohibiting an adoption of the ‘discovery’ rule.” 46 Ill. 2d 32, 39, 262 N.E.2d 450, 454.
So far as we can ascertain, no court of review has examined the statute at issue (Ill. Rev. Stat. 1975, ch. 83, par. 22.1, as amended by P.A. 79-1474, effective in 1976). It is apparent that since the opinion in Lipsey, the legislature has addressed itself to the “know or should have known” rule as it was applied in Lipsey to the two-year statute of limitations, and has thereupon exercised its legislative judgment to affix a bar to an action brought more than four years after the occurrence in which the claim originates. The present statute suggests that the legislature has considered the reasoning of the court in Lipsey and in Skinner v. Anderson and enacted legislation which, in its judgment, met the judicial requirements determined by the court and that it thereafter stated its legislative objective and policy.
In the cited Wright v. Central Du Page Hospital Association (1976), 63 Ill. 2d 313, 347 N.E.2d 736, the court did not have occasion to examine the constitutionality of the statute here concerned. Rather, it examined a statute limiting the amount which could be recovered under section 4 of Public Act 79-960 (Ill. Rev. Stat. 1975, ch. 70, par. 101). That opinion determined that an action in malpractice was a substantive right arising in the common law and that there was no reasonable basis for limiting full recovery when such right of action had been established.
In the context of a statute of limitations, however, we note Horn v. City of Chicago (1949), 403 Ill. 549, 87 N.E.2d 642. There an owner of land argued that since the constitution provided that private property could not be taken without just compensation and without due process, the statute of limitations could not be applied to bar his action for damages. The court said:
“The legislature may, without violating constitutional guaranties, enact statutes which limit the time within which actions may be brought to enforce demands where there was previously no period of limitation, or which limit, change, and vary existing rules as to limitation of actions, either by shortening or extending the time within which the cause of action may be asserted. (34 Am. Jur. 27, par. 18.) Even a substantive right created by a State constitution is governed and controlled in its enforcement and administration by regulatory and procedural legislation enacted by the General Assembly, which legislative enactments may include a limitation as to the period within which action may be taken to enforce the substantive right. * * 403 Ill. 549, 560, 87 N.E.2d 642, 649.
In such light I would affirm the order of the trial court.