specially concurring:
Although I do not disagree with the holding of my colleagues in this case, I do not agree with some of the conclusions and reasoning of the majority opinion and I, therefore, specially concur.
The majority opinion states that “we must give section 21.1 a prospective construction.” (95 Ill. 2d at 235-36.) However, the majority then holds that the causes of action should not have automatically been dismissed for failure to comply with the four-year cutoff provision of that section. Instead, the opinion states that the court should have determined whether these actions were filed within a reasonable time after the effective date of the 1976 amendment. The causes are then remanded to the trial court, where such a determination must be made. The opinion is not consistent, and the two parts of the opinion just referred to are contradictory.
If the 1976 amendment is to be given prospective application as the opinion first states, then it would not apply to these cases at all and they would be governed by the prior statute of limitations. “A prospective statute, as its name implies, operates on conduct, events, and circumstances which occur after its enactment.” (2 A. Sutherland, Statutory Construction sec. 41.01, at 245 (4th ed. 1973).) By holding that the trial court must determine whether the causes of action were filed within a reasonable time after the effective date of the 1976 amendment, the court is applying the amendment to these cases; that is, it is applying the 1976 amendment retroactively. I agree that it should be applied retroactively to these cases and that the trial court should determine whether the cases were filed within a reasonable time after the effective date of the 1976 amendment.
The general rule is that there is a presumption in favor of prospective application of amendatory legislation. (People ex rel. Manczak v. Carpentier (1954), 3 Ill. 2d 556, 559.) However, in Orlicki v. McCarthy (1954), 4 Ill. 2d 342, this court held that statutes of limitation are procedural in nature and, as such, should be applied retroactively unless a contrary intent is apparent. The majority opinion attempts to distinguish the holding of this court in Orlieki from the cases now before us. The majority notes that Orlieki involved a statutorily created remedy, whereas the present cases are based on common law negligence. This distinction has nothing to do with the holding in Orlieki that statutes of limitations are procedural and are to be applied retroactively. Whether such a statute may be applied retroactively to cut off a cause of action is another matter, and will be discussed later.
Prior to Orlieki, the decisions in this State on this subject were not uniform. However, Orlieki settled the question in this State in conformity with the accepted law on this subject. (See 2 A. Sutherland, Statutory Construction sec. 41.09, at 281 (4th ed. 1973); Annot., 79 A.L.R.2d 1080 (1961).) The intent of the legislature that the amendment should apply retroactively is revealed in the language of the amendment. In Orlieki the court found an expression of intent that the amendment be applied retroactively in the language of the amendment under consideration in that case, which stated, “every action hereunder shall be commenced within two years next after the cause of action accrued.” (Orlicki v. McCarthy (1954), 4 Ill. 2d 342, 353.) The language of the amendment in our case is just as clear:
“No action for damages for injury or death *** shall be brought more than 2 years after the date on which the claimant knew *** of the existence of the injury *** 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 ***.” (Ill. Rev. Stat. 1981, ch. 83, par. 22.1.)
This language speaks not of future actions but is a limitation on the bringing of all actions.
Another statutory-construction aid which Orlieki found compelling is equally compelling in our case. Orlieki stated that legislative intent may be derived not only from the language used, but also from the evil to be remedied:
“The evil to be eliminated by the amendment was the prolonged liability for a period of five years of dram shop owners and operators, who rarely have any actual knowledge of the events upon which their liability is based. The statutory objective of eliminating this prolonged liability would be effectuated by giving the amendment a retroactive application.” (Orlicki v. McCarthy (1954), 4 Ill. 2d 342, 353.)
The evil to be eliminated by the amendment to the dram-shop act in Orlicki is strikingly similar to the evil sought to be eliminated by the amendment we are now considering. In Anderson v. Wagner (1979), 79 Ill. 2d 295, 305-11, this court noted that the evil the legislature attempted to eliminate by the amendment to the limitation statute involved the extended exposure to liability by the application of the discovery rule to medical malpractice cases. This court stated in Anderson:
“The discovery rule was thought to have played a significant role in the medical malpractice crisis.” (Anderson v. Wagner (1979), 79 Ill. 2d 295, 307.)
Here, as in Orlicki, the statutory objective of eliminating this prolonged liability would be effectuated by giving the amendment retroactive application.
Although the 1976 amendment should be retroactively applied, I agree with the majority that it cannot be applied in such a manner as to deprive one of a vested right. The injured party must have a reasonable time after the effective date of the amendment within which to bring an action. (Hupp v. Gray (1978), 73 Ill. 2d 78.) Under the discovery rule as applied in this State, a “cause of action accrues when the plaintiff knows or reasonably should know of an injury and also knows or reasonably should know that the injury was caused by the wrongful acts of another.” (Nolan v. Johns-Manville Asbestos (1981), 85 Ill. 2d 161, 169.) The amendment to the Limitations Act cannot be applied retroactively to cut off on the effective date of the amendment the causes of action that have accrued prior to the effective date of the enactment. The injured person whose cause of action accrued before the effective date of the amendment must be given a reasonable time, after the effective date, within which to file his complaint. In Anderson v. Wagner this issue was addressed as to the plaintiff Anderson. However, the Woodwards, who were also plaintiffs in the consolidated Anderson case, alleged they learned of the malpractice in February 1976. The amendment became effective in September of 1976 and the Woodwards filed suit on December 30, 1976. The question of the reasonableness of this period of time in which to file suit was not passed on in Anderson. The case did not hold that the Woodwards were instantaneously barred from filing suit by the 1976 amendment, as stated in the majority opinion.
I view the causes of action that accrued before the effective date of the 1976 amendment as falling within the category of cases usually referred to as involving “vested rights,” which cannot be terminated by the amendment. The owner of these vested rights must be given a reasonable time after the effective date of the amendment within which to file suit. I view the causes of action that did not accrue until after the effective date of the amendment differently. The majority opinion states that these causes of action existed even before the injured person had the necessary knowledge to give them vitality as accrued causes of action. That may well be, but in that state of existence, they were inchoate in nature and not vested. The general rule is that where a statute affects inchoate rights, it will be construed retroactively if the legislative intent clearly indicates that retroactive operation is intended. 2 A. Sutherland, Statutory Construction sec. 41.04, at 253 (4th ed. 1973).
However, whether these causes of action are called inchoate or vested is not determinative of whether a limitation statute shortening the period should be construed so as to automatically terminate the causes of action. The question of the validity of the application of a statute rests on subtle judgments concerning the fairness or unfairness of applying the new statutory rule to affect interests which accrued out of events which transpired when a different prior rule of law was in force. One fundamental consideration of fairness is that settled expectations honestly arrived at with respect to substantial interests ought not to be defeated. (2 A. Sutherland, Statutory Construction sec. 41.05, at 260-61 (4th ed. 1973).) The determination of whether the application of the statute unreasonably infringes upon the rights of those to whom it applies involves a balancing and discrimination between reasons for and against the application of the statute to this class of individuals. 2 A. Sutherland, Statutory Construction sec. 41.05, at 259 (4th ed. 1973).
Although the rights of an injured person before obtaining knowledge of his cause of action, as noted above, are inchoate, I do not believe that these rights should be terminated by a statutory amendment on its effective date. The rule of reasonableness should be applied to these inchoate rights similar to its application to accrued or vested rights. This rule of reasonableness can be applied within the framework of and in accordance with the legislative intent manifested in the 1976 amendment.
The amendment under consideration actually contains two limitation periods: a limitation on the time within which the suit must be filed (two years), and a limitation on the time within which the injured person must discover that a cause of action exists (four years). The 1976 amendment we are considering was preceded by an amendment in 1975. Prior to the 1975 amendment, there was no outside limitation on discovery. All that was required was that the suit had to be started within two years after discovery of the cause of action. The 1975 amendment placed an outside limitation of five years within which the cause of action had to be discovered and suit started. The 1976 amendment lowered that outside limitation to four years. In order to protect these inchoate rights or causes of action, if the occurrence out of which they arose happened more than four years before the effective date of the 1976 amendment, not only would I hold that the injured person should have a reasonable time after his cause of action accrued, that is, after he discovered he had a cause of action, within which to file his complaint, but I would also hold that the injured person would have a reasonable time after the effective date of the amendment within which to discover that cause of action existed.
It is clearly the intent of the General Assembly as expressed in this amendment that the time within which the cause of action may be discovered cannot remain open ended. The language of the amendment clearly indicates that the limitations stated in the amendment apply to all actions filed for medical malpractice. The amendment specifically states that in no case shall an action be filed more than four years after the date of the occurrence.
In balancing the rights of injured persons against the need to correct the evil of the extended exposure to liability created by the discovery rule, the legislature concluded that it was reasonable to require that an injured person discover and commence his medical malpractice action within four years after the occurrence. Consistent with this intent is a requirement that a person injured prior to the effective date of the 1976 amendment must discover his cause of action and file his complaint within four years after the effective date of the amendment. A person who was negligently injured by a medical practitioner one day after the effective date of the 1976 amendment loses his right to file a suit for recovery for his injuries if his suit has not been filed within four years after the occurrence. It is reasonable to require that a person similarly injured one day before the effective date of the 1976 amendment discover his cause of action and file his suit within four years after the effective date of the amendment. It is true that this application of the amendment may terminate a right to file suit before an individual becomes aware of his injury. However, this is also true of those who are injured after the effective date of the amendment. We noted in Anderson that such a termination of a cause of action has been held not to constitute a due process violation. Anderson v. Wagner (1979), 79 Ill. 2d 295, 311-12.
For the reasons herein stated, I specially concur in the holding of the majority opinion.
UNDERWOOD and MORAN, JJ., join in this special concurrence.