These consolidated cases involve
On the date the complaints in these consolidated cases were filed, section 21.1 of the Limitations Act provided:
“No action for damages for injury or death against any physician or hospital *** 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.
If the person entitled to bring the action is, at the time the cause of action occurred, under the age of 18 years, or insane, or mentally ill, or imprisoned on criminal charges, the period of limitations does not begin to run until the disability is removed.” Ill. Rev. Stat. 1977, ch. 83, par. 22.1.
Plaintiffs Thomas and Marilyn Anderson filed a complaint in the circuit court of Macon County against defendant William Wagner, M.D., on June 23, 1977, alleging that the defendant had failed to inform the plaintiffs that Marilyn had tested positive for rubella in a first trimester pregnancy test given to her late in 1972. Plaintiffs also аllege that defendant failed to inform them of the likelihood of mental retardation in a child born under these circumstances. On May 20, 1973, a child, who later proved to be mentally retarded, was born to
Plaintiffs Charles and Carol Woodward filed suit against defendants Burnham City Hospital and two doctors for malpractice on December 30, 1976, alleging an erroneous diagnosis of tissue taken from plaintiff, Charles Woodward, on November 27, 1965. As a result of the erroneous diagnosis, massive steriod treatments were administered which, it is alleged, caused Charles Woodward to develop a condition known as steroid myopathy which necessitated the amputation of both legs and caused cataracts. Charles died after the complaint was filed and an amended complaint was filed by Carol Woodward as administrator of the decedent’s estate and individually. It is alleged that the malpractice was first discovered in February 1976, when a sample from the preserved tissue taken in the 1965 biopsy was tested by another facility, which test demonstrated that the earlier diagnosis had been incorrect. The circuit court of Champaign County, in response to defendants’ motion, dismissed the amended complaint, holding that the actions were barred by section 21.1 of the Limitations Act. As stated earlier, the appellate court, with one judge dissenting, reversed and held section 21.1 unconstitutional.
The рlaintiffs contend that section 21.1 is unconstitutional for several reasons. First they say it violates the due process and equal protection clauses of both the Federal and State constitutions. The plaintiffs’ primary contention
I
It is generally agreed that in the early 1970’s what has been termed a medical malpractice insurance crisis existed in most jurisdictions in this country. The crisis resulted from the increasing reluctance of insurance companies to write medical mаlpractice insurance policies and the dramatic rise in premiums demanded by those companies which continued to issue policies. The difficulty in obtaining insurance at reasonable rates forced many health-care providers to curtail or cease to render their services. The legislative response to this crisis sought to reduce the cost of medical malpractice insurance and to insure its continued availability to the providers of health care. By October 1975, 39 States had commissioned studies of the medical malpractice problem and 22 States had revised, civil practice laws and rules in an attempt to remedy the problem. Redish, Legislative Response to the Medical Malpractice Insurance Crisis: Constitutional Implications, 55 Tex. L. Rev. 759, 761 n.14 (1977); see generally American Bar Association, Report of the Commission on Medical Professional Liability (1977); United States Department of Health, Education and Welfare Publication No. (OS) 73 — 88, Medical Mаlpractice: Report of the Secretary’s Commission on Medical Malpractice (1973); Illinois Insurance Laws Study Commission, Final Report to the Governor and 79th General Assembly 47-60 (1975) (medical malpractice).
Legislative efforts dealing with the malpractice crisis included a variety of changes in tort law principles. In
This court, in Wright v. Central Du Page Hospital Association (1976),
It appears that few State courts of final review have followed the holding of Wright, though many courts and writers have discussed the case. (Arneson v. Olson (N.D. 1978),
On the other hand, an overwhelming majority of courts have recognized the unique nature of medical malpractice problems and have upheld general medical malpractice statutes against numerous constitutional attacks. Many of the cases cited from other jurisdictions have either attempted to distinguish Wright, or have refused to follow it. (Woods v. Holy Cross Hospital (5th Cir. 1979),
The critics have read the holding in Wright too broadly. First, the case did not hold that all statutory provisions creating panels for the review of malpractice claims were unconstitutional. Second, the holding of Wright that the limitation on the amount of recovery is invalid is not inconsistent with the position taken by the American Bar Association Commission on Medical Professional Liability that no dollar limit on recoverable damages should be enacted which can operate to deny a plaintiff in a medical malpractice action full compensation for economic loss. (American Bar Association, Report of the Cоmmission on Medical Professional Liability 145-46 (1977).) The court noted in Wright that, under the act being considered, the very seriously injured, because of the limitation, might be unable to recover even all of his
II
We now turn to the consideration of the changes that were made in the limitation statutes as a part of the legislative response to the medical malpractice insurance crisis. Prior to that crisis few States had special limitation statutes for medical malpractice cases. Generally, the statutes of limitations applicable to personal injuries were followed, and occasionally, when the action was framed on an implied contract theory, a contract limitation period would be applied. A few States had statutes of limitations applicable to all types of malpractice and a few States had statutes of limitations specifically for medical malpractice. D. Hаrney, Medical Malpractice 247-70 (1973); 1 D. Louisell & H. Williams, Medical Malpractice sec. 13.01 et seq. (1977); Lillich, The Malpractice Statute of Limitations in New York and Other Jurisdictions, 47 Cornell L.Q. 339 (1962).
Increased use of the “discovery rule,” beginning in the late 1960’s, dramatically complicated the question of statutes of limitation, particularly in the field of medical malpractice. Under the discovery rule a cause of action accrued when a person learned of his injury or reasonably should have learned of it. With extensive application of the discovery rule to medical malpractice cases, statutes of limitations no longer constituted statutes of repose for a defendant in a malpractice action. By the application of the discovery rule a medical malpractice action was not deprived of its vitality simply by the passage of the statutory period. (As to the effect of the discovery rule on the statute of limitations in malpractice cаses, see generally, Letvin, In Search of the Spirit of Lipsey: Discovery of Malpractice and the Statute of Limitations, 1978 S.I.U. L.J. 345; Scott, For Whom The Time Tolls — Time of Discovery and the Statute of Limitation, 64 Ill. B.J. 326 (1976); Note, The Evolution of Illinois Tort Statutes
Before considering other States’ responses to the discovery-rule problem in medical malpractice, however, it is appropriate to consider the development of the Illinois statute of limitations as it relates to medical malpractice actions. In Illinois, prior to 1965, actions involving medical malpractice were governed by the general provisions of the Limitations Act. If the action was one for personal injury, the 2-year limitation period of section 14 of the Act (Ill. Rev. Stat. 1963, ch. 83, par. 15) was applied. In 1964 in Mosby v. Michael Reese Hospital (1964),
The discovery rule was thought to have played a significant role in the medical malpractice crisis. Because it created what came to be called the “long tail” of liability, the discovery rule reduced an insurance company’s ability to predict future liabilities. (See Comment, “Claims Made” Dilemma in Professional Liability Insurance, 22 U.C.L.A. L. Rev. 925 (1975).) Responding to these problems, various State and national commissions recommended placing an outside limit on the discovery rule in medical
This interest in the discovery rule prompted a substantial number of States to enact limitation statutes placing an outside limit on the applicability of the discovery rule in medical malpractice cases. The various statutes differ in both length of time within which suit must be filed and the types of medical personnel or entities affected by the statute. A number of statutes apply to all “health care providers,” comprehensively covering all medicаl malpractice actions. (Ala. Code 6 — 5—480 (1975) (4 Years); Ariz. Rev. Stat. sec. 12 — 564 (1978 Supp.) (3 years); Cal. Civ. Proc. Code sec. 340.5 (Deering 1979 Supp.) (3 years); Del. Code tit. 18 sec. 6856 (1978 Supp.) (3 years); Fla. Stat. Ann. sec. 95.11 (West 1979 Supp.) (7 years); Ga. Code Ann. secs. 3 — 1102, 3 — 1103 (1978 Supp.) (2 years); Ind. Code Ann. secs. 16 — 9.5—3—1, 16 — 9.5—3—2 (Burns Supp. 1978) (2 years); Kan. Civ. Proc. Stat. Ann. sec. 60 — 513 (Vernon 1976) (4 years); Md. Cts. & Jud. Proc. Code Ann. sec. 5 — 109 (1978 Supp.) (5 years); Nev. Rev. Stat. sec. 41A.097 (1977) (4 years); N.H. Rev. Stat. Ann. sec. 507 — C:4 (1977 Supp.) (8 years); N.M. Stat. Ann. sec. 41 — 5—13 (1978) (3 years); N.Y. Civ. Prac. Law sec. 214 — a (McKinney 1978-79 Supp.) (2 years, 6 months); Okla. Stat. Ann. tit. 76, sec. 18 (West 1978-79 Supp:) (only economic expenses allowed after 3 years); Or. Rev. Stat. sec. 12.110 (1977) (5 years); S.C. Code sec. 15 — 3—545 (1978 Supp.) (6 years); Tenn. Code Ann. sec. 23 — 3415 (1978 Supp.) (3 years); Tex. Rev. Civ. Stat. Ann. art. 4590i (Vernon 1978-79 Supp.) (2 years); Vt. Stat. Ann. tit. 12, sec. 521 (1978 Supp.) (7 years).) Other statutes attempt to enumerate specific groups of medical personnel or facilities; although not
The various limitation statutes of the other States relating to malpractice have been challenged on a variety of constitutional grounds including equal protection, due process and special legislation. All of the cases that our research found have sustained the validity of the statutes. Whether the statute is broad and covers all malpractice actions (Taylor v. Karrer (1976),
“The equal-protection clause does not prevent a State from adjusting its legislation to differences in situations. A statute effecting theclassifications of persons or objects is not unconstitutional merely because it affects one class and not another, provided that it affects all members of the same class alike; so long as the classification is not arbitrary and is founded upon some substantial difference in circumstances or conditions properly related to the classification.”
(We will more particularly discuss the propriety of the classifications in our statute below when we consider the plaintiffs’ arguments concerning special legislation.)
The plaintiffs also contend, in an unarticulated due process argument, that under section 21.1 it is possible that a person’s cause of action may be barred by the 4-year-maximum time limit before he learns of his injury. This problem is not directly involved in these cases. However, in Laughlin v. Forgrave (Mo. 1968),
“Any statute of limitations will eventually operate to bar a remedy and the time within which a claim should be asserted is a matter of public policy, the determination of which lies almost exclusively in the legislative domain, and the decision of the General Assembly in that regard will not be interfered with by the courts in the absence of palpable error in the exercise of the legislative judgment.” (Owen v. Wilson (1976),260 Ark. 21 , 24-25,537 S.W.2d 543 , 545.)
The court held that a claimant is not denied due process of law where a reasonable period of limitation has barred the claim without awareness by the claimant that he has been
“The authority of the General Assembly in enacting statutes of limitation is quite broad and limited only by a rule of reason. [Citations.] I cannot say that the 3 year limitation found in 18 Del. C. section 6856 is unreasonable.” Dunn v. Felt (Del. 1977),379 A.2d 1140 , 1141.
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. We have noted above that various reports, commissions, and authors recommended that the “long tаil” exposure to malpractice claims brought about by the discovery rule be curtailed by placing an outer time limit within which a malpractice action must be commenced. The 4-year limit of our present statute follows the recommendations of the Medical Injury Reparations Commission contained in its report to the Governor and the 79th General Assembly cited above. This recommendation was made following extensive hearings by the Commission. Our 4-year time limit is also within the general area of limits that had been set by other States. Some are shorter than ours, and some are longer. It has not been demonstrated that the legislative action in establishing the 4-year outer limit within which to file a complaint for medical malpractice is unreasonable. We thus find no due process violation.
III
We turn now to the main thrust of the plaintiffs’ argument. The appellate court in one of our cases, Woodward v. Burnham City Hospital, held that section 21.1 of the Limitations Act constituted special legislatiоn in violation of section 13 of article IV of the Illinois
“The General Assembly shall pass no special or local law when a general law is or can be made applicable. Whether a general law is or can be made applicable shall be a matter for judicial determination.”
The court held that the act conferred a special benefit upon physicians and hospitals while denying it to all other groups of health-care providers. This, the court held, was unfair, unjust and arbitrary and constituted special legislation in violation of section 13 of article IV of the Constitution of 1970.
The history of the special legislation prohibition of section 22 of article IV of the Constitution of 1870 is exhaustively set forth in G. Braden & R. Cohn, The Illinois Constitution: An Annotated and Comparative Analysis 203-26 (1969). Since this book was prepared for the 1970 Illinois Constitution Study Commission, its analysis is most helpful. Section 22 once contained a long list of specific prohibitions, thе original purposes of which were lost sight of long ago. The 1870 Constitution, however, contained no equal protection clause and the authors note at page 221 that the last enumerated prohibition, which concerned the granting of special privileges, came to be used by the courts as Illinois’ version of the fourteenth amendment’s equal protection clause. (See also, Schuman v. Chicago Transit Authority (1950),
In Bridgewater v. Hotz (1972),
Subsequent to Bridgewater, this court has continued to evaluate the validity of legislative classifications by the above tests. In аddition the court has applied these tests interchangeably, whether the court had under consideration an equal protection question (Fujimura v. Chicago Transit Authority (1977),
The plaintiffs in this action rely heavily upon several of our frequently discussed special legislation cases. (Grace v. Howlett (1972),
Plaintiffs in the Woodward case first contend that the limitations statute violates section 13 of article IV because it sets medical malpractice actions apart from other professional malpractice actions. This contention has no merit. When it enacted this statute, the legislature was directly addressing itself to a medical malpractice problem. Its action was supported by recommendations of numerous commissions and authors that the “long tail” of the discovery rule be curtailed by adding to the limitation period an outer time limit within which medical malpractice actions must be filed. Our legislature’s action is also supported by reference to many other jurisdictions. The legislatures of many other States have enacted similar limitations on medical malpractice actions. These statutes have been upheld uniformly by courts of review. These statutes and these cases have been set out above at length. Thus we must conclude that there was a reasonable attempt to remedy what the legislature perceived to be a medical malpractice insurance crisis. Whеther the course was wise or the best means of accomplishing the result desired is a matter for legislative determination.
A more difficult question concerning the legislative classification does exist, however: Is there a reasonable basis for differentiating between the class to whom the statute applies (physicians and hospitals) and other groups of providers of health care to whom this statute does not apply? We have noted earlier in this opinion that there is a wide variance in the statutes of the different States as to the health-care providers covered by their statute of limitations. Our statute is one of the more narrow. However, whether the statute covers all medical personnel or particular groups within the broader class, the courts in the cases cited above have upheld the classifications of the legislatures.
The crisis which confronted the legislatures in the mid-1970’s concerned the rapid increase in the premiums for medical malрractice insurance by some companies and the withdrawal of other insurance companies from the medical malpractice insurance field. The object of the legislation was to insure the continued availability of this type of insurance to those who were affected by the crisis and thus to insure the continuation of health services from these affected groups. Much empirical data has established that physicians and hospitals must be set apart from other members of the health-care class insofar as medical malpractice insurance is concerned. The National Association of Insurance Commissioners, an association of the insurance departments of the various States, in 1977 published “NAIC Malpractice Claims,” which reflects that claims against physicians and surgeons constituted 59% of all claims paid by count and 73% of the total amount of all claims that were paid. Claims against hospitals composed 36% of all claims paid by count and 25% by amount. Thus physicians and hospitals together accounted for 95% of the total number of medical malpractice claims and 98% of the dollar amount of those claims paid. In Report and Recommendation of the Medical Injury Insurance Reparations Commission to Governor Dan Walker and Members
“At the present time, the malpractice crisis has not reached these other health care providers to the same degree that it has reached hospitals and рhysicians, although the self-employed podiatrist seems to be approaching the problem.” Report at 29.
What is more, much constitutionally valid classification already exists in the medical field, based on the obvious difference between different types of medical professionals. The dissenting judge in the appellate court decision in Woodward v. Burnham City Hospital (1978),
We conclude that there was a reasonable basis for differentiating between physicians and hospitals and other
The appellate court in Woodward v. Burnham. City Hospital found Skinner v. Anderson (1967),
“ ‘That the statute operates uniformly upon all members of a class created as the beneficiaries of the act is not the sole test to be applied, but in order to avoid the constitutional inhibition *** it must also appear that there is 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.’ [Citation.] ” (38 Ill. 2d 455 , 461.)
We do not agree that Skinner v. Anderson is controlling. No doubt a general statute of limitations which was not limited in its applicability to only physicians and hospitals but applied to all personnel and institutions administering health care would have achieved whatever end this legislative response to the medical malpractice insurance crisis was seeking to achieve. In fact, a statute of limitations that would apply to all professional malpractice cases would have achieved the result. The sentence in section 13 of article IV of our constitution — Whether a general law is or can be made applicable shall be a matter for judicial determination — does not prohibit classification of persons and objects. As noted in Skinner v. Anderson, however, the classifications must be reasonably related to the legislative purpose and it must appear that there is a sound basis for regarding the class as distinct and separate for the purpose of the legislation. Our analysis of the statute in our earlier discussion of the classification issue compels us to hold that the statute is not defective when judged by the standards of Skinner v. Anderson.
Our conclusion that Skinner v. Anderson does not control is emphasized by a recent case. In Fujimura v.
IV
Having concluded that section 21.1 of the Limitations Act (Ill. Rev. Stat. 1977, ch. 83, par. 22.1) is not special legislation within thе proscription of section 13 of article IV of the Constitution of 1970, we turn to several remaining issues in the Anderson case. After the trial court had dismissed plaintiffs Andersons’ original complaint, an amended complaint was filed. It is argued that the amended complaint is based on the theory that the defendant had fraudulently concealed his negligent acts from the plaintiffs. Plaintiffs now contend that section 22 of the Limitations Act (Ill. Rev. Stat. 1975, ch. 83, par. 23) tolled the running of the time limitation of section 21.1. Section 22 provides:
“If a person liable to an action fraudulently conceals the cause of such action from the knowledge of the person entitled thereto, the action may be commenced at any time within five years after the person entitled to bring the same discovers that he has such cause of action, and not afterwards.”
Although the trial court held that the allegations of fraudulent concealment were sufficient, it nonetheless held that the cause of action was barred by section 21.1.
The complaint alleges that plaintiff Marilyn Anderson was a patient of the defendant from September 1972 through May 1973. The child was born on May 20, 1973. The complaint was filed June 23, 1977. It is alleged that
By discussing section 22 of the Limitations Act we do not hold that it is applicable in medical malpractice cases. That question is not before us. There are, however, uncertainties concerning the applicability of section 22 of the Limitations Act which we need not resolve in this opinion but to which we invite the attention of the General Assembly.
V
The Andersons raise one final issue. Their complaint alleges that Mrs. Anderson was under the care of the defendant from September 1972 through May 1973. There is no specific allegation as to when the rubella test was given, when the fetus became viable, or when any of the defendant’s negligent acts occurred. It is specifically alleged that the child was born May 20, 1973, and the plaintiffs have focused on that date as the date of injury. This appears to have been accepted by the defendant and
The complaint contains no allegation that the Andersons did not have a reasonable time under the 1976 amendment within which to bring their action. They did not request a hearing on this question in the trial court. There is no indication in the order of the court that it did not consider the reasonableness of the time. Accepting the Andersons’ argument that the limitation period ran. from the birth of the child, the shortened 4-year limitation period did not expire until May 20, 1977, 8 months after September 19, 1976, the effective date of the amendment; 9 months after its adoption on August 20, 1976; and 16 months after they alleged that they learned that they had a claim against the defendant. Under these facts we cannot say that the trial court erred in applying the shortened limitation period of the 1976 amendment to section 21.1.
For the reasons given above, the judgment of the appellate court is affirmed in cause No. 50880, Anderson v. Wagner. As to cause Nos. 50980 and 50981, Woodward
50880 — Judgment affirmed.
50980, 50981 — Appellate court reversed; circuit court affirmed.