*1 Illinois’ pension systems provision widow’s benefits such as those argues she the legislature has here provided. The reason for their absence is for in readily apparent, the Illinois Public Pension Employees Laws Commission re- jected proposals base a widow’s benefits on salaries of currently employed firemen because of the financial prob- lems involved in such funding The fact payments. that the court’s interpretation benefits provides unique the pen- Illinois, sion laws of coupled with internal inconsistencies in the Act produced by interpretation, me of persuades correctness the Board’s position that the benefits are fixed at the date of the fireman’s death.
Before I would attribute to our General Assembly of fiscal type has irresponsibility which led of New city York and our social to the security system brink of financial disaster, I require would more than convincing proof is here evident that the Board its erred in interpretation.
JUSTICE MORAN in this joins dissent.
(Nos. 56028, 56037 cons . LUELLA MOORE, PARK Appellee, v. JACKSON HOS
PITAL al., et ISAACS, Appellants. Ap — RICHARD v. MICHAEL REESE pellee, HOSPITAL & MEDI al., CAL CENTER et GROSSMAN Appellant.-TONI FENCHEL, v. MICHAEL REESE Appellee, HOSPI CENTER, TAL & MEDICAL Appellant.
Opinion February Rehearing filed 1983 . 8, 1983. April denied *3 Brook, Lord, Wildman, Harrold, & & Bissell and Allen Dixon, Rasor, Chicago (R. both of Dennis Harold L. Jacob- son, Griffin, Bartelt, Hugh C. Richard C. F. Ha- William ley, Dorr, and R Williams for counsel), appellants. Hardiman, Ltd.,
A. (Terrance J. J. Chicago Hardiman, A. J. Coughlin, Hardiman, and C. Eugene counsel), for appellee.
Lord, Brook, Jacobson, Bissell & L. (Harold of Chicago Dorr, Griffin, Williams P. counsel), ap- C. Hugh *4 pellant. Herman, Ltd., & Katz S.
Berger Alan D. and David Pochis, Joel Ltd., Fenchel, and H. of (Marvin all Chicago for Katz, counsel), appellees. D. of and Alan L. Herman L. Chicago of Bryant, (Harry Kinser & McLaughlin, counsel), for amicus Robbins, of Kenneth C. Kinser and curiae Illinois Association. Hospital of Chicago, M. State’s Daley, Attorney,
Richard & Assistant Mullin, Druth, Ltd., Special Segal Epton, E. Kluczynski, A. Thomas Attorneys (Saul Epton, State’s curiae for amicus counsel), County of Singer, and Jeffrey of Cook. of the court: opinion delivered the
JUSTICE CLARK of sec validity the These consolidated cases involve ch. Stat. Act Rev. (Ill. tion 21.1 of the Limitations 21.1, complaints on the date the Section 22.1). par. filed, were as follows: provided these cases or death damages injury action for for “No the of licensed under laws any hospital duly or physician tort, of con- State, or breach upon whether based tract, otherwise, of care shall be arising patient out or which the the date on brought than 2 after more diligence use of reasonable knew, through or the claimant known, writing notice should have or received damages are injury of the or death existence first, action, date occurs sought in the whichever such brought more than action be but no shall such event U the act or omission on which occurred the date action to have been cause alleged in such or occurrence injury such or death. is, bring action at person If the entitled occurred, age under the time the cause of action ill, or on crimi insane, mentally imprisoned or or years, begin of limitations does charges, period nal added.) (Emphasis removed.” run disability until 22.1. par. Ill. Rev. Stat. ch. respective three of the consolidated cases
In all cir- Cook County reversed the appellate panel upon of action based of the causes cuit court’s dismissals *5 the rule in Illinois that an amendment a shortening statute of limitations will not be retroactively so as to ter applied minate action, a cause of unless the claimant has a reason able amount of time after the amendment’s effective date (Moore Jackson Park in which to file his or her claim. Hospital 1009; Isaacs v. Michael 101 Ill. 3d App. Reese Hospital & Medical Center Ill. (1981), 101 App. cases, In all three of the application amendment the statute of limitations would bar instantaneously plaintiffs’ claims. granted We for petitions leave to ap in peal both the Moore in case and the Isaacs-Fenchel con solidated case and consolidated all three hearing opinion this court.
The relevant facts in the Moore case are as follows: 24,
On 1972, defendant Dr. May Steider Enrique per formed on surgery plaintiff, Moore, Luella at defendant Jackson Park Hospital. The that a plaintiff alleges needle left in her negligently body during On surgery. 17, 1978, March six the plaintiff’s surgery, plaintiff Moore had an X taken which showed the ray pres ence of a needle in her Plaintiff that she did body. alleges not discover presence needle until that date. Plaintiff filed her on complaint October 1978. The circuit dismissed action with on prejudice November Anderson v. 1980, based this court’s upon holding Wagner appeal dismissed sub nom. Woodward v. Burham City Hospital U.S. 11, 101 66 L. Ed. 2d S. Ct. 54.
The relevant facts in the case Isaacs are as follows: 16, 1978,
On May Richard Isaacs filed suit against defendants, Dr. K. Calvin and Reese Joseph Michael Hospi- tal and Medical Center. The complaint alleged.that plaintiff Isaacs had received treatments for inflamed tonsils X-ray in 1940, when he was old. The fur- complaint four ther alleged treatments, that as a result of these he devel- oped on his growths gland which had to be thyroid surgi- time he knew Plaintiff that the first alleged removed. cally 1977 when defendant Michael of his condition was of May Reese notified him of the possible dangers resulting Hospital corrective from these treatments. Isaacs underwent X-ray after the notice from surgery shortly hospital. Fenchel are similar to those in Isaacs
The facts in the case and are as follows: 29, 1980, Fenchel filed a malprac-
On January Michael Reese Hospital. tice action defendant Fenchel underwent X-ray From 1941 to 1943 plaintiff *6 that, as a result of alleges treatment for tonsillitis. Plaintiff treatments, gland these tumors on her developed thyroid The complaint alleged which had to removed. surgically be her condition that the did not have of knowledge 31,1978. until January 295,
In Anderson v. 79 Ill. 2d Wagner (1979), appeal dismissed sub nom. Woodward v. Burham City Hospital 807, 11, 54, 449 S. this U.S. 66 L. Ed. 2d 101 Ct. court decided the of section 21.1 of the constitutionality 1977, 83, Act Due (Ill. par. 22.1). Rev. Stat. ch. Limitations under our and both process equal protection arguments State and Federal constitutions were raised and addressed. 1970, 12, 16; IV, 13; sec. (Ill. I, 2, Const. art. secs. art. Const., U.S. amend. This court held section 21.1 XIV.) the did not violate of these of either Hlinois any provisions Thus, the it is Constitution or United States Constitution. us to the re reasoning holdings unnecessary repeat the of section 21.1 under these garding constitutionality provisions. issue to in this is whether appeal
The sole be decided retro- the 1976 amendment to section 21.1 can be applied to these causes plaintiffs’ so as bar actively instantaneously Plaintiffs as- of action of the statute. on effective date not Wagner sert in Anderson v. did that our prior holding that this is- address this agree plaintiffs issue. We with decision. sue decided in the Anderson was specifically of Plaintiffs assert that an amendment to a statute limi- the time an action tations which decreases which be may so as to instanta- filed should not be applied retroactively agree. their causes action. We neously existing bar stated, Ill. 78, v. 2d Hupp Gray (1978), to a Orlicki, an amendment limita “Also, as was held in an which action tion statute within shortening period actions filed will not as retroactively must be be applied time commenced, is a provided there yet to bring the amendment within which the effective 83, added.) 78, 73 Ill. 2d citing the action.” (Emphasis 354, Park Village Tinley v. Meegan 359. 342, this court
In Orlicki Ill. McCarthy application of the retroactive dealt with issue of limitation. Walter Orlicki was amendments statutes while a in an passenger on fatally injured July an intoxicated individual. allegedly automobile driven by Con Liquor was under brought by plaintiffs Suit At the 135). ch. time trol Act Rev. Stat. (Ill. par. Act killed, provided the Liquor the decedent was Control from the could within five brought that a suit 1949, the However, August 10, on Liquor date of death. Act, plaintiffs’ upon rights Control amended, requiring were predicated, defendants *7 within be two action hereunder shall commenced “every (Ill. Rev. the cause of action accrued.” next after years, The in filed 1949, 43, plaintiffs ch. Orlicki Stat. par. than 1951, which more two 27, suit on September death, years than two and more after the decedent’s the to Liquor effective of the amendment after the which the cre This held that legislature, Act. court Control Act, had the Liquor under the Control rights ated This reasoned that those rights. to repeal power the Act amending that power by had exercised legislature actions under bringing time limitations and imposing Thus, the Act. this court affirmed the of the cir- judgments cuit and courts allowing defendants’ motion appellate to dismiss.
The Orlicki case is from the in clearly distinguishable stant First, cases for two reasons. these actions plaintiffs’ are actions in negligence which sound tort were recog law; nized at common are not created rem they statutorily edies. in Second, case, had two plaintiffs Orlicki after the effective date of the amendment of the Liq Orlicki, uor in bring Control Act which to their action. stated, this court is our that the time judgment limita “[I]t tion amendment Control should ret Liquor [of Act] on the that the so in roactively applied, ground legislature tended, and that it is in character.” Ill. 2d procedural 342, 354.) The intention of the as to the legislature applica of the 1976 to 21.1 bility amendment section will be dis cussed later or ex opinion. “Changes procedure will not isting however, remedies be applied retrospectively, vested, where a will be de constitutionally protected right such v. Board prived by application.” (Maiter Chicago Education 82 Ill. (1980), 390-91, citing v. Hogan Bleeker 29 Ill. 2d the life 181.) “Remedies are rights, and are the constitution. equally protected by Depri vation of a to remedy a equivalent deprivation right vindicate, which it intended to unless another remedy exists or is substituted for that which is taken (Ho away.” gan 181, 187, Bleeker citing Board of Education v. 155 Ill. act Blodgett (1895), 441.) “Whether ing through through its or its a state judiciary Legislature, of all remedies for the may deprive person existing enforcement of a no right, power state has is, unless there him destroy, was, or afforded to some real it.” Trust opportunity protect (Brinkerhoff-Faris & Sav ings 673, 682, Co. v. Hill 74 L. Ed. U.S. S. Ct. the instant 454-55.) plaintiffs cases were not afforded their to exercise any opportunity *8 21.1; therefore hold that the stat-
rights under section we so as to the ute cannot be bar applied retroactively plain- its tiffs’ causes of action effective instantaneously upon date. rule discovery medical cases which malpractice of action accrues when plaintiff cause applied know of an and also injury
knows or should reasonably it wrongfully knows or should know that reasonably v. Weimer 146, 156; Ill. 2d (Witherell (1981), caused. Asbestos see also Nolan Johns-Manville 85 Ill. 2d Hospital v. Michael Reese 46 Ill. Lipsey 161, 169; in the Moore case cite West The defendants E. Lobianco & Son. Co. American Insurance Co. v. Sal that, “with 126, 131, for the proposition The defend out accrual there can be no cause of action.” mean that without accrual ants this statement to interpret Therefore, the defendants ar no cause of action “exists.” which shorten the time the rule statutes gue, regarding did brought, of action can be which a cause “pre-existing” claim in Anderson not Woodward’s apply plaintiff claim. Defendants as does not Moore’s plaintiff apply action “accrued” case had the cause of sert that neither to the statute to the enactment of the amendment prior nonexist their of action were limitations, and thus causes agree ent for of the statute. We do purposes to the time of accrual. cause of action is nonexistent prior cannot a cause of bring dictates that a Logic plaintiff his in he or should know of reasonably action until knows should know that and also knows or jury, reasonably another. How acts of wrongful was caused injury not have does ever, that does not mean that he is unaware. an cause of action of which existing the Wood- case was consolidated with Anderson the Anderson case in our court. In ward case for decision after the discovery least months eight had at plaintiffs of the 1976 the effective date of their and before injury, limitations, the statute of in which to file amendment of decision, court held only their claim. In the Anderson *9 that the in the case had Anderson plaintiffs of the amendment in time after the effective date 295, claim Ill. 2d and therefore 323), which to file their held their cause of was we that action barred. case,
In the was consolidated with Woodward which case, however, Anderson was plaintiff instantaneously the 1976 amendment to barred from his claim bringing by in at the time 21.1, section amendment was effect which his in- his claim was filed. Plaintiff Woodward discovered in not claim until De- of 1976. He did file his jury February 1976, nine 30, cember which was months after discov- of his and three months after the effective date ery injury event, In 1976 amendment. Woodward any his cause of bringing was barred from instantaneously action the act to have been the cause of his alleged because than had occurred more four before. We held injury Anderson, that claim was of plaintiff Woodward’s barred. course, did not involve the with which we are question here and is here. do confronted We not here applicable hold that the 1976 amendment would not in- apply any 19, after jury September sustained its effective date of 1976, no matter when it is discovered. which is the courts for its rea scrutinized period time the statute’s effective
sonableness is between date and the on which the cause of action preexisting (Balzer would be under the new statute as applied. barred 1071, 1072-73; v. Inland Co. 100 Ill. 3d (1981), App. Steel 78, 83; Engineer v. 73 Ill. 2d Arnold Hupp Gray 161, 166; ing, Inc. v. Industrial Com. 943, In the 944-45.) Jones Brill Ill. App. instant there no time whatsoever these plain cases date of the 1976 tiffs to file their actions after the effective limitations. Since the statute amendment to statute of effect their causes of limitations which was in when action shortened, arose was' were not they given any time after the effective date of the 1976 amendment which to claims, file their we hold that cannot the reason- able time required to allow retroactive period application the statute can found. we Anderson decided that the had at least plaintiffs
eight months the statute’s between effective date (Sept. time 1976) and the the shortened limitation four-year period expired (May 1977) in to file their claim. The Andersons also had 16 months they alleged had a they learned claim the defendant they which to bring their claim.
In the cases instant an unusual plaintiffs statutory have dilemma. their When causes action arose had either they time, an unlimited amount of or 10 in the case Rev. ch. foreign objects (Ill. 22.1), Stat. par. action, which to their causes of as as bring long they *10 their claims within brought two when knew years they or should have known of their reasonably injury.
The in the Moore case asserts that foreign-ob ject medical cases be treated malpractice differently should than all other medical cases for malpractice purposes the statute of limitations. The that plaintiff argues because cases were treated as cases foreign-object special prior amendment, the 1976 that the still intended legislature court, them to be treated after 1976. This differently Anderson, stated, dicta in “In section 21.1 again 1976 the amended special concerning foreign deleting provisions left in that all objects body the and providing malpractice actions against arising pa and out of physicians hospitals tient care than 2 the shall not be more after brought the claimant or should have existence knew known but in no event more than injury on which occurred last act or omission to have alleged Ill. added.) (79 been the of such injury.” (Emphasis cause An- 2d in Moore 307.) appellate interpreted no longer cases were derson to mean that foreign-object of limitations. of the statute cases for purposes exceptional agree appellate We with (101 1013.) Ill. App. of the 1976 amend in section 21.1 language court that to all medical malpractice ment unambiguously applies claims and against physicians hospitals. to section 21.1 of the 1976 amendment
The applicability However, it should be is at issue in these three cases. amended section noted that in 1975 the had also legislature 21.1, for a cutoff period foreign-object providing 10-year in all other medical cases, and a cutoff five-year period In the legislature provided cases. malpractice contained the 1975 amendment Public Act 79— to or affect actions 21.1, any to section not apply “[did ] Ill. (1975 at the time of its effective date.” Laws pending 1976, however, section 21.1 was 2894.) again when state which amended, legislature did not expressly The legislature actions the new amendment to. applied stated, Act takes effect 30 after it days “This amendatory Practice becomes a law and the made the Civil changes after this Act to civil actions filed apply Section by only Act effect.” Ill. Section 8 deals takes Laws with the Practice Act and is not relevant to the issue Civil at hand. “ retrospec ‘The whether a statute question operates one of intent. In legislative or tively, prospectively only, intent, the have evolved a strict such courts determining rule of retrospective operation, construction in the intended indulge presumption legislature it statutes, thereof, enacted operate or amendments ” ex rel. (People and not prospectively only, retroactively.’ *11 Manczak v. 556, 558-59.) Carpentier In indicate its in 1976, the Hlinois did not legislature clearly of the 1976 amendment. tention as to applicability Since there is no as to retroactive express language appli cation, must 21.1 a construe- prospective we section give
236 to the and rational solution tion. This is the only equitable in these cases face. dilemma the plaintiffs Indiana, similar York, California, legislation In New in to what has to section 21.1 has been enacted response In crisis. all seen as a national medical malpractice been limit a similar outside on States, three sets legislation action can be the time in which a medical malpractice that “in no event shall as our statute states brought, just after the date on action more than brought such alleged the act or omission or occurrence which occurred However, or death.” to have the cause of such injury been legislature prospec in these three States the provided The Indiana Statute states of the statute. tive application do Medical Malpractice that provisions Act] [the “[t]he occurred before act of which any malpractice apply 16— Code 1, date). (Ind. 1975” statute’s effective (the July v. Luros Adams (Ind. 1980), (See 9.5—1—7 (1982 Supp.).) 1199, 1975, legislature the New York 1201.) In N.E.2d the new a, expressly provided CPLR enacting 214— would “be malpractice applica section with medical dealing on or after act, occurring omission or failure ble to any (1975 effective N.Y. (the date). statute’s [July 1975]” Edinbergh v. Cooper Laws, 37; see ch. sec. California, 143, 146, 410 N.Y.S.2d Misc. 2d 340.5, an out Procedure, section specifies the Code of Civil in which injury after a plaintiff’s side limit on the period be commenced negligence” may an action for “professional the cause of discovery belated patient’s regardless Bleiberg Brown 186 Cal. However, action. shortening the statute 228, the explained Rptr. was enacted limitations period effect retroactive given not be could plaintiff’s operation, claim,” legislature but out plaintiff’s “so as to wipe as limitations so long could shorten period Cal. to sue. time in which a reasonable given shortening “A statute stated, 228, 233-34.) The court Rptr. *12 prospectively be interpreted of limitations may the statute retro- attend which would constitutional problems to avoid 228, 234. Rptr. 186 Cal. activity.” to the medi- response Illinois
So, legislature’s while the limit the time effectively crisis may cal malpractice occur after whose injuries (plaintiffs which future plaintiffs an can amendment) bring of the 1976 the effective date appli- statute a retroactive read into the action, will not we of action a cause extinguish instantaneously as to cation so an interpreta- Such to the amendment. that existed prior in the amend- intention of an expressed tion in the absence an not, in view of such will retroactively ment that it apply result, inferred. unusual and unfair time in in 1976 shorten the legislature Not did only but also brought, claims could be which these plaintiffs’ instantane- retroactively, the statute court, trial in applying on the effec- causes of action plaintiffs’ these ously barred limitations. to the statute of the amendment tive date of cases we hold in these the unusual circumstances Given automati- not have been claims should that these plaintiffs’ not have action should their causes of and cally barred with comply for failure to dismissed automatically been court Instead the the statute. provision cutoff four-year filed actions were these whether should have determined date of the effective time after within a reasonable 1976 amendment. stated, the judgments reasons for all the
Accordingly, causes of action these are affirmed and appellate consist- for proceedings the circuit court are remanded to ent with this opinion. remanded. and
Affirmed concurring: RYAN, specially CHIEF JUSTICE col- holding my with the do not disagree I Although the con- with some case, agree I do not in this leagues I, there- majority opinion reasoning clusions and fore, concur. specially section give must states “we opinion
The majority at 235-36.) Ill. 2d construction.” 21.1 a prospective causes of action holds that However, then majority for failure to dismissed automatically been should not have of that section. cutoff provision with the four-year comply de should have states that the court Instead, the opinion a reason actions were filed within these termined whether *13 amendment. of the 1976 the effective date able time after court, where remanded to the trial The causes are then is not made. The opinion must be such a determination referred just of the consistent, opinion the two parts and contradictory. to are appli- is to be given prospective
If the 1976 amendment to states, then it would apply first opinion cation as the prior be governed these cases at all and would they statute, as its name “A limitations. prospective statute of events, circumstances conduct, on implies, operates Sutherland, Statu- A. after its enactment.” which occur 41.01, 1973).) By ed. (4th sec. at Construction tory whether must determine the trial court holding that time after a reasonable were filed within causes of action is amendment, ap- the court of the 1976 the effective date cases; is, that it is applying these the amendment to plying it should I that be agree retroactively. the 1976 amendment court that the trial cases and to these retroactively applied a filed within the cases were whether should determine the 1976 amend- date of time after the effective ment. in favor a is that there is presumption
The rule general (Peo legislation. amendatory of prospective application Carpentier Manczak v. ple ex rel. 3 Ill. 2d McCarthy in Orlicki v. However, 559.) in limitation are procedural that statutes of this court held unless such, retroactively should be and, applied nature as at- opinion The majority a intent is apparent. contrary this in Orlieki tempts distinguish holding notes that Or- from the cases now before us. The majority lieki created whereas the statutorily remedy, involved negligence. cases are based on common law This present distinction with the in Orlieki nothing holding has do limitations are and are to procedural ap- statutes of be such a statute be plied retroactively. may applied Whether matter, to cut off a cause of action is another retroactively and will be discussed later. Orlieki, on
Prior to
the decisions in this State
this sub
However,
were not uniform.
settled the
ject
ques
Orlieki
tion
this State in
with the
law on
conformity
accepted
(See
Sutherland,
A.
Construction
subject.
Statutory
41.09,
Annot.,
sec.
at 281 (4th
1973);
ed.
“No action for or death shall brought be more than 2 after the on which the *** *** claimant knew the injury of the existence of but in no shall such more than 4 brought event action be years after the date on which occurred the act or omis (Ill. sion or occurrence ***.” ch. par. Rev. Stat. 22.1.)
This not of future actions but is a limita- language speaks tion on the of all bringing actions.
Another aid which Orlieki found statutory-construction in our case. stated compelling equally is Orlieki compelling that intent derived not from the legislative only bemay used, but also from the evil to be remedied: language
“The evil to be eliminated by the amendment was the prolonged liability for a period five of dram shop owners and operators, who rarely have any actual knowl edge of the upon events which their liability based. The statutory objective of eliminating this prolonged liability would be effectuated by giving the amendment a retroac (Orlicki v. McCarthy (1954), 4 Ill. 2d tive application.” 342, 353.)
The evil to be eliminated by amendment to the dram- in Orlicki act shop is strikingly similar to the evil sought to be eliminated by amendment we are now consider v. Anderson Wagner (1979), ing. 79 Ill. 2d 305-11, this court noted that the evil the legislature attempted eliminate by amendment to the limitation statute in volved the extended exposure liability by application rule to This discovery medical malpractice cases. stated Anderson: discovery
“The rule thought was played to have a sig (Anderson nificant role in the medical malpractice crisis.” v. Wagner 307.) Ill. 2d Here, as in Orlicki, the statutory objective of eliminating this prolonged would be effectuated liability by giving amendment retroactive application.
Although the 1976 amendment should be retroactively I applied, agree with the it majority cannot be applied in such a manner as to one of a vested deprive right. The injured must have a party time after the effec tive date of the amendment within which to bring an action. (Hupp v. Gray 73 Ill. Under the dis rule as covery applied State, a “cause of action ac crues when the plaintiff knows or should know reasonably of an and also knows or injury should know reasonably injury caused acts an wrongful (Nolan Johns-Manville Asbestos other.” 161, 169.) The amendment to the Limitations Act cannot off applied to cut on the effective date of retroactively the amendment the causes of action that have accrued
241 The injured of the enactment. to the effective prior the effective accrued before cause of action whose person time, given must be date of the amendment complaint. file his which to date, within the effective to the as was addressed this issue Wagner Anderson Woodwards, were who However, Anderson. case, alleged Anderson in the consolidated also plaintiffs The 1976. in February the malpractice learned of they and the of 1976 in September effective amendment became The question 1976. suit on December filed Woodwards file in which to of time of this period of the reasonableness not hold The case did on in Anderson. not passed suit was from fil- barred instantaneously were that the Woodwards in the amendment, majority stated as suit ing by opinion. ef- that accrued before
I the causes of action view within the falling as the 1976 amendment fective date of “vested involving referred to as of cases usually category the amendment. cannot be terminated rights,” a reason- must be given these vested rights The owner of within of the amendment time after the effective date able not action that did I the causes of which to file suit. view of the amendment dif- the effective date accrue until after that these causes states majority opinion ferently. had the nec- the injured person action existed even before causes as accrued vitality them knowledge give essary existence, be, in that state That well but may of action. The general in nature and not vested. inchoate were they it will rights, affects inchoate a statute rule is that where intent clearly if the legislative retroactively be construed 2 A. Suth- intended. is that retroactive operation indicates ed. 41.04, (4th at sec. erland, Construction Statutory 1973). in- are called of action
However, these causes whether a limita- of whether determinative choate or vested so construed should be shortening period tion statute *16 as to automatically terminate the causes of action. The question of the of the a validity application of statute rests on subtle judgments concerning the fairness or unfairness of the new applying rule to statutory affect interests which accrued out of events which when a different transpired prior rule of law was in force. One fundamental consider- ation of fairness is that settled expectations ar- honestly rived at with to respect substantial interests not to ought be defeated. A. Sutherland, Construction sec. Statutory 41.05, at (4th 260-61 ed. 1973).) The determination of whether of the application statute in- unreasonably fringes upon rights those to whom it involves applies a balancing discrimination between reasons for and application statute to this class of indi- viduals. 2 Sutherland, A. Statutory Construction sec. 41.05, at 259 ed. (4th 1973).
Although rights of an injured person before obtain- ing knowledge action, his cause of above, as noted are inchoate, I do not believe that these rights should be termi- nated aby statutory amendment on its effective date. The rule of reasonableness should be these inchoate applied rights similar to its to accrued or application vested rights. This rule of can reasonableness within the applied framework of and accordance with the intent legislative manifested in the 1976 amendment.
The amendment under consideration actually contains two limitation a limitation on the time periods: within which the suit must be filed (two and a limitation years), on the time within which the injured must person discover that a cause of action (four exists The 1976 amend- years). ment we are an considering preceded amendment in 1975. Prior to the amendment, there was no out- side limitation on All that was was that discovery. required the suit had to be started within two after years discovery of the cause of action. The 1975 amendment an out- placed side limitation of five within which the cause of started. action had to be discovered and suit limitation to four years. amendment lowered that outside or causes of rights In order these inchoate to protect happened if arose action, they the occurrence out which of the 1976 the effective date more than four before I that the amendment, injured person would hold only his of action ac- should time after cause have crued, action, he had a cause of is, after he discovered file I also hold which to his but would complaint, within time have a reasonable person would injured of the amendment within which dis- effective date cover that cause action existed. as ex- Assembly
It is the intent of the General clearly time within which the that the in this amendment pressed *17 remain cannot may open cause of action be discovered indicates clearly of the amendment language ended. The to all apply that the stated in the amendment limitations The amendment spe- actions for medical malpractice. filed filed shall an action be more states that in no case cifically of than four after the date the occurrence. years rights injured persons balancing to the extended liabil- need to exposure correct evil rule, concluded legislature created ity discovery an injured person that it require was reasonable action commence his medical malpractice discover and with this the occurrence. Consistent within four after years to the injured that a prior intent is a requirement person his must discover effective of the 1976 amendment four af- years within cause of and file his complaint action A who person ter the date of the amendment. effective one practitioner day a medical injured by was negligently his loses of the 1976 amendment effective date if his his suit injuries recovery to file a suit for right occurrence. after the has not filed within four been injured similarly that a person It is require the 1976 amendment date of one effective day before discover his cause of action and file his suit within four after the effective date of the amendment. It is true that this application amendment may right terminate to file suit before an individual becomes aware of his injury. How ever, this is also true those who are after the ef injured fective date of the amendment. We noted Anderson that such a of a termination cause of action has held not to been constitute a due violation. v. process Wagner Anderson 311-12.
For the I stated, reasons herein concur in the specially holding the majority opinion. MORAN, JJ.,
UNDERWOOD and in this con- join special currence.
(No. 56393 .
(No. 56394 . UNIT SCHOOL DISTRICT WAUKEGAN COMMUNITY al., NO. v. THE 60 et Appellees Cross-Appellants, al., CITY OF et and Cross- Appellants WAUKEGAN BELL TELEPHONE COM Appellees. — ILLINOIS PANY, THE PARK VILLAGE OF OAK Appellant, al., et Appellees. Rehearing
Opinion February 1983. filed 8, 1983. April denied