Tosado v. Miller

from tinguishable section 143a. The mandatory arbitra- provision at issue truly there was neutral in applica- tion and did not arbitrarily and discriminately favor insurance companies to the insureds, detriment of their as does the provision arbitration in section 143a.

For reasons, I foregoing would strike that portion of section 143a requiring arbitration as violative of due process. portion This of section 143a is severable from the remainder of the statute.

JUSTICES HEIPLE and HARRISON dis- join sent.

(No. 84712. TOSADO, LINNETTE CONCEPCION v. A. Appellant, al., MILLER et PHIPPS, Appellees. Appel- —GAIL lant, CENTER, LTD., v. LINCOLN MEDICAL et al., Appellees.

Opinion Rehearing October denied filed 1999. November 1999. FREEMAN, C.J., concurring. specially HEIPLE, J., concurring. specially also HARRISON,J., dissenting. dissenting. J., RATHJE, J.,

McMORROW, joined by also Linnette Karr, appellant for Chicago, Robert W. Tosado. Concepcion & As- Hertzberg A. Lucaccioni, of William

Kent M. (David sociates, of Chicago A. Novoselsky and Linda A. Bryceland, counsel), for appellant Gail Phipps. (Pa- Devine,

Richard A. State’s Attorney, of Chicago tricia M. Shymanski and Fischer, counsel), Peter D. appellees.

Francis Timons, T. of Chicago, for amicus curiae Il- linois Lawyers Trial Association.

JUSTICE MILLER delivered the judgment court:

Plaintiffs brought separate the circuit court of Cook County seeking recover damages defendants for alleged medical malpractice. Defendants were local public entities or their employees. In each case, defendants filed motions to motions, dismiss. In the defendants alleged limitation period found in section 8—101 of the Local Governmental (Tort Governmental Employees Act Im Act) (745 (West 1996)) munity et seq. ILCS 10/8 —101 plaintiffs’ barred actions. The circuit court denied defendants’ motions to dismiss. The appellate court consolidated these cases on appeal and reversed. 293 Ill. App. 3d 544. We plaintiffs’ joint allowed petition for leave 315(a). 177 Ill. 2d appeal. addition, R. granted we Trial Lawyers Illinois Association leave to submit a brief as amicus curiae. 155 Ill. 2d 345. We now affirm R. the judgment of the court. appellate

BACKGROUND Cause No. 92—L—4475 Plaintiff, Tosado, Linnette Concepcion commenced her 10, 1992, action on April by filing a in the complaint circuit court of Cook County. The complaint alleged that Miller, Drs. Cohen, Kopolovic, Barnett, Padilla, and all County Cook Hospital employees, negligent were in fail- ing to assess the likelihood scarring connection with defen- alleged further The complaint surgery. her risks her of the to warn failing negligent dants were and that surgery associated with consequences uninformed. therefore was surgery consent to her sec- pursuant dismiss a motion to filed Defendants (735 ILCS Procedure of Civil of the Code tion 2—619 1992)). (West motion, defendants In their 5/2 —619 com- her fail because claim must that Tosado’s argued date of after the year than one filed more was plaint relied action. Defendants of a cause of discovery injury or in section contained period limitation one-year on the hearing, a Following Immunity Act. of the Tort 8—101 believing motion denied defendants’ judge the trial trial judge, The limitation applied. statute of two-year a of law a question the case involved however, found that for difference of ground there is a substantial as to which court, substance, certified to the appellate opinion following question: entity case In a medical and/or in the one-year does the employees, its period in two-year limitation Immunity Act or the (735 ILCS Procedure of the Code of Civil section 13— 212(a) (West 1992)) apply? 5/13 — in the leave to appeal petition Defendants filed appellate granted. and leave was court appellate 94—L— cause with cause No. court consolidated this of defen courts’ denial the circuit 15720 and reversed doing 3d 544. In 293 Ill. App. to dismiss. dants’ motions limita held that “the so, it Immunity Act controls the Tort tions this construction and because a more statute specific the Tort plain language comports with joint plaintiffs’ 3d at 546. We allowed Act.” 293 Ill. 315(a). Ill. 2d R. appeal. for leave petition 94—L—15720 Cause No. L—15720, Phipps, Gail plaintiff,

In cause No. 94— commenced her action on December filing in complaint the circuit court of Cook County. Phipps subsequently filed a nine-count amended complaint. Ac- cording to the in allegations the amended complaint, defendants, Cook County Hospital, Dr. Naidoo, K. an em- ployee of the hospital, Lincoln Medical Center, Ltd., a professional medical corporation, were negligent in providing medical Phipps care her during pregnancy.

Defendants filed a motion to dismiss counts IV through IX of the amended complaint, those counts nam- ing Cook County Hospital employee, its Dr. K. Naidoo, defendants, as pursuant to section 8—101 of the (745 (West Tort Immunity Act ILCS et seq. 10/8 —101 1996)). Counts I through III were filed private corporation and are not at issue in this appeal. motion, defendants argued that Phipps’ action was untimely under limitation period found in section 8—101 of the Tort Immunity Act. re- Phipps sponded by asserting that section of the Code of Civil Procedure set forth the applicable limitation pe- riod.

Following a hearing, the trial judge denied defen- dants’ motion. The trial judge, however, found that order involved a question of law about which there are substantial grounds for a difference of an opinion. trial certified judge to the appellate court substantially the same question as did the judge cause No. 92—L— 4475.

Defendants filed a for petition leave to appeal appellate court. The appellate granted defendants’ petition. above, As noted the appellate court consolidated these causes for appeal and reversed the circuit courts’ denial of defendants’ motions. 293 Ill. 544. We allowed plaintiffs’ joint petition leave to appeal. 315(a). Ill. 2d R.

DISCUSSION The issue presented this case is whether the two- the Code in section limitation year 13 — limitation or the Procedure of Civil to medi- Act Immunity applies of the 8—101 section enti- governmental against actions cal malpractice their employees. ties and/or in pertinent provides the Code 13 —212 of

Section part: (a) in Section Except provided as hospital,

“Physician or injury or damages for Act, this no action 13—215 of dentist, nurse or registered any physician, against death State, whether the laws of this duly licensed under hospital otherwise, contract, aris- tort, or upon or breach based years brought more than be ing patient care shall out knew, through the or the claimant the date on which after *** known, of the have diligence should use of reasonable (West 1992). ILCS injury death ***.” 735 or 5/13 — Immunity Act provides: of the Tort Section 8—101 any court may action be commenced “No civil any injury unless any employees for entity or of its a local from the date that year one it is commenced within For of action accrued. or the cause injury was received any includes Article, term ‘civil action’ of this purposes statutes or action, the common law or upon based whether (West ILCS State.” 745 of this Constitution 10/8 —101 1996). is and plain the statutes language We believe to use aids such, there is no occasion As unambiguous. meaning and the plain of either statute the construction Municipal Illinois Fosco v. prevail. should (1991). However, Fund, Retirement 3d 842 App. 213 Ill. 212(a) of the Code or section either section 13 — plaintiffs’ could apply Act 8—101 of the Tort other, decide which we must in the absence of the In effect. given must be conflicting provisions of these of the two statutes which so, we must determine doing hand. Zimmer the case at more specifically Willowbrook, 437, 442 Village of 242 Ill. 3d App. 212(a), containing argue Plaintiffs 13 — the two-year period, the more specific stat- ute and accordingly should be applied to case. They assert 13— 212 more narrowly defines defendants, dentists, specifying physicians, registered hospitals, nurses rather setting than forth the broader category of all governmental entities and their employees. addition, In plaintiffs argue that section 13— 212 more narrowly plaintiffs defines nature of the claim, specifying that action arise must out of patient care, as opposed to the broader language of sec- 8—101 that applies injury. contentions, these support plaintiffs rely upon Magnus, Lanxon v. decisions, two (3d Marrese, and Cleaver v. 1998), Dist. (5th Ill. 1993), App. 778 Dist. and one federal district (N.D. Sheahan, decision, Murry v. court 991 F. Supp. 1998), Ill. of all which the question presented considered here. (5th Marrese, Cleaver v.

In 3d 778 App. Dist. 1993), Cleaver, Donna filed a plaintiff, medical malprac tice action Dr. against Anthony R. Marrese and the Wood River Township The trial Hospital. granted court the hospital’s summary motion for judgment plaintiff because filed her complaint years, within two more but than one year after the date on the injury which was received or the cause of action accrued. On the appeal, appellate reversed, court the limitation finding two-year pe 212(a) riod contained of Code the of Civil 13— Procedure applied. appellate that, The court stated filed, “[Biased on the type plaintiff claim has an anal ysis limitations, conflicting and the statutory construction, rules of we conclude that section applies 13— 212 more instant specifically case.” Cleaver, Ill. 783. App. 3d at (3d Magnus, Lanxon v. 3d 377 Dist. 1998), a case decided in the after the appellate ap- case, plaintiffs in the present decision court’s pellate Lanxon, Amelia plaintiff Meusel and Jeffery Susan Community- cases, brought in separate (CGH), municipal Center Medical Hospital General for medical other defendants and various corporation, complaints filed their cases, plaintiffs In both malpractice. the ac- after years, two less than one but year, more than of actions. their causes crual of arguing judgment summary for moved CGH one- by the cases, barred claims, in were both plaintiffs’ 8—101. forth set period limitation year timely filed were suits argued Plaintiffs two-year was period limitation applicable 212(a). judge trial same in section found 13— case, the two- finding in each summary judgment denied 212(a) applicable. in section limitation year issues identity presented, of the Because of cases and Lanxon the Meusel court consolidated 212(a) Code, and held that section on appeal more was two-year period, containing The court cases. plaintiffs’ specifically applicable explained: analysis of consider the more traditional applying

“In injuries nature the claims and ing the find section 13— plaintiffs, instant we sustained 212(a) Section to their cases. specifically applicable injury, generally to civil actions applies 8—101 exclusively specifically and while section 13— Accord injuries arising patient care. out to actions for specific statute and is the more ingly, section 13— Lanxon, 296 Ill. original.) prevail.” (Emphasis should App. 3d at 381. Sheahan, Supp. 991 F.

Likewise, Murry in v. (N.D. was asked 1998), district court a federal 13—212 or sec section the of whether question consider mal law medical state pendent tion 8—101 applied County and its Cook brought against claims practice judge district case, the then-presiding In that agents. dismiss, denied originally defendant’s motion to holding that the statute two-year of limitations court applied. The was then asked to its light reconsider in of the ruling ap- pellate reconsideration, court’s decision in this case. On magistrate judge again held that the limita- two-year period judge The applied. explained: “Here, Physician Hospital’s the or Illinois section the *** provides

Code of Civil Procedure a statute of limita- period specific tions tailored to cause of action and specific potential directed at a class defendants: ‘actions damages injury for death against any physician, or dentist, registered hospital.’ nurse or 735 ILCS 5/13 —212. *** contrast, Immunity provides In the Tort Act a statute period range of limitations for a broad of civil and actions potential liabilities: a local entity.’ ‘civil ILCS 10/8 —101.”

We in agree the reached the with result the case before us and with result disagree Cleaver, Lanxon reached in and Murry. We believe that the focus of here inquiry under issue be on nature of on should the defendants rather than believe, therefore, cause of action. We contained Immunity 8—101 of the Tort Act is specifically ap- plicable to these defendants. Immunity when Tort legislature, enacting the

Act, stated that its was “to specifically purpose protect local public liability entities and from public employees arising government.” from the operation of ILCS 10/ 101.1(a) (West 1994). In enacting Immunity the Tort on a legislature particular Act focused category governmental defendants potential granted than non- employees greater protection entities governmental employees. entities and their recognized legislative

This court intent behind Saragusa City Chicago, Act in Saragusa, 63 Ill. 2d 288 court stated of the limitation contained purpose into the claim early investigation encourage 8—101 “is to a time when the government the local against asserted available, and condi are fresh, is still witnesses matter Ill. 2d Saragusa, 63 materially changed.” have not tions settlement investigation permits prompt an at 293. Such entities governmental and allows of meritorious claims Rey liabilities. of budgets light potential their plan (1971). The Tuscola, 48 Ill. v. City nolds of a local “[b]ecause stated that Saragusa further the number of entity must anticipate government brought far exceed those it will against claims made individual, abridged of an against private provision must be asserted is time within which a claim 2d at 293. Saragusa, reasonable.” Immunity Act, 8—101 of enacting section believe, specific legislature protect intended to we defendants, entities and their governmental local class of against Thus, in medical employees. the focus employees local entities or their governmental of ac- rather than the cause be on the defendants should injuries plaintiffs. or the sustained of defendants at issue in By focusing category on the case, clear 8—101 of the Tort Im- it is that section 13—212 of section munity specific Act is than specifically ap- Procedure. Section 8—101 Code Civil local entities and the em- plies to defendants which are are a more cate- ployees specific of those entities which group of defendant within the broader gory dentist, hospital nurse or described physician, registered 212(a). 8—101 of the Tort Because section Immunity specific is the more statute when consider- Act entities governmental causes of action ing against one-year believe employees, we Act ap- 8—101 of the Tort provision against to actions those defendants. plies significant policy reasons argue Plaintiffs further should preclude application limitation pe- riod to actions local entities their employ- and/or They ees. contend that a claim medical malpractice often not immediately to the apparent injured party; medical malpractice claims involve complex issues requir- ing substantial prefiling investigation; and that the fact that a hospital is a municipal hospital may readily not be apparent to someone who has injured been in such a fa- cility. They, therefore, conclude that the status of the fa- may be cility not an injured obvious to until it is party too late and that public policy should the two-year favor limitation period. Because these compete concerns with of legislative purposes the limitation provision Act we believe that are they questions left appropriately to the legislature.

We find the limitation in 8— 101 of Tort Immunity Act more specifically ap- plies action, this case. It specifically states that no civil which any includes action whether based upon the com- mon or or state, law Constitution this may be commenced in any entity a local or any of its employees injury unless it is com- within year menced one from the date the injury was received or the cause of action accrued. See 745 ILCS (West 1996). et seq. 10/8 —101 if finally argue Plaintiffs that we determine the one- action, year period applies to their causes of then our decision should be applied prospectively only. They unjust believe that it would be apply retroactively any holding that section the Tort finding 8—101 of Im- munity Act plaintiffs’ controls actions in this case. We disagree. when an

Generally, a court issues the deci opinion, retroactively sion is both and presumed apply prospec tively. Deichmueller Construction Co. v. Industrial (1992). Comm’n, However, 151 Ill. 2d states expressly a court when is overcome presumption Aleck only. applied prospectively will its decision be 82, 86 Park, Ill. 2d Lake Round Village son v. 92-94, three 2d we considered Aleckson, 176 Ill. at ap of prospective determining question factors (1) are: factors to be considered The three plication. nonretroactively to be applied the decision whether law, by overruling either principle a new established may relied litigants have on which past clear precedent resolu impression an of first whose deciding or issue by (2) whether, clearly foreshadowed; given not tion was rule, will be history operation of the new its purpose (3) by prospective application; or promoted retarded pro results would be inequitable substantial whether retroactively. Aleck applied if the former decision is duced factors, we these son, 92-94. Applying today’s holding application believe that retroactive appropriate. does not establish a

Our decision the cases at bar that it was foreshad law, for we believe principle new statute, which, have we language owed initial consider determined, this result. This requires ap requirement” prospective is a “threshold ation (Aleckson, 88), Ill. 2d at of a new 176 plication decision in deny application prospective and therefore we must here. the circumstances shown

CONCLUSION stated, judgment For the reasons affirmed. court is

Judgment affirmed. FREEMAN, concurring; specially CHIEF JUSTICE it holds the extent that I to agree plurality with in contained sec- statute of limitation one-year (745 Immunity Act ILCS 8—101 of the Tort 10/8— (West 1996)) applies to the causes of action at issue in believe, this case. I also like the plurality, policy presented considerations appeal ques this are are tions that left appropriately to our General As sembly. 188 Nevertheless, Ill. 2d at 196. agree I with Heiple Justice that plaintiffs “make a plausible case that [in the focus should be of appeal] on the of action, cause not on the nature of the defendants.” J., See 188 Ill. at 2d 199 (Heiple, specially concurring). I Therefore, join in Justice Heiple’s special concurrence to the extent that “this is one of those instances where legislature ‘the intended to the general make act control ” ling’ and that section 8—101 Act was designed broadly to claim apply possible against governmental entity and its employees. J., 188 Ill. (Heiple, 2d specially concurring), quot ing Stone Department Employment Board Security Review, However, I do not join in, condone, nor do I Justice characteriza Heiple’s tion of the dissent submitted in this matter Justice McMorrow. HEIPLE,

JUSTICE also specially concurring: I agree holding with the plurality’s statute of limitations section 8—101 of the Tort Im- (745 (West munity 1996)), Act ILCS not the 10/8 —101 two-year statute limitations (735 (West the Code of Civil Procedure ILCS 5/13 — 1996)), medical lo- cal I governmental employees. entities and their write however, I believe the anal- separately, plurality’s ysis is an oversimplification ultimately unper- both suasive. familiar rule plurality employs statutory “ are ‘[w]here

construction which states that there two designed statutory general one of which is provisions, generally, particular to cases and the other apply

199 particular provision only subject, one relates to ” Construction Corrigan v. E.W. Hernon prevail.’ must (1992), 190, City Bowes Co., quoting Ill. 2d 195 on “the Focusing 3 Ill. 2d Chicago, of the type rather than on nature defendants that section action,” concludes plurality cause of added.) (Emphasis statute. specific is the 8—101 is an oversim analysis The plurality’s 188 Ill. 2d at 194. specific 8—101 is both more because plification of limitations sec than the statute general and more 212(a). it in the sense that specific It is more tion 13— defendants, local entities to a narrow class of applies hand, general it is more their On other employees. to civil ac it than section 13— actions. Plaintiffs tion, just to medical not on the the focus should be plausible make a case of the action, on the nature of the cause of not type view, plurality’s From point defendants. plaintiffs’ on the nature of the defendants both exclusive focus arbitrary. is completely analysis ultimately unpersuasive is plurality’s 8—101 more because, gen to extent that section is in 212(a), those this is one of eral than section 13— the gen intended to make legislature stances where “the Employment Stone v. controlling.” Department eral act (1992), 2B Board, quoting 151 Ill. 2d Security 51.05, § Statutory Construction Sutherland on Singer, N. (5th 1992). out, the points ed. As the plurality at 174 in section of limitations statute purpose and settle encourage early investigation 8—101 can entities governmental of meritorious claims so ment liabilities. 188 potential budgets light plan then, 8—101 was very 195. its nature By claim broadly any possible designed apply This entity employees. and its local governmental over other necessarily controls comprehensive protection limitations. Nothing legislature suggests intended to abandon this scheme with respect medical malpractice actions.

Justice argument McMorrow’s in her dissent that one-year statute of in limitations section 8—101 of the Tort Immunity Act does not apply plaintiffs medical malpractice action because it does not explicitly say that it trumps two-year statute limitations in section 212(a) of the Code of Civil Procedure is inane. The very analyzes reason this court which statute is more because, specific arguably, is either applies. statute There would be no reason to resort to this tool of statutory construction in if place the first one statute explicitly it provides takes precedence over other statute. Contrary dissent, to Justice McMorrow’s the fact legislature an created across-the-board rule limiting the time which to file “any against action” public entity year or its is employees powerful to one evidence the legislature intended the more general statute to be controlling. HARRISON,

JUSTICE dissenting: v. Contrary I Lanxon plurality, believe that (3rd Magnus, Cleaver v. 296 Ill. 3d 377 App. 1998), Dist. (5th Marrese, and Mur 1993), 3d 778 Dist. Sheahan, (N.D. ray 1998), 991 F. Supp. were correctly Accordingly, plaintiffs’ decided. medical mal practice should be limi governed two-year actions tations medical actions set forth period malpractice generic the Code of Civil Procedure rather than the limitations set forth in the Tort Im period munity Act. plaintiffs complaints Because filed their within the applicable two-year period, limitations denied, defendants’ motions to dismiss were properly and the re judgment court should be versed. McMORROW, dissenting: also

JUSTICE two-year limita- is appeal At issue in this whether Pro- of Civil the Code in section 1992)) (West (735 or one- ILCS cedure 5/13 — Local 8—101 of the year Tort Im- Employees and Governmental Governmental 1996) (Tort (745 (West Im- ILCS munity Act 10/8 —101 Act)) to medical munity entities governmental brought and/or the one-year The holds that employees. plurality opinion 8—101 of the Tort in section provided limitation period specifically Act applicable. Im- that section 8—101 of the Tort conclusion plurality’s an specific represents Act is the more statute munity from our departure unwarranted and unprecedented Therefore, I respectfully jurisprudence. well-established dissent. two

Based of the upon plain language to issue, either could arguably provision apply plaintiffs’ Immunity Act is ap- Section 8—101 of the Tort claims. governmental to against “civil actions” plicable whereas section employees, entities and/or of Procedure to “actions of the Code Civil damages injury physician, for for or death However, the two dentist, or hospital.” nurse registered a permits statutes conflict because limitation, two-year filing whereas period Therefore, as a limitation period. 8—101 allows correctly observes, linchpin determina- plurality conflicting statu- in this matter is which of these two tion hinges upon control. The decision tory should provisions applicable more specifically which of the two is provisions at bar. to the cause “ ‘[wjhere are there rule long-established It is general is statutory one which provisions, two is par- and the other designed apply generally, to cases 202 ticular only and relates to subject, one the particular pro ” Hernon v. E.W. Corrigan Construc prevail.’

vision must Co., quoting Bowes v. 190, (1992), 149 Ill. 2d 195 City Chicago, 2d 175, 3 Ill. This is true “especially where the particular provision is later in time added.) Bowes, of enactment.” (Emphasis 205; Ill. 2d at Jahn Troy Fire District, Protection see also 163 Ill. 2d (1994) (when 275, 282 choosing between two statutes conflict, direct “the recent more enactment generally will intent”). prevail as the later expression legislative Traditionally, in determining which of two statutes more specifically applicable matter, particular most courts have looked primarily to the nature plaintiffs cause of action and the injury sustained in Hernon v. Corrigan by E.W. plaintiff. example, For Co., Construction this court held that the limitations pe (Ill. riod for acts or omissions relating construction (b)) 1989, Rev. Stat. 110, ch. pars. 214(a), is more 13 — specific than the limitations for personal injury (Ill. 202) Rev. 1989, 110, Stat. ch. par. 13 — only former concerns construction-related Hernon, in Berto activities. Similarly, 2d at 196. lis v. Community Unit School District No. 283 Ill. App. (1996), the appellate court determined the limitations personal injury actions brought (735 minority minors that during accrued ILCS 5/13— (West 1994)) claim governed plaintiffs because it specifically plaintiff addressed the and the nature in Zim plaintiffs Also, than injury section 8—101. mer Willowbrook, v. Village 242 437, 3d 442 App. (1993), the court held that for limitations ac period body tions brought against relating to acts or politic (735 214(a) (West omissions in construction ILCS 5/13 — 1994)) is more than section 8—101 of the specific statutory Act because the body action politic restricted claims from construction arising Corp., Barry-Harlem also, e.g., Walsh activities. See (1995) 13— section 418, (holding 3d Ill. App. in the case at at issue of limitation 212(a), the statute the limita than applicable more bar, specifically to be Fraud and contained in the Consumer tions (815 et seq. ILCS Practices Act Business Deceptive 505/1 212(a) (West 1992)) only to applies because section 13— actions); v. Chasnoff, Desai medical (1986) more 163, 167 section (holding 13— in the than the limitations applicable specifically (810 et seq. ILCS Commercial Code Uniform 5/1 —101 (West 1992)) only to a partic the former applies all breaches of latter applies of claim and the ular sale). for contracts analysis to traditional, well-established

Applying 212(a) of bar, is clear that the cause at it section 13— is more Procedure is the statute which Code Civil narrowly applicable. Section specifically 13— injuries, their nature of plaintiffs, defines the must claims, the cause action specifying *** out of arising or death damages “injury involve 212(a) stand of section patient provisions care.” The 13— more generic far broader and sharp contrast 101, to a “civil ac- which language of “any injury.” tion” for 212(a) is more

The conclusion that is further sup- to the cause at bar applicable specifically 13—212 of the Code of the fact that section ported by to- section subsequent was enacted Civil Procedure 13—212 Immunity Act. Section was 8—101 of the Tort (735 & Ann. Historical enacted in ILCS 5/13— (Smith-Hurd 1992)), nearly two Notes, at 366 Statutory (745 in 1965 section 8—101 was enacted decades after Notes, Statutory Historical & ILCS Ann. 10/8 — 204 (Smith-Hurd 1993)).1

882 The fundamental rule of statu tory construction is to give effect to the intent of the legislature. E.g., v. Mikusch, State 242, 138 Ill. 2d 247 (1990). It is well that seeking established in to ascertain intent, legislative “[i]t is presumed the legislature, in enacting statutes, various acts and rationally with full knowledge of all previous enactments.” Mikusch, 138 Ill. 2d e.g., v. 247-48; also, at DeGrand Motors Insurance see Co., 521, 146 Ill. 2d v. (1992); 526 Spina Toyota Motor Credit Corp., 301 364, Ill. 3d Chicago App. (1998); 376 Osteopathic Medical v. Chicago, Centers City 271 Ill. 165, App. 3d 171-72 Inasmuch as section 13—212 of the Code of Civil Procedure was enacted subsequent to Act, 8—101 the Tort Immunity we may, pursu ant to well-settled rules construction, presume acted with legislature full knowledge the limita 101, in may further presume 8— chose, the legislature in enacting section 13— enlarge the in which cause of may action be brought specified defendants in engaged health providing services.

Applying these traditional rules of analysis, two Lanxon Magnus, court, of our v. panels 296 Ill. Marrese, and Cleaver v. (1998), App. (1993), 3d 778 court, one federal district (N.D. Murry Sheahan, Supp. 1998), F. have considered the precise presented issue the matter at bar. All three courts found section to be 13— more specific than section and held that section provided applicable statute limitations in medical malpractice against governmental enti ties their employees. and/or explanation authority,

Without or citation 1 Although years, both statutes have been amended in recent remedy did amendments not the conflict between these they provisions statutes as relate limitations for medical brought against municipal hospitals claims and/or employees. by rules long-established from these plurality departs exclusively to inquiry the specificity the focus of shifting 188 Ill. 2d 194. so defendants.” “nature of the nature obviates assessment doing, plurality of injury and the sustained claim plaintiffs Indeed, only altering the focus of it is by the plaintiff. the conclusion can analysis plurality escape that the 212(a) specifically applicable the more section is 13— to matter at statute bar. no citation provides that the plurality

It is significant proposition its any authority supporting to determined particular a statute must be specificity of the defendants. category examination of the of solely upon relevancy have considered the Those courts which a statute particular defendants covered under category of as overall anal part specificity have done so court’s of Chicago v. Transit Author ysis. example, Wheatley For 60, (1997), ity, App. 3d Authority Transit Metropolitan found section of (West 1994)) (70 to specific be more Act ILCS 3605/41 of Act because than section 8—101 the Tort Act Authority only is Metropolitan applicable Transit to claims only to claims and injury applicable personal Sekula, Heneghan the CTA. See also (1989) 212(a) (section 238, 242 of the Code 13— than the applicable of Procedure is more specifically Civil (Ill. Rev. Stat. limitations contribution 204) ch. because section par. 13— 13— specific and cate to a of claim to specific defendant). The focus upon sole gory plurality’s determining specific defendants in statute’s category of ity appears unprecedented. 8—101 controls finds that section plurality defendants which are it “specifically applies entities which entities of those employees and defendant within category

are a specific dentist, broader group physician, registered nurse 212(a).” or described in hospital 188 Ill. 2d 13— at 195. only plurality’s analysis Not is the misdirected, logic but its is flawed. The critical inquiry is which these two conflicting statutes more specifically ap particular action, cause plicable namely, plaintiffs’ medical malpractice claims. I submit that sec 212(a) controls, narrows, because it or makes more specific, the class of defendants as those individuals and directly entities patient contrast, involved in care. section 8—101 an sets forth extremely broad category defendants, all encompasses governmental entities and their employees. Contrary the plurality’s conclu sion, the health care providers and hospitals governed broader, constitute a subset within the government “local all-encompassing entity” category identified in section 8—101. newly

The plurality’s conceived approach deter- mining specificity of conflicting statutory provisions needlessly upsets long-established principles may result in uncertainty among members of the bench and regarding analysis bar which should be Fur- employed. ther, the plurality opinion many leaves questions unan- Is the category-of-defendants swered: meant to approach completely replace the specificity traditional rules of anal- ysis? plurality The decision to appears completely fore- close consideration of plaintiffs the nature of a claims and the of in injury sustained the determining specificity statutory a If provision. the plurality’s only intention was to supplement, rather than replace, the analysis, traditional modes of then when and under circumstances defendant-category what is the approach be The but employed? plurality opinion implies, does state, not this approach will be utilized when a pro- vision of the Immunity Act conflicts with another rule, statute. If this the is intended it would be beneficial to the bench bar to make this clear. authority supporting overwhelming light 212(a) is specifi that section

the conclusion bar, there considerable claims at is to the cally applicable de contrary plurality’s basis of the the question cause to opinion of the plurality of the content cision. Review deci essence, policy-driven is a that, at its reveals plurali The result. achieving particular aimed at sion ty’s conclusion that applicable more specifically

contained in section 8—101 is entirely, by almost reli supported, to the at matter bar the Tort enacting the legislative purpose ance upon correctly Act. The observes Immunity plurality local entities and public to protect Act is purpose arising operation from from liability their employees end, greater them and, to this affords government, and their em than entities protection nongovernmental correctly notes that plurality also ployees. of the shorter limitations purpose into claims encourage early investigation 8—101 towas government. financial exposure to lessen the City Chicago, Saragusa attendant may considerations be Important policy under the Tort dealing municipal liability decisions with However, bar, matter plural- Act. fact the limitation ity applying critical misses 212(a) to municipal in section period contained adversely affect hospitals and their would not employees Act, especially by public protected interests that section holding section 8—101. The plurality’s im- does not serve to specifically 8—101 more medical mal- government munize local defendants from the standard liability, holding nor does the alter practice actions. The liability malpractice to medical applicable any limit the time which ruling only serves within injuries action for munici- medical may brought. or of its be pal employees hospital all However, of limitation serve the primary purpose of preventing exposure extended to li potential ability by encouraging early into claims investigation during period when witnesses other evidence are available conditions have not materially changed. Hayes Mercy Center, & Hospital Medical See 136 Ill. Therefore, 2d 457-58 application two-year to all medical malpractice actions would not undermine intention of the legislature.

In its well-reasoned Lanxon v. Magnus, opinion the appellate court outlined compelling policy interests militating against imposing the shorter time limitation First, 8— 101 to medical malpractice actions. the court noted that due to the very nature of a medical claim, malpractice it readily is often not to the apparent Lanxon, injured he party or she has a cause action. App. addition, 296 Ill. In at 383. medical usually complex involve issues which require compliance requirements with certain prior filing to of the claim. For example, plaintiffs obtain an affi must (735 (West 1996)) a physician davit from ILCS 5/2 —622 certifying claim is plaintiff’s meritorious. Lanxon, Lanxon court App. 3d at 383. Finally, noted that the fact that a is a facility municipal hospital may not or an immediately apparent be known to indi Therefore, vidual in such a injured facility. may it not be known an it injured late, until is too party, claim would be a shorter statute of limita governed tion hospital due the status of public entity. as “[bjased Lanxon concluded that sum, nature and upon unique procedural requirements care, arising patient claims out we find no reason to municipal hospitals hold a lesser standard than Lanxon, hospital.” other 3d at 383. court held that statute of limitation sec two-year apply. should in flaws of the fundamental recognition some With one opinion, in the analysis plurality legal employed the the result salvaging a means of my colleagues, of as ameliorate the case, in this has attempted achieved However, this also is inherent in the decision. unfairness concurrence, Justice Heiple In special of no avail. his analysis the legal “unpersua acknowledges plurality’s *** that 8—101 is more general sive to the extent 212(a).” this citing to Heiple, than section Justice in v. Department Employment court’s decision Stone of Review, 257, (1992), at Security Board result that tempts plurality’s to defend the on basis “one of those instances presents section 8—101 where general ‘the to make the act control legislature intended ” J., 188 Ill. 2d at 199 concur ling.’ (Heiple, specially However, ring). scrutiny the Stone case reveals that intended to legislature conclusion that make in general controlling unsupport act this instance is also able.

In Stone, this court the issue of addressed whether had to name the Director of plaintiff Employment seeking a in Security complaint judicial as defendant his finding ineligible review of a decision him for unemploy ment Resolution of this issue this court required benefits. two 1100 of the interpret different statutes: (the Act) (Ill. Unemployment Insurance Act Rev. Stat. 520) 1989, 48, ch. and section 3—107 of Admin par. (the Law) (Ill. istrative Review Law Review Rev. Stat. 107). 1989, 110, 1100 of the Act par. ch. Section any by decision made the Board Review provided Security was review Department Employment Law, and, fur only able in accordance with the Review ther, a party the Director shall deemed to be be judicial action on review. Section 3—107 of Review Law that all who were provided persons parties of record to the before the administrative proceedings for agency shall, review, purposes judicial be made Stone, the plaintiff defendants. argued the Director was not party to the proceedings before agency, administrative was not plaintiff required to name the Director his for complaint judicial review.

We our Stone began analysis noting that, “[a]s we starting point, look the intent of legislature Stone, language the statute.” 151 Ill. 2d at 261. Having conflicted, concluded that the two statutes “ court observed that ‘[generally, specific statutory pro visions control over on general provisions the same ” Stone, Williams v. subject.’ 151 Ill. 2d quoting Comm’n, Illinois Scholarship State 139 Ill. 2d (1990). However, this court held that “the more specific statute does not control where ‘it the appears that intended legislature general to make the act control ” Stone, 266, 2B ling.’ Ill. quoting Singer, N. Statutory 51.05, § Sutherland on Construction at 174 (5th 1992). Examining ed. the at issue in that case, we that, pursuant observed section 3—102 of the (Ill. 102), 110, par. Review Law Rev. Stat. ch. 3— specifically provided legislature the that the statute the Review take precedence Law would over other statu Therefore, modes of this that tory review. court held because the Review itself stated that Law when its provi adopted statutory sions are no other expressly mode review is to it employed, legislature be was clear that the did not the Director in a intend be named complaint Stone, seeking judicial of a Board review decision. Stone, In bar, 2d at case at unlike the 266-67. did not include instructions within legislature explicit Act statutory language in the precedence conflicting provi determine event sions.

Also, statutory on Sutherland treatise construc- subject one with provides that where statute deals terms, subject deals with and another general appears it the latter unless prevail, will specifically, act control- general make legislature intended Statutory on Construction 2B Singer, N. Sutherland ling. (5th 1992). rule Again, supports 51.05, § at 174 ed. govern should section the conclusion 13— only is stated, As not matter at bar. 13— indica- is no than section there also more specific 8— intended that section 8—101 legislature tion that for medi- two-year period provided trump 212(a). in section cal 212(a) of the Code sum, I believe that stat- applicable more specifically of Civil Procedure is the Contrary I plurality, us. to the ute in the case before Harrison, that Lanxon believe, as does Justice over- and should not be correctly Cleaver were decided be re- court should judgment ruled. in this versed matter. in, this joins RATHJE dissent.

JUSTICE (No. 86160. OF CITY GLISSON, M. v. THE Appellee,

JOSEPH et al., MARION Appellants. Rehearing

Opinion denied October 1999. filed 29, 1999. November

Case Details

Case Name: Tosado v. Miller

Court Name: Illinois Supreme Court

Date Published: Oct 21, 1999

Citation: 720 N.E.2d 1075

Docket Number: 84712

Court Abbreviation: Ill.