Hinkle by Hinkle v. Henderson

• Decision Date: 31 May 1996
• Docket Number: No. 95-3149,95-3149
• Citation: 85 F.3d 298
• Parties: Tomra HINKLE, a minor, by Patricia HINKLE, her mother and next friend, Patricia Hinkle, individually, and Thomas Hinkle, individually, Plaintiffs-Appellants, v. William HENDERSON, M.D., Defendant-Appellee.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 298

85 F.3d 298

64 USLW 2785

Tomra HINKLE, a minor, by Patricia HINKLE, her mother and next friend, Patricia Hinkle, individually, and Thomas Hinkle, individually, Plaintiffs-Appellants, v. William HENDERSON, M.D., Defendant-Appellee.

No. 95-3149.

United States Court of Appeals Seventh Circuit.

Argued March 29, 1996.

Decided May 31, 1996.

Lance Wittry, Cheryl A. Planck, Indianapolis, IN, for Plaintiffs-Appellants.

Richard E. Stites (argued), Livingston, Barger, Brandt & Schroeder, Bloomington, IL, for Defendant-Appellee.

Before CUMMINGS, MANION and EVANS, Circuit Judges.

CUMMINGS, Circuit Judge.

This diversity medical malpractice case raises an interesting question of Illinois law. Illinois has adopted a special statute of limitations for medical malpractice actions that contains a standard limitation period in which an action must be brought after a plaintiff discovers his injury. The statute also establishes an outside time limit in which an action must be brought, unaffected by a plaintiff's knowledge of his injuries, known as a statute of repose. The question presented is whether the Illinois savings statute, which gives plaintiffs one additional year to refile a case when the first case is dismissed on certain procedural grounds, applies to the medical malpractice statute of repose. Only one Illinois appellate court has addressed the issue, concluding that the savings statute did apply. The district court in this case, reasoning that statutes of repose are fundamentally different from statutes of limitations, disagreed. We now reverse.

I.

Tomra Hinkle was born prematurely on January 23, 1984. As a result, she suffers from retinopathy of prematurity and is blind. Plaintiffs allege that the medical malpractice of William Henderson, M.D., who provided Tomra's mother with obstetrical and prenatal care in 1983 and early 1984, caused Tomra's injury. On January 23, 1992, plaintiffs filed a complaint in the Circuit Court of Cook County, Illinois, within eight years of the premature birth. No service was effected or attempted on Henderson or any of the other named defendants; rather, after eight months in the circuit court, plaintiffs moved for a voluntary dismissal under 735 ILCS 5/2-1009. The court granted the motion and dismissed the case without prejudice on September 24, 1992.

On August 17, 1993, within one year of the voluntary dismissal but outside of the applicable limitations period, plaintiffs filed this case in the district court and effected service on Henderson within eight days. Plaintiffs' ability to refile the suit outside of the limitations period is based on the Illinois savings statute, 735 ILCS 5/13-217, which gives plaintiffs one year in which to bring a new suit following a voluntary dismissal. Henderson moved to dismiss the case as untimely filed on two alternative theories. First, he argued that the Illinois savings statute was inapplicable to the medical malpractice limitations statute. Second, he argued that the savings statute did not give plaintiffs an extra year to file because they failed to comply with Illinois Supreme Court Rule 103(b), which requires a plaintiff to exercise reasonable diligence in obtaining service. The district court dismissed plaintiffs' complaint based on defendant's first theory and therefore did not address the second. See Hinkle ex rel. Hinkle v. Henderson, 896 F.Supp. 190 (C.D.Ill.1995). Plaintiffs appeal the dismissal.

II.

A.

Illinois has a statute of repose governing medical malpractice cases such as this. The statute provides that an action must be brought within eight years of the alleged acts of negligence:

Except as provided in Section 13-215 of this Act [fraudulent concealment], no action for damages for injury or death against any physician, dentist, registered nurse or hospital duly licensed under the laws of this State, whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 8 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 where the person entitled to bring the action was, at the time the cause of action accrued, under the age of 18 years; provided, however, that in no event may the cause of action be brought after the person's 22nd birthday. * * *

735 ILCS 5/13-212(b). Based on this statute alone, it is clear that plaintiffs' district court action, brought more than nine years after Tomra's premature birth, was time-barred.

However, Illinois has also adopted a savings statute, which plaintiffs argue saved their cause of action by virtue of the voluntary dismissal in the Cook County Circuit Court:

In the actions specified in Article XIII of this Act or any other act or contract where the time for commencing an action is limited, if judgment is entered for the plaintiff but reversed on appeal, or if there is a verdict in favor of the plaintiff and, upon a motion in arrest of judgment, the judgment is entered against the plaintiff, or the action is voluntarily dismissed by the plaintiff, or the action is dismissed for want of prosecution, or the action is dismissed by a United States District Court for lack of jurisdiction, or the action is dismissed by a United States District Court for improper venue, then, whether or not the time limitation for bringing such action expires during the pendency of such action, the plaintiff ... may commence a new action within one year or within the remaining period of limitation, whichever is greater, after such judgment is reversed or entered against the plaintiff, or after the action is voluntarily dismissed by the plaintiff, or the action is dismissed for want of prosecution, or the action is dismissed by a United States District Court for lack of jurisdiction, or the action is dismissed by a United States District Court for improper venue.

735 ILCS 5/13-217 (emphasis added). On its face, the savings statute appears to encompass plaintiffs' case: the action brought by plaintiffs is one "where the time for commencing an action is limited"--in this case, by Section 212(b); plaintiffs voluntarily dismissed a prior action; and plaintiffs commenced a new action within one year of the voluntary dismissal. Nonetheless, the district court held that Section 217 did not apply to Section 212(b). It based this holding primarily on the distinction between statutes of repose like Section 212(b), to which it said Section 217 does not apply, and statutes of limitations, to which it said Section 217 does apply.

The Illinois Supreme Court has not addressed the question whether the savings provision in Section 217 applies to medical malpractice actions under Section 212(b), and it is therefore our task to determine how the Illinois Supreme Court would decide the issue. We begin by noting that the weight of authority is against the district court. Three state supreme courts and two state courts of appeals, including one in Illinois, have held that a savings statute does apply to save a cause of action otherwise barred by a medical malpractice statute of repose. See v. Hartley, 257 Kan. 813, 896 P.2d 1049 (1995); Cronin v. Howe, 906 S.W.2d 910 (Tenn.1995); Vesolowski v. Repay, 520 N.E.2d 433 (Ind.1988); Limer v. Lyman, 241 Ill.App.3d 125, 181 Ill.Dec. 667, 608 N.E.2d 918 (1993); Wade v. Reynolds, 34 Ohio App.3d 61, 517 N.E.2d 227 (1986). Only one state supreme court has held that a savings statute does not apply to a medical malpractice statute of repose. Wright v. Robinson, 262 Ga. 844, 426 S.E.2d 870 (1993). The only other state court case relied upon by the district court, Bruce v. Hamilton, 894 S.W.2d 274 (Tenn.Ct.App.1993), was later contradicted by the Tennessee Supreme Court in Cronin, supra, on precisely the same issue.

Nonetheless, the district court found that the Illinois Supreme Court would reject the reasoning of Limer, an Illinois appellate court case, and adopt the reasoning of Wright, the only state supreme court (Georgia) to reject the applicability of a savings statute to a statute of repose. The disagreement among the courts stems from the oftiterated distinction between statutes of limitations and statutes of repose. Here is one formulation:

A statute of limitations normally governs the time within which legal proceedings must be commenced after the cause of action accrues. A statute of repose, however, limits the time within which an action may be brought and is not related to the accrual of any cause of action. The injury need not have occurred, much less have been discovered.

Klein v. Catalano, 386 Mass. 701, 437 N.E.2d 514, 516 (1982) (citations omitted). Here is another:

"Statutes of limitations" extinguish, after period of time, right to prosecute accrued cause of action; "statute of repose," by contrast, limits potential liability by limiting time during which cause of action can arise. It is distinguishable from statute of limitations, in that statute of repose cuts off right of action after specified time measured from delivery of product or completion of work, regardless of time of accrual of cause of action or of notice of invasion of legal rights.

Black's Law Dictionary 1411 (6th ed.1990) (citations omitted). This Court has stated that statutes of limitations are procedural, barring only the remedy, while statutes of repose are substantive, extinguishing the right to bring a cause of action. Boggs v. Adams, 45 F.3d 1056, 1060 (7th Cir.1995).

Illinois' medical malpractice limitations statute, 735 ILCS 5/13-212, provides an excellent example of how statutes of limitations and statutes of repose operate. The adoption and rationale of Section 212 was outlined by the Illinois Supreme Court in Anderson v. Wagner, 79 Ill.2d 295, 37 Ill.Dec. 558, 402 N.E.2d 560 (1979); see also Hayes v. Mercy Hosp. & Medical Ctr., 136 Ill.2d 450, 457-458, 145 Ill.Dec. 894, 897-898, 557 N.E.2d 873, 876-877 (1990). In the early 1970s, states...