Moore v. Jackson Park Hosp.

• Decision Date: 18 February 1983
• Docket Number: 56037,Nos. 56028,s. 56028
• Citation: 69 Ill.Dec. 191,95 Ill.2d 223,447 N.E.2d 408
• Parties: , 69 Ill.Dec. 191 Luella MOORE, Appellee, v. JACKSON PARK HOSPITAL et al., Appellants. Richard ISAACS, Appellee, v. MICHAEL REESE HOSPITAL & MEDICAL CENTER et al., Appellant. Toni Grossman FENCHEL, Appellee, v. MICHAEL REESE HOSPITAL & MEDICAL CENTER, Appellant.
• Court: Illinois Supreme Court

Page 408

447 N.E.2d 408

95 Ill.2d 223, 69 Ill.Dec. 191

Luella MOORE, Appellee, v. JACKSON PARK HOSPITAL et al., Appellants.

Richard ISAACS, Appellee, v. MICHAEL REESE HOSPITAL & MEDICAL CENTER et al., Appellant.

Toni Grossman FENCHEL, Appellee, v. MICHAEL REESE HOSPITAL & MEDICAL CENTER, Appellant.

Nos. 56028, 56037.

Supreme Court of Illinois.

Feb. 18, 1983.

Rehearing Denied April 8, 1983.

Lord, Bissell & Brook, Chicago, for Jackson Park Hosp., Michael Reese Hosp. and Medical Center; R. Dennis Rasor, Harold L. Jacobson, Hugh C. Griffin, Chicago, of counsel.

Wildman, Harrold, Allen & Dixon, Chicago, for Enrique Steider, M.D.; Richard C. Bartelt, William F. Haley, Chicago, of counsel.

McLaughlin, Kinser & Bryant, Chicago, for amicus curiae Illinois Hosp. Ass'n; Harry L. Kinser, Kenneth C. Robbins, Chicago, of counsel.

Richard M. Daley, State's Atty. of Cook County by Sp. Assts: Epton, Mullin, Segal & Druth, Ltd., Berger & Herman, Ltd., Alan D. Katz and David S. Pochis Ltd., Joel H. Fenchel, Chicago, for plaintiffs-appellees; Saul A. Epton, Thomas E. Kluczynski, Jeffrey Singer, Marvin L. Herman, Alan D. Katz., Chicago, of counsel.

A.J. Hardiman, Ltd., Chicago, for plaintiff-appellee, Luella Moore; Terrance J. Coughlin, A.J. Hardiman, Eugene C. Hardiman, Chicago, of counsel.

CLARK, Justice:

These consolidated cases involve the validity of section 21.1 of the Limitations Act (Ill.Rev.Stat.1977, ch. 83, par. 22.1). Section 21.1, on the date the complaints in these cases were filed, provided as follows:

"No action for damages for injury or death against any physician 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 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." (Emphasis added.) Ill.Rev.Stat.1977, ch. 83, par. 22.1.

In all three of the consolidated cases the respective panel of the appellate court reversed the Cook County circuit court's dismissals of the causes of action based upon the rule in Illinois that an amendment shortening a statute of limitations will not be retroactively applied so as to terminate a cause of action, unless the claimant has a reasonable amount of time after the amendment's effective date in which to file his or her claim. (Moore v. Jackson Park Hospital (1981), 101 Ill.App.3d 1009, 57 Ill.Dec. 430, 428 N.E.2d 1110; Isaacs v. Michael Reese Hospital & Medical Center (1981), 101 Ill.App.3d 876, 57 Ill.Dec. 261, 428 N.E.2d 941.) In all three cases, application of the amendment to the statute of limitations would instantaneously bar the plaintiffs' claims. We granted the petitions for leave to appeal in both the Moore case and in the Isaacs-Fenchel consolidated case and consolidated all three for hearing and opinion in this court.

The relevant facts in the Moore case are as follows:

On May 24, 1972, defendant Dr. Enrique Steider performed surgery on plaintiff, Luella Moore, at defendant Jackson Park Hospital. The plaintiff alleges that a needle was negligently left in her body during this surgery. On March 17, 1978, six years after the plaintiff's surgery, plaintiff Moore had an X ray taken which showed the presence of a needle in her body. Plaintiff alleges that she did not discover the presence of the needle until that date. Plaintiff filed her complaint on October 4, 1978. The circuit court dismissed the action with prejudice on November 19, 1980, based upon this court's holding in Anderson v. Wagner (1979), 79 Ill.2d 295, 37 Ill.Dec. 558, 79 Ill.2d 295; appeal dismissed sub nom. Woodward v. Burham City Hospital (1980), 449 U.S. 807, 101 S.Ct. 54, 66 L.Ed.2d 11.

The relevant facts in the Isaacs case are as follows:

On May 16, 1978, Richard Isaacs filed a suit against defendants, Dr. Joseph K. Calvin and Michael Reese Hospital and Medical Center. The complaint alleged that plaintiff Isaacs had received X-ray treatments for inflamed tonsils in 1940, when he was four years old. The complaint further alleged that as a result of these treatments, he developed growths on his thyroid gland which had to be surgically removed. Plaintiff alleged that the first time he knew of his condition was in May of 1977 when defendant Jackson Park Hospital notified him of the possible dangers resulting from these X-ray treatments. Isaacs underwent corrective surgery shortly after the notice from the hospital.

The facts in the Fenchel case are similar to those in Isaacs and are as follows:

On January 29, 1980, plaintiff Fenchel filed a malpractice action against defendant Michael Reese Hospital. From 1941 to 1943 plaintiff Fenchel underwent X-ray treatment for tonsillitis. Plaintiff alleges that, as a result of these treatments, tumors developed on her thyroid gland which had to be surgically removed. The complaint alleged that the plaintiff did not have knowledge of her condition until January 31, 1978.

In Anderson v. Wagner (1979), 79 Ill.2d 295, 37 Ill.Dec. 558, 79 Ill.2d 295; appeal dismissed sub nom. Woodward v. Burham City Hospital (1980), 449 U.S. 807, 101 S.Ct. 54, 66 L.Ed.2d 11, this court decided the constitutionality of section 21.1 of the Limitations Act (Ill.Rev.Stat.1977, ch. 83, par. 22.1). Due process and equal protection arguments under both our State and Federal constitutions were raised and addressed. (Ill. Const.1970, art. I, secs. 2, 12, 16; art. IV, sec. 13; U.S. Const., amend. XIV.) This court held that section 21.1 did not violate any of these provisions of either the Illinois Constitution or the United States Constitution. Thus, it is unnecessary for us to repeat the reasoning and holdings regarding the constitutionality of section 21.1 under these provisions.

The sole issue to be decided in this appeal is whether the 1976 amendment to section 21.1 can be applied retroactively so as to instantaneously bar these plaintiffs' causes of action on the effective date of the statute. Plaintiffs assert that our prior holding in Anderson v. Wagner did not address this issue. We agree with the plaintiffs that this issue was not specifically decided in the Anderson decision.

Plaintiffs assert that an amendment to a statute of limitations which decreases the time in which an action may be filed should not be applied retroactively so as to instantaneously bar their existing causes of action. We agree.

In Hupp v. Gray (1978), 73 Ill.2d 78, 22 Ill.Dec. 513, 382 N.E.2d 1211, this court stated, "Also, as was held in Orlicki, an amendment to a limitation statute shortening the period within which an action must be filed will be applied retroactively to actions not as yet commenced, provided there is a reasonable time after the effective date of the amendment within which to bring the action." (Emphasis added.) 73 Ill.2d 78, 83, 22 Ill.Dec. 513, 382 N.E.2d 1211, citing Meegan v. Village of Tinley Park (1972), 52 Ill.2d 354, 359, 288 N.E.2d 423.

In Orlicki v. McCarthy (1954), 4 Ill.2d 342, 122 N.E.2d 513, this court dealt with the issue of the retroactive application of amendments to statutes of limitation. Walter Orlicki was fatally injured on July 10, 1949, while a passenger in an automobile driven by an allegedly intoxicated individual. Suit was brought by the plaintiffs under the Liquor Control Act (Ill.Rev.Stat.1949, ch. 43, par. 135). At the time the decedent was killed, the Liquor Control Act provided that a suit could be brought within five years from the date of death. However, on August 10, 1949, the Liquor Control Act, upon which plaintiffs' rights against the defendants were predicated, was amended, requiring that "every action hereunder shall be commenced within two years next after the cause of action accrued." (Ill.Rev.Stat.1949, ch. 43, par. 135.) The plaintiffs in Orlicki filed suit on September 27, 1951, which was more than two years after the decedent's death, and more than two years after the effective date of the amendment to the Liquor Control Act. This court held that the legislature, which created the rights under the Liquor Control Act, had the power to repeal those rights. This court reasoned that the legislature had exercised that power by amending the Act and imposing time limitations for bringing actions under the Act. Thus, this court affirmed the judgments of the circuit and appellate courts allowing the defendants' motion to dismiss.

The Orlicki case is clearly distinguishable from the instant cases for two reasons. First, these plaintiffs' actions are negligence actions which sound in tort and were recognized at common law; they are not statutorily created remedies. Second, in the Orlicki case, the plaintiffs had two years after the effective date of the amendment of the Liquor Control Act in which to bring their action. In Orlicki, this court stated, "[I]t is our judgment that the time limitation amendment [of the Liquor Control Act] should be retroactively applied, on the ground that the legislature so intended, and that it is procedural in character." (4 Ill.2d 342, 354.) The intention of the legislature as to the applicability of the 1976 amendment to section 21.1 will be discussed later in this opinion. "Changes in procedure or existing remedies will not be applied retrospectively, however, where a vested, constitutionally protected right will be...