Tosado v. Miller

• Decision Date: 02 December 1997
• Docket Number: Nos. 1-96-0771,1-96-4075,s. 1-96-0771
• Citation: Tosado v. Miller, 688 N.E.2d 774, 293 Ill.App.3d 544, 228 Ill.Dec. 76 (Ill. App. 1997)
• Parties: , 228 Ill.Dec. 76 Linnette Concepcion TOSADO, Plaintiff-Appellee, v. A. MILLER, R. Kopolovic, M. Cohen, R. Barnett, and T. Padilla, Defendants-Appellants. Gail PHIPPS, Indiv. and as Special Adm. of the Estate of Futon Phipps, a Minor, Deceased, Plaintiff-Appellee, v. LINCOLN MEDICAL CENTER, LTD., K. Naidoo, and County of Cook, d/b/a Cook County Hospital, Defendants-Appellants.
• Court: Appellate Court of Illinois

Page 774

688 N.E.2d 774

293 Ill.App.3d 544, 228 Ill.Dec. 76

Linnette Concepcion TOSADO, Plaintiff-Appellee, v.A. MILLER, R. Kopolovic, M. Cohen, R. Barnett, and T.

Padilla, Defendants-Appellants.

Gail PHIPPS, Indiv. and as Special Adm. of the Estate ofFuton Phipps, a Minor, Deceased, Plaintiff-Appellee, v.LINCOLN MEDICAL CENTER, LTD., K. Naidoo, and County of Cook, d/b/a Cook County Hospital, Defendants-Appellants.

Nos. 1-96-0771, 1-96-4075.

Appellate Court of Illinois First District, Second Division.

Dec. 2, 1997.

Jack O'Malley, State's Attorney of Cook County, Chicago (Patricia Shymanski, Richard A. Stevens, Judy Mondello Wick, Mary Margaret Burke and Sara Dillery Hynes, of counsel), for Defendants-Appellants.

William A. Hertzberg & Associates, Chicago, for Plaintiff-Appellee.

Justice RAKOWSKIdelivered the opinion of the court:

Plaintiffs filed separate complaints against Cook County Hospital and its doctors for medical malpractice.Defendants moved to dismiss the complaints on the basis that the complaints were filed after the expiration of the one-year limitations period of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act)(745 ILCS 10/8-101(West 1996)).Following the Fifth District Appellate Court's decision in Cleaver v. Marrese, 253 Ill.App.3d 778, 193 Ill.Dec. 8, 625 N.E.2d 1129(1993), the circuit court denied defendants' motions and held that the two-year limitations period of the Code of Civil Procedure(Code)(735 ILCS 5/13-212(a)(West 1996)) controlled.Pursuant to Supreme Court Rule 308(155 Ill.2d R. 308), the courts in both cases certified the following question for appeal: Which statute of limitations applies to malpractice actions against Cook County Hospital and its physician employees, the one-year limitations period of the Tort Immunity Act or the two-year limitations period of the Code governing medical malpractice actions?

The cases were consolidated for purposes of appeal.We hold the one-year limitations period of the Tort Immunity Act controls because it is a more specific statute and because this construction comports with the plain language of the Tort Immunity Act.In holding as we do, we decline to follow the court's decision in Cleaver.Accordingly, we reverse the denial of defendants' motions to dismiss plaintiffs' complaints.

ANALYSIS

I.Statute of Limitations and Notice

Prior to the 1986amendments to the Tort Immunity Act, a party that wanted to bring an action against a local public entity was required to give written notice within a specified period of time from the date of injury or the cause of action accrued.Ill.Rev.Stat.1985, ch. 85, par. 8-102.In 1986, the statutory notice requirement was repealed and changes were incorporated in section 8-101 of the Tort Immunity Act.Pub. Act 84-1431, art. 1, § 3, eff. November 25, 1986.Section 8-101, at issue here, provides:

"No civil action may be commenced in any court against a local entity or any of its employees for any injury unless it is commenced within one year from the date that the injury was received or the cause of action accrued.For purposes of this Article, the term 'civil action' includes any action, whether based upon common law or statutes or Constitution of this State."745 ILCS 10/8-101(West 1996).

The Illinois Supreme Court has expressly recognized that the policy concerns underlying the notice provision of the Tort Immunity Act are identical to those of section 8-101 of the Tort Immunity Act.Saragusa v. City of Chicago, 63 Ill.2d 288, 292, 348 N.E.2d 176(1976).The common purposes of the two provisions are to provide the local governmental entity an early opportunity to investigate the claim asserted against it and to lessen the exposure of the local governmental entity to actions already existing under the common law.Saragusa, 63 Ill.2d at 292, 348 N.E.2d 176.Although the statutory notice provision has been repealed, we are persuaded nevertheless by the reasoning of several notice provision cases in reaching the conclusion that the one-year limitations period of section 8-101 of the Tort Immunity Act governs the cases at bar.

In Rio v. Edward Hospital, 104 Ill.2d 354, 365, 84 Ill.Dec. 461, 472 N.E.2d 421(1984), the Illinois Supreme Court held the discovery rule and the four-year statute of repose applied to medical malpractice claims against local governmental entities and their employees.The court also held that the notice provision of the Tort Immunity Act(section 8-102) applied with equal force to such claims.Thus, by applying the discovery rule to local governmental defendants, an injured party would still be required to give timely notice after discovery of his injury.Rio, 104 Ill.2d at 365, 84 Ill.Dec. 461, 472 N.E.2d 421.See alsoSaragusa, 63 Ill.2d 288, 348 N.E.2d 176;Thomas v. Davenport, 196 Ill.App.3d 1042, 143 Ill.Dec. 669, 554 N.E.2d 604(1990);Stewart v. County of Cook, 192 Ill.App.3d 848, 140 Ill.Dec. 23, 549 N.E.2d 674(1989)(all applying the former notice provision of the Tort Immunity Act to medical malpractice claims against publicly owned hospitals).

Of primary import, the supreme court observed that the notice provision of the Tort Immunity Act was, in effect, a limitations provision, which could be waived by the local governmental entity.Rio, 104 Ill.2d at 362, 84 Ill.Dec. 461, 472 N.E.2d 421.Moreover, the notice provision of section 8-102 was to be read in conjunction with section 8-101, requiring that suit be filed within the prescribed time period.SeeSaragusa, 63 Ill.2d at 293, 348 N.E.2d 176.Although the Rio court did not discuss what statute of limitations period applies to medical malpractice actions against local governments, we are convinced that inherent in Rio is the presumption that the one-year period of section 8-101 applies.

We see no logical reason for distinguishing the effect of a notice provision from the effect of a statute of limitations provision in the Tort Immunity Act."Both require a plaintiff to take some sort of action within a specified time period and both affect plaintiff's cause of action if not followed."Slaughter v. Rock Island County Metropolitan Mass Transit District, 275 Ill.App.3d 873, 876, 212 Ill.Dec. 284, 656 N.E.2d 1118(1995).Given their identical effect on a plaintiff's cause of action and underlying policy concerns, we are led to conclude that, like the notice provision before its repeal, the limitations period set forth in section 8-101 of the Tort Immunity Act also applies to actions against local public hospitals.Any other conclusion would result in a departure from the plain language of the Tort Immunity Act, which prescribes a one-year time period for any civil action to commence against a publicly owned entity.

II.Statutory Construction

As stated above, the relevant statutes are section 8-101 of the Tort Immunity Actandsection 13-212(a) of the Code.Both statutes set forth periods of limitations for filing suit.Section 8-101 sets forth a one-year period for filing any civil action against a local governmental entity.Section 13-212(a) sets forth a two-year period for commencing medical malpractice actions.Neither statute refers to the other; however, either statute could arguably apply to plaintiffs' medical malpractice actions against the publicly owned hospital and its employees.

The cardinal rule of statutory construction is to ascertain and give effect to the legislative intent of the statute.In re Chicago Flood Litigation, 176 Ill.2d 179, 193, 223 Ill.Dec. 532, 680 N.E.2d 265(1997).Courts determine the legislative intent from the language of the statute itself.In re Chicago Flood Litigation, 176 Ill.2d at 193, 223 Ill.Dec. 532, 680 N.E.2d 265.If the intent of the legislature can be ascertained from the plain language of the statute itself, that intent must prevail.Barnett v. Zion Park District, 171 Ill.2d 378, 388-89, 216 Ill.Dec. 550, 665 N.E.2d 808(1996).In construing the words of the statute, we must give them their plain and ordinary meaning.Hernon v. E.W. Corrigan Construction Co., 149 Ill.2d 190, 194-95, 172 Ill.Dec. 200, 595 N.E.2d 561(1992)."We must not depart from the plain language of the Act by reading into it exceptions, limitations, or conditions that conflict with the express legislative intent."In re Chicago Flood Litigation, 176 Ill.2d at 193, 223 Ill.Dec. 532, 680 N.E.2d 265.

The language of both statutes is unambiguous.Section 8-101 of the Tort Immunity Act clearly provides that local governmental units and their employees are not subject to suit beyond a one-year period.This provision makes no reference to specific governmental agencies or categories of employees but, rather, limits liability for any civil action, whether based upon the common law, statutes, or the Illinois Constitution.745 ILCS 10/8-101(West 1996).

Section 13-212(a) of the Code is also unambiguous.It clearly provides that no action for damages arising out of patient care, whether based upon tort, breach of contract, or otherwise, may be brought after two years of discovery against a physician, dentist, registered nurse, or hospital.735 ILCS 5/13-212(a)(West 1996).The statute also includes a four-year repose period, which provides that in no event shall such action be brought more than four years after the act or omission occurred.735 ILCS 5/13-212(a)(West 1996).

Both statutes are germane to plaintiffs' causes of action.However, without reading exceptions and limitations into the Tort Immunity Act, we cannot say the limitations period of the Tort Immunity Act does not apply here.There is nothing in the Tort Immunity Act that evinces a legislative intent to exempt local public hospitals or their employees from the limitations provision of section 8-101.

The clear intent of the legislature in enacting the Tort Immunity Act was to insulate local governmental bodies from being sued beyond a one-year period.The purpose of...