Tosado v. Miller

• Decision Date: 21 October 1999
• Docket Number: No. 84712.,84712.
• Citation: Tosado v. Miller, 188 Ill. 2d 186, 720 N.E.2d 1075, 242 Ill.Dec 120 (Ill. 1999)
• Parties: Linnette Concepcion TOSADO, Appellant, v. A. MILLER et al., Appellees (Gail Phipps, Appellant, v. Lincoln Medical Center, Ltd., et al., Appellees.
• Court: Illinois Supreme Court

720 N.E.2d 1075

188 Ill.2d 186

242 Ill.Dec. 120

Linnette Concepcion TOSADO, Appellant, v.A. MILLER et al., Appellees (Gail Phipps, Appellant, v. Lincoln Medical Center, Ltd., et al., Appellees.

No. 84712.

Supreme Court of Illinois.

October 21, 1999.

Rehearing Denied November 29, 1999.

David A. Novoselsky, David A. Novoselsky & Associates, Kent M. Lucaccioni, William A. Hertzerg & Associates, Robert W. Karr, Robert W. Karr and Associates, Ltd., Chicago, for Linette Concepcion Tosado and Gail Phipps.

Peter D. Fischer, Deputy Chief Civil Actions Bureau, Chicago, for County of Cook, A. Miller, R. Kopolovic, M. Cohen, R. Barnett and T. Padilla.

Francis T. Timons, Bruce R. Pfaff & Associates, Ltd., Chicago, for Amicus Curiae, Illinois Trial Lawyers Association.

Justice MILLERdelivered the opinion of the court:

Plaintiffs brought separate actions in the circuit court of Cook County seeking to recover damages against defendants for alleged medical malpractice.Defendants were local public entities or their employees.In each case, defendants filed motions to dismiss.In the motions, defendants alleged that the one-year limitation period found in section 8-101 of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act)(745 ILCS 10/8-101 et seq.(West 1996)) barred plaintiffs' actions.The circuit court denied defendants' motions to dismiss.The appellate court consolidated these cases on appeal and reversed.293 Ill.App.3d 544, 228 Ill.Dec. 76, 688 N.E.2d 774.We allowed plaintiffs' joint petition for leave to appeal.177 Ill.2d R. 315(a).In addition, we granted the Illinois Trial Lawyers Association leave to submit a brief as amicus curiae.155 Ill.2d R. 345.We now affirm the judgment of the appellate court.

BACKGROUND

CauseNo. 92-L-4475

Plaintiff, Linnette Concepcion Tosado, commenced her action on April 10, 1992, by filing a complaint in the circuit court of Cook County.The complaint alleged that Drs. Miller, Kopolovic, Cohen, Barnett, and Padilla, all Cook County Hospital employees, were negligent in failing to assess the likelihood of scarring in connection with her surgery.The complaint further alleged that defendants were negligent in failing to warn her of the risks and consequences associated with the surgery and that her consent to the surgery was therefore uninformed.

Defendants filed a motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure(735 ILCS 5/2-619(West 1992)).In their motion, defendants argued that Tosado's claim must fail because her complaint was filed more than one year after the date of the injury or discovery of a cause of action.Defendants relied on the one-year limitation period contained in section 8-101 of the Tort Immunity Act.Following a hearing, the trial judge denied defendants' motion believing that a two-year statute of limitation applied.The trial judge, however, found that the case involved a question of law as to which there is a substantial ground for difference of opinion and certified to the appellate court, in substance, the following question:

In a medical malpractice case against a local entity and/or its employees, does the one-year limitation period in the Tort Immunity Act or the two-year limitation period in section 13-212(a) of the Code of Civil Procedure(735 ILCS 5/13-212(a)(West 1992)) apply?

Defendants filed a petition for leave to appeal in the appellate court and leave was granted.The appellate court consolidated this cause with cause No. 94-L-15720 and reversed the circuit courts' denial of defendants' motions to dismiss.293 Ill.App.3d 544, 228 Ill.Dec. 76, 688 N.E.2d 774.In doing so, the appellate court held that "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."293 Ill.App.3d at 546, 228 Ill.Dec. 76, 688 N.E.2d 774.We allowed plaintiffs' joint petition for leave to appeal.177 Ill.2d R. 315(a).

CauseNo. 94-L-15720

In cause No. 94-L-15720, plaintiff, Gail Phipps, commenced her action on December 12, 1994, by filing a complaint in the circuit court of Cook County.Phipps subsequently filed a nine-count amended complaint.According to the allegations in the amended complaint, defendants, Cook County Hospital, Dr. K. Naidoo, an employee of the hospital, and Lincoln Medical Center, Ltd., a professional medical corporation, were negligent in providing Phipps medical care during her pregnancy.

Defendants filed a motion to dismiss counts IV through IX of the amended complaint, those counts naming Cook County Hospital and its employee, Dr. K. Naidoo, as defendants, pursuant to section 8-101 of the Tort Immunity Act(745 ILCS 10/8-101 et seq.(West 1996)).Counts I through III were filed against a private corporation and are not at issue in this appeal.In their motion, defendants argued that Phipps' action was untimely under the one-year limitation period found in section 8-101 of the Tort Immunity Act.Phipps responded by asserting that section 13-212(a) of the Code of Civil Procedure set forth the applicable limitation period.

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

Defendants filed a petition for leave to appeal in the appellate court.The appellate court granted defendants' petition.As noted above, the appellate court consolidated these causes for appeal and reversed the circuit courts' denial of defendants' motions.293 Ill.App.3d 544, 228 Ill.Dec. 76, 688 N.E.2d 774.We allowed plaintiffs' joint petition for leave to appeal.177 Ill.2d R. 315(a).

DISCUSSION

The issue presented in this case is whether the two-year limitation period in section 13-212(a) of the Code of Civil Procedure or the one-year limitation period in section 8-101 of the Tort Immunity Act applies to medical malpractice actions against local governmental entities and/or their employees.

Section 13-212 of the Code provides in pertinent part:

"Physician or hospital.(a) Except as provided in Section 13-215 of this Act, 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 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, * * * of the injury or death * * *."735 ILCS 5/13-212(a)(West 1992).

Section 8-101 of the Tort Immunity Act 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 the common law or statutes or Constitution of this State."745 ILCS 10/8-101(West 1996).

We believe the language of the statutes is plain and unambiguous.As such, there is no occasion to use aids in the construction of either statute and the plain meaning of the statutes should prevail.Fosco v. Illinois Municipal Retirement Fund,213 Ill.App.3d 842, 157 Ill.Dec. 301, 572 N.E.2d 370(1991).However, because either section 13-212(a) of the Code or section 8-101 of the Tort Immunity Act could apply to plaintiffs' actions in the absence of the other, we must decide which of these conflicting provisions must be given effect.In doing so, we must determine which of the two statutes more specifically applies to the case at hand.Zimmer v. Village of Willowbrook,242 Ill.App.3d 437, 442, 182 Ill.Dec. 840, 610 N.E.2d 709(1993).

Plaintiffs argue that section 13-212(a), containing the two-year limitation period, is the more specific statute and accordingly should be applied to this case.They assert that section 13-212 more narrowly defines defendants, specifying physicians, dentists, registered nurses and hospitals, rather than setting forth the broader category of all governmental entities and their employees.In addition, plaintiffs argue that section 13-212 more narrowly defines plaintiffs and the nature of the claim, specifying that the action must arise out of patient care, as opposed to the broader language of section 8-101 that applies to any injury.

In support of these contentions, plaintiffs rely upon two appellate court decisions, Lanxon v. Magnus,296 Ill.App.3d 377, 230 Ill.Dec. 641, 694 N.E.2d 610(3d Dist.1998), andCleaver v. Marrese,253 Ill.App.3d 778, 193 Ill.Dec. 8, 625 N.E.2d 1129(5th Dist.1993), and one federal district court decision, Murry v. Sheahan,991 F.Supp. 1052(N.D.Ill.1998), all of which considered the question presented here.

In Cleaver v. Marrese,253 Ill.App.3d 778, 193 Ill.Dec. 8, 625 N.E.2d 1129(5th Dist.1993), plaintiff, Donna Cleaver, filed a medical malpractice action against Dr. R. Anthony Marrese and the Wood River Township Hospital.The trial court granted the hospital's motion for summary judgment because plaintiff filed her complaint within two years, but more than one year after the date on which the injury was received or the cause of action accrued.On appeal, the appellate court reversed, finding that the two-year limitation period contained in section 13-212(a) of the Code of Civil Procedure applied.The appellate court stated that, "[B]ased on the type of claim plaintiff has filed, an analysis of the conflicting statutes of limitations, and the rules of statutory construction, we conclude that section 13-212 more specifically applies to the instant case."Cleaver,253 Ill.App.3d at 783, 193 Ill.Dec. 8, 625...