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Anderson v. Wagner

OPINION FILED MAY 26, 1978.

THOMAS ANDERSON ET AL., PLAINTIFFS-APPELLANTS,

v.

WILLIAM L. WAGNER, M.D., DEFENDANT-APPELLEE.



APPEAL from the Circuit Court of Macon County; the Hon. ALBERT G. WEBBER, III, Judge, presiding.

MR. PRESIDING JUSTICE REARDON DELIVERED THE OPINION OF THE COURT:

The plaintiffs, Thomas and Marilyn Anderson, appeal the dismissal of their medical malpractice action against the defendant, William L. Wagner, M.D., for damages caused by the birth to them of a child who is afflicted with birth defects which allegedly resulted from Mrs. Anderson's contraction of rubella or German measles during the early stages of her pregnancy. In dismissing the action, the circuit court found that the action was not timely filed within the applicable period of limitation and that, in any event, the plaintiffs do not possess an actionable claim for the birth of their child even if they are able to establish that defendant performed the negligent acts alleged in the original and amended complaints.

On June 23, 1977, and on August 29, 1977, plaintiffs filed their original and amended complaints which alleged that defendant treated Mrs. Anderson during her pregnancy from September 1972, through May 21, 1973, but that defendant failed to inform her of the positive results of a rubella test he had administered to her. Plaintiffs contend that defendant failed to inform them of the risks incident to Mrs. Anderson's pregnancy, that he failed to treat Mrs. Anderson's condition in a manner suitable and customary for his profession, that he negligently read Mrs. Anderson's test results, that he failed to refer Mrs. Anderson to another physician capable of treating her condition, that he neglected to advise Mrs. Anderson of alternative treatments and procedures available to her and that he fraudulently concealed his negligence from the plaintiffs. The complaints also allege that Mrs. Anderson gave birth to a son on May 20, 1973, but that it was not until January 26, 1976, that plaintiffs first had reason to know of defendant's negligent care.

On appeal, plaintiffs contend that their action is not barred by the statute of limitations. They also contend that an obstetrician who neglects to inform his patient of the fact that she has rubella and may give birth to a defective child should be liable not for the child's birth, but for damages representing the difference between the reasonable financial support for a normal child and that required for the defective child, plus compensation for the parents' pain and suffering. To support this proposition, plaintiffs rely on Jacobs v. Theimer (Tex. 1975), 519 S.W.2d 846, which held that the plaintiffs in that case stated a cause of action on facts similar to those presented in the instant case. (See also Sherlock v. Stillwater Clinic (1977), ___ Minn. ___, 260 N.W.2d 169 (cause of action stated for birth of a healthy child subsequent to a negligently performed vasectomy); Karlsons v. Guerinot (1977), 57 App. Div.2d 73, 394 N.Y.S.2d 933 (cause of action stated by a 37-year-old mother with a thyroid condition who gave birth to a mongoloid child without being advised of the risks inherent in her pregnancy); Renslow v. Mennonite Hospital (1977), 67 Ill.2d 348, 367 N.E.2d 1250 (cause of action stated for negligent blood transfusion to mother years prior to birth of plaintiff daughter afflicted with Rh syndrome).) The defendant, on the other hand, contends that plaintiffs' action is barred by the statute of limitation. He also contends that his alleged negligence did not occasion the child's injury because, after Mrs. Anderson contracted rubella, the child lost all chance of being born without birth defects. Defendant contends that, as a result, the only damages which might be assessed against him would have to reflect the difference between the birth of a child with birth defects and the birth of no child at all. Defendant's theory is premised on Gleitman v. Cosgrove (1967), 49 N.J. 22, 227 A.2d 689, where, on facts similar to those in the instant case, the court held that the complaint did not give rise to damages cognizable at law. (See also Howard v. Lecher (1976), 53 App. Div.2d 420, 386 N.Y.S.2d 460 (parents could not recover for mental distress and emotional disturbance resulting from doctor's failure to test for Tay-Sachs disease).) Defendant's theory becomes attractive, albeit more complex, when it is recognized that abortions were, for most purposes, illegal in Illinois at the time of Mrs. Anderson's pregnancy. Section 23-1 of the Criminal Code of 1961 (Ill. Rev. Stat. 1971, ch. 38, par. 23-1) (repealed by P.A. 78-225, § 10, eff. July 19, 1973).

Prior to November 11, 1975, section 21.1 of the Limitations Act (Ill. Rev. Stat. 1973, ch. 83, par. 22.1) provided:

"Whenever in the course of any medical, dental, surgical or other professional treatment or operation, any foreign substance other than flesh, blood or bone, is introduced and is negligently permitted to remain within the body of a living human person, causing harm, the period of limitation for filing an action for damages does not begin until the person actually knows or should have known of the facts of hurt and damage to his body; provided that no such action may be commenced more than 10 years after such treatment or operation."

Between November 11, 1975, and September 19, 1976, section 21.1 provided:

"Whenever in the course of any treatment or operation, any foreign substance other than flesh, blood or bone, is introduced and is negligently permitted to remain within the body of a living human person, causing harm, the period of limitation for filing an action for damages does not begin until the person actually knows or should have known of the facts of hurt and damage to his body; provided that no such action may be commenced more than 10 years after such treatment or operation.

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 5 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." (Ill. Rev. Stat. 1975, ch. 83, par. 22.1.)

After September 19, 1976, section 21.1 provided:

"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." Ill. Rev. Stat. 1977, ch. 83, par. 22.1.

• 1 The version of section 21.1 (Ill. Rev. Stat. 1973, ch. 83, par. 22.1) which was in effect prior to November 11, 1975, is by its own terms inapplicable in the instant case, because no foreign substance was introduced into or permitted to remain in Mrs. Anderson's body. We must determine, therefore, whether the version which took effect on November 11, 1975 (Ill. Rev. Stat. 1975, ch. 83, par. 22.1), or the version which took effect on September 19, 1976 (Ill. Rev. Stat. 1977, ch. 83, par. 22.1), governs this case. In Arnold Engineering, Inc. v. Industrial Com. (1978), ___ Ill.2d ___, ___, ___ N.E.2d ___, ___ the court repeated the well-established principle that an amendment to a statute of limitations which shortens the period of limitation "* * * will not be retroactively applied so as to terminate a cause of action unless the party has a reasonable amount of time after the amendment's effective date in which to file his action. (E.g., [citations]; Carlin v. Peerless Gas Light Co. (1918), 283 Ill. 142, 143-44." In Carlin, the court held that a nine-month period for filing suit after an amendment's effective date was reasonable. In the instant case, after the September 19, 1976, effective date of the most recent amendment to section 21.1, plaintiffs had eight months in which to file their complaint. On the authority of Carlin, therefore, we find that eight-month period to be reasonable and we hold that the four-year limitation period provided in the version of section 21.1 which took effect on September 16, 1976 (Ill. Rev. Stat. 1977, ch. 83, par. 22.1), is applicable in the instant case.

We are aware of the many recent Illinois decisions discussing the so-called "discovery rule" and its relation to our law pertaining to statutes of limitation. (Auster v. Keck (1976), 63 Ill.2d 485, 487-88, 349 N.E.2d 20; Tom Olesker's Exciting World of Fashion, Inc. v. Dun & Bradstreet, Inc. (1975), 61 Ill.2d 129, 131-37, 334 N.E.2d 160; Lipsey v. Michael Reese Hospital (1970), 46 Ill.2d 32, 37-41, 262 N.E.2d 450; Rozny v. Marnul (1969), 43 Ill.2d 54, 68-73, 250 N.E.2d 656; Ilardi v. Spaccapaniccia (1977), 53 Ill. App.3d 933, 934, 369 N.E.2d 144, 146; Anguiano v. St. James Hospital (1977), 51 Ill. App.3d 229, 366 N.E.2d 930; see also Scott, For Whom the Time Tolls — Time of Discovery and the Statute of Limitations, 64 Ill. Bar J. 326 (1976).) Those authorities, however, do not control our disposition of the instant case, because section 21.1 expressly recites that: "No action for damages for injury or death against any physician or hospital * * * whether based upon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years [after discovery] * * *, 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." (Emphasis supplied.) (Ill. Rev. Stat. 1977, ch. 83, par. 22.1.) Here, the last date on which defendant's allegedly tortious conduct could have occurred was May 20, 1973, but plaintiffs' original complaint was not filed until June 23, 1977 — more than 4 years later. Accordingly, we hold that the trial court properly entered an order of dismissal for failure to file a timely complaint.

Plaintiffs contend that the 4-year limitation period provided in section 21.1 violates the due process, equal protection, and special legislation provisions of the 1970 Illinois Constitution. In analyzing these contentions, we recognize that scholarly writers are far from reaching a consensus on the proper interpretations which courts> should give to these provisions. (Compare Gunther, Foreword: In Search of Evolving Doctrine on a Changing Court: A Model for a Newer Equal Protection, 86 Harv. L. Rev. 1 (1972), with Tribe, Foreword: Toward a Model of Roles in the Due Process of Life and Law, 87 Harv. L. Rev. 1 (1973); Karst, Foreword: Equal Citizenship under the Fourteenth Amendment, 91 Harv. L. Rev. 1 (1977); and Turkington, Equal Protection of the Laws in Illinois, 25 De Paul L. Rev. 385 (1976).) It is, however, generally true that, in order for a statute to pass constitutional muster in terms of the due process clause, the statutory means selected by the legislature must bear a real and substantial relation to the objective sought to be regulated for the health, morals, welfare, and safety of the community. (Kansas ex rel. Schneider v. Liggett (1978), ___ Kan. ___, ___, 576 P.2d 221, 225-26.) The yardstick for measuring equal protection arguments has a number of sides. The traditional test for equal protection is not whether a statute results in unequal treatment, but whether the statutory inequality of treatment has a reasonable basis in fact. (McGowan v. Maryland (1961), 366 U.S. 420, 425-26, 6 L.Ed.2d 393, 399, 81 S.Ct. 1101, 1105.) A more exacting test known as the strict scrutiny test is employed in cases concerning "suspect classifications" (e.g., race, sex, ethnic background, residency, and alienage) or "fundamental interests" (e.g., the right to travel freely or to practice a religion). (Kansas ex rel. Schneider v. Liggett.) We are confident that the ...


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