APPEAL from the Circuit Court of Champaign County; the Hon.
CREED D. TUCKER, Judge, presiding.
MR. JUSTICE CRAVEN DELIVERED THE OPINION OF THE COURT:
This is an appeal of an order of the circuit court of Champaign County dismissing plaintiffs' complaint for medical malpractice and upholding the constitutionality of section 21.1 of the Limitations Act (Ill. Rev. Stat. 1975, ch. 83, par. 22.1 as amended by P.A. 79-1434 (1976)). The plaintiff argues that section 21.1 constitutes special legislation and is unconstitutional. We agree, and reverse and remand for reinstatement of the complaint.
Count I alleges that on November 27, 1965, Charles C. Woodward entered Burnham City Hospital (Hospital) for a right thigh muscle biopsy which resulted in an erroneous diagnosis of plaintiff's condition. Defendant George Green, a licensed physician and surgeon and a staff member at the Hospital, was charged in count II with erroneous diagnosis and treatment of plaintiff's condition. Defendant Bobowski, a pathologist and also a staff member at the Hospital, was charged in count III with making an erroneous diagnosis. Count IV of the complaint alleged loss of consortium by plaintiff's wife, Carol Woodward.
The complaint alleged that as a result of defendants' acts, Charles C. Woodward developed a condition known as steroid myopathy and had suffered the amputation of both lower limbs, and corrective surgery for the removal of cataracts. The defendants' alleged errors were first discovered in February 1976 after samples of tissue removed from the right thigh muscle were examined microscopically at another facility.
Defendants responded to the complaint with motions to dismiss pursuant to the limitations in section 21.1. An amended complaint was filed by Carol Woodward, as administrator of the estate of Charles Woodward, and individually, in which she realleged the negligent acts cited in the original complaint and further alleged that Charles C. Woodward died on February 20, 1977, as a result of the negligent acts. The trial court, after considering the briefs and arguments of the parties, allowed the motions to dismiss. The court found that section 21.1 was constitutional and that the plaintiff had not complied with its requirements.
Section 21.1 of the Limitations Act provides, insofar as is pertinent here, that:
"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 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.)
In the instant case, the alleged negligent acts occurred in 1965, and these acts were not discovered until 1976. Thus, a direct application of section 21.1, if it is constitutional, bars plaintiff's claim because the action was brought more than four years after the occurrence date.
The plaintiff argues, however, that section 21.1 confers a special benefit upon physicians in hospitals and not upon other potential tortfeasors in the health care area, such as nurses, dentists, chiropractors, nursing homes, or sanatoriums. In effect, the argument presented is that section 21.1 is unconstitutional because it is special legislation in violation of article IV, section 13, of the 1970 Illinois Constitution, which states:
"The General Assembly shall pass no special or local law when a general law is or can be made applicable. Whether a general law is or can be made applicable shall be a matter for judicial determination."
This case is indistinguishable from the case of Skinner v. Anderson (1967), 38 Ill.2d 455, 231 N.E.2d 588, wherein the court held section 29 of the Limitations Act (Ill. Rev. Stat. 1965, ch. 83, par. 24f) to be unconstitutional as special legislation in violation of the Illinois Constitution. That section purported to immunize architects and contractors from liability upon causes of action that did not accrue within four years after the architects or contractors performed their services. The supreme court noted that other individuals involved in construction of buildings or improvements could be held liable while the contractor or architect would be immune from the suit. The court stated:
"The arbitrary quality of the statute clearly appears when we consider that architects and contractors are not the only persons whose negligence in the construction of a building or other improvement may cause damage to property or injury to persons. If, for example, four years after a building is completed a cornice should fall because the adhesive used was defective, the manufacturer of the adhesive is granted no immunity. And so it is with all others who furnish materials used in constructing the improvement. But if the cornice fell because of defective design or construction for which an architect or contractor was responsible, immunity is granted. It can not be said that the one event is more likely than the other to occur within four years after construction is completed." 38 Ill.2d 455, 460, 231 N.E.2d 588, 591.
This rationale is clearly applicable here. If, for example, a nurse administers a drug, at the direction of a physician, and the patient has an adverse reaction, and files suit, section 21.1 would afford her no protection, while the physician would be immune from suit four years after the occurrence. Clearly, this result is unfair, unjust, and arbitrary. It is special legislation.
The conclusion we reach is in accord with Wright v. Central Du Page Hospital Association (1976), 63 Ill.2d 313, 347 N.E.2d 736. Wright held that a limitation of recovery of $500,000 in medical malpractice cases constituted special legislation and, thus, was unconstitutional. The court in that case noted that a recovery permitted or denied on an arbitrary basis is a special privilege granted in violation of section 13 of article IV of the 1970 Illinois Constitution. This is precisely the situation presented in this case. Granting immunity for hospitals and physicians while denying immunity for other members of the health care profession is clearly a special privilege in violation of the Illinois Constitution. In Anderson v. Wagner (1978), 61 Ill. App.3d 822, 378 N.E.2d 805, another panel of this court reached a contrary conclusion.
The judgment of the circuit court of Champaign County is reversed and this cause is remanded with directions to reinstate the ...