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Anderson v. Wagner

OPINION FILED OCTOBER 2, 1979.

THOMAS ANDERSON ET AL., APPELLANTS,

v.

WILLIAM WAGNER, APPELLEE. — CAROL C. WOODWARD, INDIV. AND AS ADM'R, APPELLEE,

v.

BURNHAM CITY HOSPITAL ET AL., APPELLANTS.



No. 50880. — Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Macon County, the Hon. A.G. Webber III, presiding.

Nos. 50980, 50981. — Appeal from the Appellate Court for the Fourth District; heard in that court on appeal from the Circuit Court of Champaign County, the Hon. Creed D. Tucker, Judge, presiding.

MR. JUSTICE RYAN DELIVERED THE OPINION OF THE COURT:

Rehearing denied March 28, 1980.

Vance I. Kepley, of Reno, O'Byrne & Kepley, of Champaign, for appellant Burnham City Hospital.

Phillips, Phebus, Tummelson & Bryan, of Urbana (Hurshal C. Tummelson and Birch E. Morgan, of counsel), for appellant George Green.

Leonard M. Ring & Associates, of Chicago (Leonard M. Ring and Richard L. Wattling, of counsel), for appellee Carol C. Woodward.

Harry L. Kinser and Kenneth C. Robins, of Chicago (McLaughlin, Kinser & Bryant, of counsel), for amicus curiae Illinois Hospital Association.

These consolidated cases involve the validity of section 21.1 of the Limitations Act (Ill. Rev. Stat. 1977, ch. 83, par. 22.1), which provides for a special limitation period for medical malpractice actions against physicians and hospitals. One panel of the Fourth District Appellate Court in cause No. 50880, Anderson v. Wagner, held section 21.1 to be constitutional, with one justice dissenting. (61 Ill. App.3d 822.) Another panel of the appellate court for the same district in cause Nos. 50980 and 50981, Woodward v. Burnham City Hospital, held section 21.1 unconstitutional, with one justice dissenting. (60 Ill. App.3d 285.) We granted petitions for leave to appeal in both cases and consolidated them for hearing and opinion in this court.

On the date the complaints in these consolidated cases were filed, section 21.1 of the Limitations Act provided:

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

Plaintiffs Thomas and Marilyn Anderson filed a complaint in the circuit court of Macon County against defendant William Wagner, M.D., on June 23, 1977, alleging that the defendant had failed to inform the plaintiffs that Marilyn had tested positive for rubella in a first trimester pregnancy test given to her late in 1972. Plaintiffs also allege that defendant failed to inform them of the likelihood of mental retardation in a child born under these circumstances. On May 20, 1973, a child, who later proved to be mentally retarded, was born to plaintiffs, who allege they did not discover the defendant's malpractice until January 26, 1976. The circuit court of Macon County dismissed the complaint on motion of the defendant, holding that section 21.1 barred the action. In an amended complaint filed subsequent to the dismissal, plaintiffs allege that the defendant had fraudulently concealed their cause of action from them, which concealment, they allege, tolled the running of the statute of limitations. The trial court held that the statute was not tolled and dismissed the amended complaint. As noted above, the appellate court, with one justice dissenting, affirmed.

Plaintiffs Charles and Carol Woodward filed suit against defendants Burnham City Hospital and two doctors for malpractice on December 30, 1976, alleging an erroneous diagnosis of tissue taken from plaintiff, Charles Woodward, on November 27, 1965. As a result of the erroneous diagnosis, massive steriod treatments were administered which, it is alleged, caused Charles Woodward to develop a condition known as steroid myopathy which necessitated the amputation of both legs and caused cataracts. Charles died after the complaint was filed and an amended complaint was filed by Carol Woodward as administrator of the decedent's estate and individually. It is alleged that the malpractice was first discovered in February 1976, when a sample from the preserved tissue taken in the 1965 biopsy was tested by another facility, which test demonstrated that the earlier diagnosis had been incorrect. The circuit court of Champaign County, in response to defendants' motion, dismissed the amended complaint, holding that the actions were barred by section 21.1 of the Limitations Act. As stated earlier, the appellate court, with one judge dissenting, reversed and held section 21.1 unconstitutional.

The plaintiffs contend that section 21.1 is unconstitutional for several reasons. First they say it violates the due process and equal protection clauses of both the Federal and State constitutions. The plaintiffs' primary contention is, however, that section 21.1 violates article IV, section 13, of the Illinois Constitution of 1970 in that it is special legislation because it (1) sets medical malpractice apart from all other professional malpractice and (2) confers a special privilege upon only two classes of medical health providers, physicians and hospitals. Before considering these arguments, a survey of recent legislative enactments and judicial decisions relating to medical malpractice will be helpful.

I

It is generally agreed that in the early 1970's what has been termed a medical malpractice insurance crisis existed in most jurisdictions in this country. The crisis resulted from the increasing reluctance of insurance companies to write medical malpractice insurance policies and the dramatic rise in premiums demanded by those companies which continued to issue policies. The difficulty in obtaining insurance at reasonable rates forced many health-care providers to curtail or cease to render their services. The legislative response to this crisis sought to reduce the cost of medical malpractice insurance and to insure its continued availability to the providers of health care. By October 1975, 39 States had commissioned studies of the medical malpractice problem and 22 States had revised civil practice laws and rules in an attempt to remedy the problem. Redish, Legislative Response to the Medical Malpractice Insurance Crisis: Constitutional Implications, 55 Tex. L. Rev. 759, 761 n. 14 (1977); see generally American Bar Association, Report of the Commission on Medical Professional Liability (1977); United States Department of Health, Education and Welfare Publication No. (OS) 73-88, Medical Malpractice: Report of the Secretary's Commission on Medical Malpractice (1973); Illinois Insurance Laws Study Commission, Final Report to the Governor and 79th General Assembly 47-60 (1975) (medical malpractice).

Legislative efforts dealing with the malpractice crisis included a variety of changes in tort law principles. In many instances direct limits were placed on the amount of recovery. The use of screening panels and arbitration was broadly recommended and followed, and certain procedural changes such as altering the statute of limitations were made. (See Medical Malpractice: The Duke L.J. Symp. 241-92 (1977); Comment, Recent Medical Malpractice Legislation — A First Checkup, 50 Tul. L. Rev. 655 (1976).) The Illinois General Assembly, in its effort to meet the crisis, adopted "An Act to revise the law in relation to medical malpractice" (Pub. Act 79-960, approved September 12, 1975, effective November 11, 1975). This act, in addition to amending section 21.1 of the Limitations Act, also created a medical review panel (Ill. Rev. Stat. 1975, ch. 110, par. 58.2 through 58.10) and limited the maximum amount of recovery in medical malpractice actions (Ill. Rev. Stat. 1975, ch. 70, par. 101).

This court, in Wright v. Central Du Page Hospital Association (1976), 63 Ill.2d 313, was one of the first State courts> of final review to pass on the validity of a legislature's response to the malpractice crisis. In Wright this court held invalid the limitation on the amount of recovery and the provision relating to a medical review panel. That part of the new act amending the Limitations Act was not involved in that case.

It appears that few State courts> of final review have followed the holding of Wright, though many courts> and writers have discussed the case. (Arneson v. Olson (N.D. 1978), 270 N.W.2d 125 (limitation on amount of recovery held invalid) (State ex rel. Cardinal Glennon Memorial Hospital for Children v. Gaertner (Mo. 1979), 583 S.W.2d 107) (provision for reviewing panel held invalid).) Two lower courts> in Ohio have held portions of the Ohio statute invalid. (Simon v. St. Elizabeth Medical Center (Ohio C.P. Montgomery County 1976), 3 Ohio Op.3d 164, 355 N.E.2d 903 (limitation on amount of recovery held invalid); Grayley v. Satayatham (Ohio C.P. Cuyahoga County 1976), 74 Ohio Op.2d 316, 343 N.E.2d 832 (limitation on amount of recovery and provision concerning a panel held invalid).) The Ohio Supreme Court, however, in Amer v. Akron City Hospital (Ohio 1976), 47 Ohio St.2d 85, 351 N.E.2d 479, in a case not directly involving the validity of the shortened medical malpractice limitation period, stated that the enactment of such limitations was within the prerogative of the legislature. (Amer v. Akron City Hospital (Ohio 1976), 47 Ohio St.2d 85, 91 n. 4, 351 N.E.2d 479, 484 n. 4.) Also, some trial courts> in Tennessee have not applied the statute of that State providing for screening panels, finding that provision to be in violation of the Tennessee Constitution. (See Comment, Constitutional Challenges to Medical Malpractice Review Boards, 46 Tenn. L. Rev. 607, 632-44 (1979).) Recently the Florida Supreme Court, in two cases not yet reported, held unconstitutional the provisions of that State's malpractice statute which provided for screening panels. (6 Nat'l L.J. 3 (Mar. 17, 1980).) In addition to these cases holding medical ...


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