No. 56028. Appeal from the Appellate Court for the First
District; heard in that court on appeal from the Circuit Court of
Cook County, the Hon. Myron T. Gomberg, Judge, presiding.
No. 56037. Appeal from the Appellate Court for the First
District; heard in that court on appeals from the Circuit Court
of Cook County, the Hons. Myron T. Gomberg and Arthur A.
Sullivan, Jr., Judges, presiding.
JUSTICE CLARK DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 8, 1983.
Lord, Bissell & Brook, of Chicago (Harold L. Jacobson, Williams P. Dorr, and Hugh C. Griffin, of counsel), for appellant.
Berger & Herman, Ltd., Alan D. Katz and David S. Pochis, Ltd., and Joel H. Fenchel, all of Chicago (Marvin L. Herman and Alan D. Katz, of counsel), for appellees.
McLaughlin, Kinser & Bryant, of Chicago (Harry L. Kinser and Kenneth C. Robbins, of counsel), for amicus curiae Illinois Hospital Association.
Richard M. Daley, State's Attorney, of Chicago, and Epton, Mullin, Segal & Druth, Ltd., Special Assistant State's Attorneys (Saul A. Epton, Thomas E. Kluczynski, and Jeffrey Singer, of counsel), for amicus curiae County of Cook.
These consolidated cases involve the validity of section 21.1 of the Limitations Act (Ill. Rev. Stat. 1977, ch. 83, par. 22.1). Section 21.1, on the date the complaints in these cases were filed, provided as follows:
"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.
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." (Emphasis added.) Ill. Rev. Stat. 1977, ch. 83, par. 22.1.
In all three of the consolidated cases the respective panel of the appellate court reversed the Cook County circuit court's dismissals of the causes of action based upon the rule in Illinois that an amendment shortening a statute of limitations will not be retroactively applied so as to terminate a cause of action, unless the claimant has a reasonable amount of time after the amendment's effective date in which to file his or her claim. (Moore v. Jackson Park Hospital (1981), 101 Ill. App.3d 1009; Isaacs v. Michael Reese Hospital & Medical Center (1981), 101 Ill. App.3d 876.) In all three cases, application of the amendment to the statute of limitations would instantaneously bar the plaintiffs' claims. We granted the petitions for leave to appeal in both the Moore case and in the Isaacs-Fenchel consolidated case and consolidated all three for hearing and opinion in this court.
The relevant facts in the Moore case are as follows:
On May 24, 1972, defendant Dr. Enrique Steider performed surgery on plaintiff, Luella Moore, at defendant Jackson Park Hospital. The plaintiff alleges that a needle was negligently left in her body during this surgery. On March 17, 1978, six years after the plaintiff's surgery, plaintiff Moore had an X ray taken which showed the presence of a needle in her body. Plaintiff alleges that she did not discover the presence of the needle until that date. Plaintiff filed her complaint on October 4, 1978. The circuit court dismissed the action with prejudice on November 19, 1980, based upon this court's holding in Anderson v. Wagner (1979), 79 Ill.2d 295, appeal dismissed sub nom. Woodward v. Burham City Hospital (1980), 449 U.S. 807, 66 L.Ed.2d 11, 101 S.Ct. 54.
The relevant facts in the Isaacs case are as follows:
On May 16, 1978, Richard Isaacs filed a suit against defendants, Dr. Joseph K. Calvin and Michael Reese Hospital and Medical Center. The complaint alleged that plaintiff Isaacs had received X-ray treatments for inflamed tonsils in 1940, when he was four years old. The complaint further alleged that as a result of these treatments, he developed growths on his thyroid gland which had to be surgically removed. Plaintiff alleged that the first time he knew of his condition was in May of 1977 when defendant Michael Reese Hospital notified him of the possible dangers resulting from these X-ray treatments. Isaacs underwent corrective surgery shortly after the notice from the hospital.
The facts in the Fenchel case are similar to those in Isaacs and are as follows:
On January 29, 1980, plaintiff Fenchel filed a malpractice action against defendant Michael Reese Hospital. From 1941 to 1943 plaintiff Fenchel underwent X-ray treatment for tonsillitis. Plaintiff alleges that, as a result of these treatments, tumors developed on her thyroid gland which had to be surgically removed. The complaint ...