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Clark v. St. John's Hospital

OPINION FILED NOVEMBER 13, 1984.

LONNIE CLARK, PLAINTIFF-APPELLANT,

v.

ST. JOHN'S HOSPITAL OF THE HOSPITAL SISTERS OF THE THIRD ORDER OF ST. FRANCIS ET AL., DEFENDANTS-APPELLEES.



Appeal from the Circuit Court of Sangamon County; the Hon. Richard E. Mann, Judge, presiding.

PRESIDING JUSTICE MILLS DELIVERED THE OPINION OF THE COURT:

Rehearing denied December 28, 1984.

Medical malpractice.

But specifically: how to apply the statute of limitations.

We agree with the trial court's interpretation.

We affirm.

Lonnie Clark filed a two-count complaint against St. John's Hospital and Dr. Anthony Hawe, alleging that they negligently failed to remove a needle inserted into his body during aortic surgery on August 24, 1973.

Plaintiff discovered the needle in his body in June 1983 and filed his complaint on August 19, 1983.

Defendants filed motions to dismiss the complaint for the reason that it was filed more than four years after the alleged negligent act and, therefore, the action was barred under section 13-212 of the Code of Civil Procedure (Ill. Rev. Stat. 1981, ch. 110, par. 13-212).

The trial court allowed the motions and dismissed the complaint with prejudice.

The substance of section 13-212 was originally enacted as section 21.1 of the Limitations Act (Ill. Rev. Stat. 1977, ch. 83, par. 22.1), which became effective on September 19, 1976. Section 13-212 provides in part:

"No action for damages for injury * * * against any physician or hospital * * * 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 * * * but in no event shall such action be brought more than 4 years after the date on which occurred the act or omission * * *." Ill. Rev Stat. 1981, ch. 110, par. 13-212.

Plaintiff filed his complaint within two years after he discovered his injury. The complaint, however, was filed more than four years after the alleged negligent act. If section 13-212 is applied retroactively to this case, the action would be barred because it was filed more than four years after the alleged negligent act. If the section is applied prospectively, plaintiff's complaint would have been timely under the prior statute of limitations, which allowed 10 years to commence an action. See Ill. Rev. Stat. 1973, ch. 83, par. 22.1.

The question of the retroactive application of section 21.1 of the Limitations Act was addressed by the supreme court in Moore v. Jackson Park Hospital (1983), 95 Ill.2d 223, 447 N.E.2d 408. The court applied the statute neither strictly retroactively nor strictly ...


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