No. 60027. Appeal from the Appellate Court for the First
District; heard in that court on appeal from the Circuit Court of
Cook County, the Hon. Brian B. Duff, Judge, presiding.
No. 60038. 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.
JUSTICE MILLER DELIVERED THE OPINION OF THE COURT:
Rehearing denied April 1, 1986.
Hinshaw, Culbertson, Moelmann, Hoban & Fuller, of Chicago (D. Kendall Griffith, Paul C. Estes and Joshua G. Vincent, of counsel), for appellant.
Alan D. Katz & David S. Pochis, Ltd., of Chicago (Alan D. Katz and Edward S. Reiff, of counsel), for appellee.
The common issue in these consolidated appeals is whether the plaintiffs' actions arising from medical treatment are barred by the four-year repose period prescribed by statute for bringing such actions. Under that provision, no action concerning medical treatment may be brought against a hospital more than four years after the time of the occurrence on which the cause of action is based. (See Ill. Rev. Stat. 1983, ch. 110, par. 13-212.) The four-year repose provision went into effect on September 19, 1976; in both cases here the treatment occurred more than four years before the effective date of the new period and the actions were filed more than four years after that date.
The history of each case may be stated briefly. In cause No. 60027 the plaintiff, Dominic Mega, filed his complaint in the circuit court of Cook County on September 24, 1982. The action arose from a series of X rays administered to the plaintiff at Holy Cross Hospital for several months in 1949 for treatment of an enlarged thymus gland. The plaintiff alleged that as a result of the X-ray treatment tumors developed on his thymus gland, a condition that he discovered in March 1981. The defendant moved to dismiss the complaint as barred by the four-year period of repose, and the trial judge granted the motion. The appellate court reversed that judgment (122 Ill. App.3d 720), and we allowed the defendant's petition for leave to appeal (94 Ill.2d R. 315(a)).
In cause No. 60038 the plaintiff, Michael M. Sieman, filed his action in the circuit court of Cook County on December 8, 1981. The plaintiff alleged that from 1947 through 1954 he underwent a series of X-ray treatments for tonsillitis at Holy Cross Hospital and that as a result of that treatment tumors developed on his thyroid gland, a condition that he discovered on January 8, 1980. Although Sieman's condition was discovered less than four years after the effective date of the statutory amendment imposing the four-year repose period, the action was filed more than four years after the effective date, and therefore the defendant moved to dismiss the action as untimely; the trial judge granted the motion. The appellate court reversed that judgment (122 Ill. App.3d 1159 (order under Supreme Court Rule 23 (87 Ill.2d R. 23))), and we allowed the defendant's petition for leave to appeal (94 Ill.2d R. 315(a)). In this court the two appeals were consolidated on motion of the defendant.
When plaintiff Sieman brought his action in December 1981, section 21.1 of the Limitations Act (Ill. Rev. Stat. 1979, ch. 83, par. 22.1) provided in pertinent part:
"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." (Emphasis added.)
By the time plaintiff Mega commenced his action in September 1982, section 21.1 had been recodified as section 13-212 of the Code of Civil Procedure and also had been amended (Ill. Rev. Stat., 1982 Supp., ch. 110, par. 13-212), but the two provisions were identical in all respects relevant here.
Under the general rule, in the wake of a statute shortening a limitations period or providing one where one did not exist previously, a plaintiff whose cause of action arose before that date will be allowed a reasonable period of time in which to bring his action. (Hupp v. Gray (1978), 73 Ill.2d 78; Meegan v. Village of Tinley Park (1972), 52 Ill.2d 354; Trustees of Schools v. Batdorf (1955), 6 Ill.2d 486.) Therefore, if under the new statute a reasonable time remains, the new period can be applied, without more; if a reasonable time would not remain, then one will be allowed. In both cases here the appellate court believed that the reasonable period to which the plaintiffs were entitled could exceed the length of the repose period itself, four years, and the causes were remanded for a determination of whether the actions were timely. Notably, in two other cases involving the four-year repose provision, the appellate court has reached the opposite conclusion. (See Clark v. St. John's Hospital (1984), 128 Ill. App.3d 989; Roberson v. Taylor (1983), 115 Ill. App.3d 587.) In Clark and Roberson the appellate court held that actions based on acts occurring before the four-year repose provision took effect but commenced more than four years after that date must be considered untimely, and the same result is urged here by the defendant. We agree.
In Moore v. Jackson Park Hospital (1983), 95 Ill.2d 223, this court considered the application of the four-year repose provision to causes of actions based on acts occurring before the provision went into effect. Moore was a consolidation of three separate actions. In each case suit was commenced within two years of the alleged discovery of the cause of action and within the four-year period of time following September 19, 1976, the effective date of the amendment providing the four-year repose period. The causes of action were based on acts that occurred more than four years before that date, however, and therefore the amendment left no time in which the plaintiffs could commence their actions. In each case the circuit court dismissed the actions as automatically barred by the repose provision. Consistent with the general rule regarding the effect of shortened limitations periods, the court in Moore held that the 1976 provision would not operate as an instantaneous bar and that the plaintiffs were entitled to a reasonable period of time, following the effective date of the provision, in which to bring their actions. Accordingly, the causes there were remanded for a determination of whether the actions had been filed within a reasonable period of time.
As in Moore, the acts involved here occurred more than four years before the effective date of the 1976 amendment, which left no time in which to file the actions; like the plaintiffs in Moore, then, the plaintiffs here were entitled to a reasonable period of time following that date in which to bring their actions. Unlike the plaintiffs in Moore, however, the plaintiffs here did not file their actions until more than four years after the four-year repose provision took effect. We conclude that the reasonable time to which the plaintiffs here were entitled did not extend beyond that provided by the new repose period, computed from its effective date, September 19, 1976. Therefore, the actions must be considered untimely. (See Orlicki v. McCarthy (1954), 4 Ill.2d 342.) To allow, as a reasonable time for bringing suit, a period greater than the repose period itself would defeat the purpose of the statute. For the plaintiffs here, then, the reasonable period could have ended no later than four years following the effective date of the 1976 amendment. Because the plaintiffs' actions were filed after that time, they must be considered barred.
We realize that our holding here means that plaintiff Mega's action was barred before he learned of his injury. That is the effect of the four-year period of repose provided by the 1976 amendment, however, and it will affect acts occurring after September 19, 1976, in the same way that it operates here. The period of repose gives effect to a policy different from that advanced by a period of limitations; it is intended to terminate the possibility of liability after a defined period of time, regardless of a potential plaintiff's lack of knowledge of his cause of action. (See Gates Rubber Co. v. USM Corp. (7th Cir. 1975), 508 F.2d 603, 611-12 (discussing the separate purposes advanced by "bifurcated" statutes of limitations).) Plaintiff Sieman raises several constitutional objections to this operation of the statute, though his own injury was discovered within four years of the effective date of the 1976 amendment. Plaintiff Mega has been affected in that way, however, and though he has not raised those objections, perhaps because of this court's decisions in Moore v. Jackson Park Hospital (1983), 95 Ill.2d 223, and Anderson v. Wagner (1979), 79 Ill.2d 295, we shall consider the problem here. Sieman argues that barring a cause of action before it is discovered violates principles of due process as well as the provisions in the Illinois Constitution ensuring the existence of a remedy for every wrong and prohibiting the impairment of contracts (Ill. Const. 1970, art. I, secs. 2, 12, 16; U.S. Const., amend. XIV).
In Anderson this court reviewed, for the first time, the four-year repose provision and in a comprehensive opinion held that it was constitutional. In reaching that conclusion, the court in Anderson recognized that the repose provision could have the effect of barring a cause of action before its discovery. (79 Ill.2d 295, 311-12.) The constitutionality of the provision seemingly was reaffirmed in Moore. Without reexamining the reasoning of those decisions, we shall address one suggested constitutional basis for the discovery rule. We note that a variety of repose provisions have been found to be invalid under other States' constitutions. (See, e.g., Kenyon v. Hammer (1984), 142 Ariz. 69, 688 P.2d 961; Daugaard v. Baltic ...