APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FIRST DIVISION
544 N.E.2d 403, 187 Ill. App. 3d 752, 135 Ill. Dec. 907 1989.IL.1242
Appeal from the Circuit Court of Cook County; the Hon. Thomas R. Rakowski, Judge, presiding.
JUSTICE BUCKLEY delivered the opinion of the court. MANNING, P.J., and O'CONNOR, J., concur.
DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE BUCKLEY
This appeal arises from the circuit court's dismissal of two complaints filed by Mary Riha (plaintiff), guardian of the estate and person of Virginia Riha, alleging medical malpractice against Christ Hospital and Dr. Melvin Wichter and products liability against Ayerst Laboratories (defendants). The circuit court found the actions were barred by the statute of limitations. The applicable statutory provisions are the tolling provision in section 13-211 of the Civil Practice Act (the Act) (Ill. Rev. Stat. 1987, ch. 110, par. 13-211) and the refiling provision in section 13-217 of the Act (Ill. Rev. Stat. 1987, ch. 110, par. 13-217). Section 13-211 tolls the limitation period for actions specified in sections 13-201 through 13-212 for persons "under legal disability" "at the time the cause of action accrued" until two years after the disability is removed. Section 13-217 limits the refiling period after an action is voluntarily dismissed to "within one year or within the remaining period of limitation, whichever is greater" (Ill. Rev. Stat. 1987, ch. 110, par. 13-217).
On August 20, 1981, Virginia Riha filed a complaint in her individual capacity in the circuit court alleging medical malpractice against Christ Hospital and 36 physicians and alleging product liability against Ayerst. She moved to voluntarily dismiss all defendants except Dr. J. Meiszner, M.D., on July 6, 1982.
On May 22, 1985, the probate court entered an order finding Virginia Riha to be a "disabled person" and appointing plaintiff guardian of her estate and person. On August 13, 1985, plaintiff, as guardian of the estate and person of Virginia Riha, a disabled person, filed an amended complaint retaining Dr. J. Meiszner as a defendant and renaming as defendants Christ Hospital, Ayerst, and Wichter.
Christ Hospital and Ayerst moved to dismiss the amended complaint on the basis that it was time barred. Before their motions were heard, plaintiff filed another lawsuit on behalf of Virginia Riha on June 9, 1986, naming as defendants Christ Hospital, Donald Walker, R.N., Wichter and Ayerst. Christ Hospital and Ayerst also moved to dismiss that case because of the pendency of another lawsuit involving the same issues and parties. The circuit court sustained Christ Hospital's and Ayerst's motions to dismiss on August 13, 1986, as well as Wichter's motion to dismiss on November 12, 1986.
On appeal, plaintiff contends that the circuit court erred in holding her actions were time barred by section 13 -- 217's refiling provisions, arguing that she timely filed the action "within the remaining period of limitation" under that provision. To sustain her position, plaintiff asserts that the limitations period for filing her original action was tolled by section 13 -- 211 of the Act since Virginia Riha was legally disabled at the time the cause of action accrued and her disability had not been removed at the time she refiled the action.
It is clear from the record that Virginia Riha was not legally adjudicated an incompetent at the time her cause of action accrued. Nonetheless, our research has revealed, and defendants have conceded in oral argument, that a formal legal adjudication of disability is not required to show that a person was "under a legal disability" pursuant to section 13 -- 211.
In an amendment effective July 1, 1982, the legislature changed the language of the tolling provision in issue here from persons who are "incompetent" to persons "under legal disability." (Pub. Act. 92-280, eff. July 1, 1982 (amending Ill. Rev. Stat. 1979, ch. 83, par. 22).) Under case law involving the previous statute, claimants were not required to show a formal adjudication of incompetency to satisfy the statutory language, but could present medical evidence to establish their incompetency. See Peach v. Peach (1966), 73 Ill. App. 2d 72, 218 N.E.2d 504.
Our research discloses only two appellate court cases involving an interpretation of this statutory amendment or a similar statutory amendment. In the first case, relied on by plaintiff, Mazikoske v. Firestone Tire & Rubber Co. (1986), 149 Ill. App. 3d 166, 500 N.E.2d 622, the disputed issue was whether the appointment of a guardian six months after the cause of action accrued removed the legal disability under section 13 -- 211. After answering in the negative, the court further found section 13 -- 211's provisions were satisfied by evidence of a legal adjudication six months after the accident and testimony from a licensed clinical psychologist, who examined the claimant 10 years after the accident, that the accident rendered the victim incompetent to manage his estate and person and such condition was permanent.
The appellate court in the second case, Passmore v. Walther Memorial Hospital (1987), 152 Ill. App. 3d 554, 504 N.E.2d 778, explicitly rejected the argument that the claimant had to be legally adjudicated disabled under identical language and statutory amendment under section 13 -- 212, the tolling provision for bringing actions for injuries or death against physicians and hospitals. The appellate court reversed the circuit court's finding that ...