187 Ill. App. 3d 752, 544 N.E.2d 403, 405 (1st Dist. 1989). Ms. Johnson properly points out that Illinois law does not require adjudication of incompetency. Id.
Johnson, 766 F. Supp. at 655.
In Alber v. Illinois Dept. of Mental Health, 786 F. Supp. 1340 (N.D. Ill. 1992), the court was faced with deciding the requirements of pleading a "legal disability" under P 13-211. The court held, "No prior adjudication of incompetence is required to trigger that exception [the tolling rule] to the statute of limitations. It is enough that the complaint allege facts sufficient to prove legal disability." Alber, 786 F. Supp. at 1359 (citing Estate of Riha v. Christ Hosp., 187 Ill. App. 3d 752, 755-56, 544 N.E.2d 403, 405 (1st Dist. 1989)). See also Reichert v. Ford Motor Co., 768 F. Supp. 262, 263 (S.D. Ill. 1991) (where the court found that the plaintiff had sufficiently alleged that he was under a legal disability pursuant to P 13-211, without any formal adjudication).
Accordingly, this court holds that in Illinois,
plaintiff need not formally be adjudicated "legally disabled" to effectively toll the statute of limitations under P 13-212. Turning to the case at bar, plaintiff has alleged that he has been severely and permanently brain damaged from birth and has been "continuously disabled both mentally and physically and totally without understanding or capacity to make or communicate decisions regarding his person, estate or financial affairs." Amended Complaint, Count III at P 5. This court holds that plaintiff has sufficiently alleged that he was "legally disabled" within the meaning of P 13-212, thereby tolling the statute of limitations.
Defendant additionally argues that since the term "legal disability" is not defined in P 13-212, the court must look to other Illinois statutes where the term is defined and apply the same meaning. In doing so, defendant points to the Mental Health and Developmental Disability Code (Mental Health Code),
which states, "nor shall such person be held legally disabled except as determined by a court." Defendant urges this court to apply this definition of "legally disabled" to actions involving P 13-212, an argument not made in the Passmore and Riha decisions.
Defendant's argument is unpersuasive. The Mental Health Code involves determining when to give a person mental health and disability services. To be eligible, a court must find the person disabled. To the contrary, P 13-212 confers no such benefit; rather, it deals with an individual's right to maintain and preserve a cause of action. Therefore, that the Illinois legislature requires adjudication of legal disability under the Mental Health Code in no way suggests the same meaning is to be used when dealing with a person's substantive right to maintain a cause of action. As the court in Passmore pointed out, the defendant's definition of "legally disabled" would render the protection afforded in P 13-212 meaningless. The plaintiff's right to seek redress through the courts cannot be contingent upon his guardian or next-of-friend going through the necessary steps to adjudicate him legally disabled.
This court also rejects defendant's argument that because words are to be used in their ordinary and popular meaning, and whereas "legal disability" is defined to be a disability imposed by law, a court must adjudicate the person disabled in order to qualify. Defendant overlooks that a person can plead allegations which render him legally disabled and a court can make this determination without any prior adjudication. Such a determination would still be "by law."
Defendant also points to the several statutes of limitations that have been enacted by the Illinois legislature in response to the proliferation of medical malpractice lawsuits. Defendant argues that not requiring an adjudication of this status within the eight-year period contravenes the public policy of Illinois of limiting medical malpractice suits. Defendant contends that such an interpretation of P 13-212 will subject the medical profession to the risk of law suits until the death of the patient. This may be so. However, an individual should not be deprived of his substantive right to sue because his guardian did not have him adjudicated "legally disabled." As the plain language of P 13-212 states, the statute of limitations does not run until the disability is removed.
For the foregoing reasons, defendant's motion to dismiss is denied.
PHILIP G. REINHARD, JUDGE
UNITED STATES DISTRICT COURT