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HINKLE BY HINKLE v. HENDERSON

August 16, 1995

TOMRA HINKLE, A MINOR, BY PATRICIA HINKLE, HER MOTHER AND NEXT FRIEND, AND PATRICIA HINKLE AND THOMAS HINKLE, INDIVIDUALLY, PLAINTIFFS,
v.
WILLIAM HENDERSON, M.D., DEFENDANT.



The opinion of the court was delivered by: McDADE, District Judge.

ORDER

Before the Court is a Report and Recommendation of the United States Magistrate Judge Robert J. Kauffman [Doc. # 20] which recommends that Defendant's, William Henderson's, Motions to Dismiss [Docs. # 4, # 8 and # 16] be denied, and that Plaintiffs, Tomra Hinkle, Patricia Hinkle, and Thomas Hinkle, be ordered to file an affidavit of merit to comply with the Illinois Malpractice Act, § 5/2-622 ("the Act"). Defendant has filed an objection to the Magistrate Judge's recommendation challenging the Magistrate Judge's rejection of his argument that 735 ILCS 5/13-217 does not apply to extend the eight year repose period contained in 5/13-212(b); and if it did apply, Plaintiff's failure to exercise reasonable diligence in effecting service of summons pursuant to Illinois Supreme Court Rule 103(b) prevents the application of 5/13-217.

Defendant has, subsequent to the Magistrate Judge's recommendation, filed a Motion to Strike and Motion to Dismiss for Failure to Comply with 735 ILCS 5/2-622 [Doc. # 29]. This motion seeks to strike the affidavit and certificate of merit filed by Plaintiffs in compliance with the recommendation of the Magistrate Judge, and seeks to dismiss the Complaint for failure to timely file the affidavit and certificate of merit. In response, Plaintiffs have filed a Motion to Strike Defendant's Motion to Strike and Motion to Dismiss [Doc. # 33] on the grounds that they have fully complied with the recommendation. Having made a de novo determination of those portions of the Report and Recommendation to which objections were made as required by 28 U.S.C. § 636(b)(1)(C), the Court rejects the recommendation of the Magistrate Judge. The Court also finds that the remaining motions should be denied as moot.

BACKGROUND

In 1983 and 1984 Plaintiff Patricia Hinkle was an obstetrics patient of Defendant Dr. William Henderson. Dr. Henderson delivered Patricia Hinkle's child, Tomra, on January 23, 1984. Tomra was born blind. Plaintiffs originally filed their medical malpractice complaint against Defendant on January 23, 1992 in the Circuit Court of Cook County, Illinois. Plaintiffs voluntarily dismissed the suit on September 24, 1992. On August 17, 1993 Plaintiffs refiled the present action in federal court in the Southern District of Indiana. On September 22, 1993, pursuant to a joint motion by the parties, this case was transferred to the Central District of Illinois. Plaintiffs' Complaint is in two counts. In Count One, Plaintiff Tomra Hinkle, a minor, by her mother and next friend, seeks compensatory damages for injuries allegedly caused by Defendant. In Count Two, Plaintiffs Patricia and Thomas Hinkle, individually, seek compensatory damages arising from Tomra Hinkle's injuries. Defendant moves to dismiss, arguing this suit was filed beyond the applicable statute of repose.

The Report and Recommendation of the Magistrate Judge found that Plaintiffs' suit was timely filed, and therefore, Defendant's motions to dismiss should be denied. In so finding, the Magistrate Judge held that the period of repose applicable to this controversy, 735 ILCS 5/13-212(b), may be extended by the tolling provision contained in 735 ILCS 5/13-217 and that Plaintiffs' suit was timely filed. In support of his finding, the Magistrate Judge relied upon Limer v. Lyman 241 Ill. App.3d 125, 181 Ill.Dec. 667, 608 N.E.2d 918 (1993), the only Illinois state court opinion which has dealt with the question of the applicability of 5/13-217 to 5/13-212. However, the Limer court discussed the applicability of 5/13-217 to 5/13-212(a) only. The present case involves 5/13-212(b). The Magistrate Judge, however, found the reasoning in Limer readily applicable to the present case and noted that nothing in the legislative history of the Act indicates that 5/13-217 should not apply to the time limitations contained in the Act.

The Magistrate Judge, sua sponte, also found that Plaintiffs failed to attach an affidavit and certificate of merit from a qualified medical expert in order to comply with 735 ILCS 5/2-622 and recommended that Plaintiffs be ordered to submit an affidavit that satisfies 5/2-622. Defendant has filed an objection to the Report and Recommendation of the Magistrate. In his objection, Defendant claims that 5/13-212(b) cannot be extended by 5/13-217, and therefore, Plaintiffs' suit was not timely filed and should be dismissed.

ANALYSIS

The statute of repose applicable to the present case is contained in 735 ILCS 5/13-212(b)*fn1 and it provides, in pertinent part:

    (b) Except as provided in Section 13-215 of this
  Act, no action for damages for injury or death
  against any physician, dentist, registered nurse
  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 8 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 where the person
  entitled to bring the action was, at the time of
  the cause of action accrued, under the age of 18
  years; provided, however, that in no event may the
  cause of action be brought after the person's 22nd
  birthday.

The tolling provision applicable to this case is set forth in 735 ILCS 5/13-217, and it provides, in pertinent part:

  In the actions specified in Article XIII of this
  Act or any other act or contract where the time
  for commencing an action is limited, if judgment
  is entered for the plaintiff but reversed on
  appeal, or if there is a verdict in favor of the
  plaintiff and, upon a motion in arrest of
  judgment, the judgment is entered against the
  plaintiff, or the action is voluntarily dismissed
  by the plaintiff

  . . . then, whether or not the time limitation for
  bringing such action expires during the pendency
  of such action, the plaintiff . . . may commence a
  new action within one year or within the remaining
  period of limitation, whichever is greater . . .
  after the action is voluntarily dismissed by the
  plaintiff. . . .

The question of whether the savings statute contained in 5/13-217 applies to the statute of repose contained in 5/13-212(b) appears to be one of first impression in Illinois.*fn2 However, an Illinois appellate court in Limer v. Lyman, 241 Ill. App.3d 125, 181 Ill.Dec. 667, 608 N.E.2d 918 (1993) did hold that the repose provisions of § 212(a)*fn3 were subject to the tolling provisions of § 217.*fn4 The Limer court appears to have based its holding upon its finding that statutes of repose and statutes of limitation do not differ and, therefore, do not warrant different treatment. The Limer court went on to find that § 212(a) was compatible with § 217, and absent any legislative language to the contrary, the four-year period of repose in § 212(a) was subject to the one year tolling provision of § 217. The Illinois Supreme Court has not spoken on this issue, and this Court must exercise its best judgment to determine what the Supreme Court of Illinois would hold were the question addressed to it.

The Court first finds that the reasoning employed in Limer is not valid and would not be adopted by the Supreme Court of Illinois. The cornerstone upon which the Limer court bases its opinion is the proposition that statutes of limitation and statutes of repose do not differ in any material respect. This Court cannot agree with this proposition. More importantly, ...


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