Appeal from the United States District Court for the Central District of Illinois, Peoria Division. No. 93 C 1438--Joe B. McDade, Judge.
Before CUMMINGS, MANION and EVANS, Circuit Judges.
This diversity medical malpractice case raises an interesting question of Illinois law. Illinois has adopted a special statute of limitations for medical malpractice actions that contains a standard limitation period in which an action must be brought after a plaintiff discovers his injury. The statute also establishes an outside time limit in which an action must be brought, unaffected by a plaintiff's knowledge of his injuries, known as a statute of repose. The question presented is whether the Illinois savings statute, which gives plaintiffs one additional year to refile a case when the first case is dismissed on certain procedural grounds, applies to the medical malpractice statute of repose. Only one Illinois appellate court has addressed the issue, concluding that the savings statute did apply. The district court in this case, reasoning that statutes of repose are fundamentally different from statutes of limitations, disagreed. We now reverse.
Tomra Hinkle was born prematurely on January 23, 1984. As a result, she suffers from retinopathy of prematurity and is blind. Plaintiffs allege that the medical malpractice of William Henderson, M.D., who provided Tomra's mother with obstetrical and prenatal care in 1983 and early 1984, caused Tomra's injury. On January 23, 1992, plaintiffs filed a complaint in the Circuit Court of Cook County, Illinois, within eight years of the premature birth. No service was effected or attempted on Henderson or any of the other named defendants; rather, after eight months in the circuit court, plaintiffs moved for a voluntary dismissal under 735 ILCS 5/2-1009. The court granted the motion and dismissed the case without prejudice on September 24, 1992.
On August 17, 1993, within one year of the voluntary dismissal but outside of the applicable limitations period, plaintiffs filed this case in the district court and effected service on Henderson within eight days. Plaintiffs' ability to refile the suit outside of the limitations period is based on the Illinois savings statute, 735 ILCS 5/13-217, which gives plaintiffs one year in which to bring a new suit following a voluntary dismissal. Henderson moved to dismiss the case as untimely filed on two alternative theories. First, he argued that the Illinois savings statute was inapplicable to the medical malpractice limitations statute. Second, he argued that the savings statute did not give plaintiffs an extra year to file because they failed to comply with Illinois Supreme Court Rule 103(b), which requires a plaintiff to exercise reasonable diligence in obtaining service. The district court dismissed plaintiffs' complaint based on defendant's first theory and therefore did not address the second. See Hinkle ex rel. Hinkle v. Henderson, 896 F. Supp. 190 (C.D. Ill. 1995). Plaintiffs appeal the dismissal.
Illinois has a statute of repose governing medical malpractice cases such as this. The statute provides that an action must be brought within eight years of the alleged acts of negligence:
Except as provided in Section 13-215 of this Act [fraudulent concealment], 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 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. 735 ILCS 5/13-212(b).
Based on this statute alone, it is clear that plaintiffs' district court action, brought more than nine years after Tomra's premature birth, was timebarred.
However, Illinois has also adopted a savings statute, which plaintiffs argue saved their cause of action by virtue of the voluntary ...