Appeal from the Circuit Court of the 14th Judicial Circuit, Henry County, Illinois, No. 93 L 24. Honorable Jay Hanson, Judge, Presiding.
Released for Publication May 30, 1997.
Present - Honorable Michael P. Mccuskey, Justice, Honorable Kent Slater, Justice, Honorable Peg Breslin, Justice. Justice Slater delivered the opinion of the court. McCUSKEY, J., concurs. Justice Breslin specially concurring.
The opinion of the court was delivered by: Slater
The Honorable Justice SLATER delivered the opinion of the court:
In this case we must determine whether the two-year statute of limitations for bringing a medical malpractice action (735 ILCS 5/13-212(a) (West 1994)) applies when the plaintiff's cause of action accrued while he was a minor. We find that it does, but that the limitations period does not begin to run until the plaintiff reaches the age of 18.
Plaintiff Paul Franklin was injured in an automobile accident and was treated by the defendant, Dr. Richard Cernovich, from June 26, 1988, through July 15, 1988. Plaintiff was 16 years old at that time. On July 16, 1988, plaintiff went to St. Francis Hospital where an x-ray revealed that plaintiff had suffered an undiagnosed hip fracture. Plaintiff filed suit for medical malpractice on March 17, 1993, alleging, inter alia, that defendant was negligent in failing to timely diagnose the hip fracture. Defendant filed a motion for summary judgment on the basis that plaintiff failed to sue within two years of reaching the age of majority. The trial court granted the motion, ruling that plaintiff had two years to file suit from the time he discovered the injury on July 16, 1988. The court also ruled that the eight-year limitations period referred to in subsection (b) of section 13-212 of the Code of Civil Procedure (the Code) (735 ILCS 5/13-212(b) (West 1994)) was a statute of repose rather than a statute of limitations and therefore it did not apply.
On appeal, plaintiff contends that the trial court erred in applying the two year statute of limitations contained in subsection (a) of section 13-212 of the Code. Plaintiff maintains that subsection (b) is both a statute of limitations and a statute of repose, and it exclusively applies to causes of action which occur and accrue during minority.
"Physician or hospital. (a) Except as provided in Section 13-215 of this Act, no action for damages for injury or death against any physician *** 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.
(b) Except as provided in Section 13-215 of this Act, no action for damages for injury or death against any physician *** shall be brought more than 8 years after the date on which occurred that 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. ***
(c) If the person entitled to bring an action described in this Section is, at the time the cause of action accrued, under a legal disability other than being under the age of 18 years, then the period of limitations does not begin to run ...