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12/02/97 LINNETTE CONCEPCION TOSADO v. A. MILLER

December 2, 1997

LINNETTE CONCEPCION TOSADO, PLAINTIFF-APPELLEE,
v.
A. MILLER, R. KOPOLOVIC, M. COHEN, R. BARNETT, AND T. PADILLA, DEFENDANTS-APPELLANTS. GAIL PHIPPS, INDIV. AND AS SPECIAL ADM. OF THE ESTATE OF FUTON PHIPPS, A MINOR, DECEASED, PLAINTIFF-APPELLEE, V. LINCOLN MEDICAL CENTER, LTD., K. NAIDOO, AND COUNTY OF COOK, D/B/A COOK COUNTY HOSPITAL, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court of Cook County. Honorable Loretta C. Douglas, Judge Presiding. Appeal from the Circuit Court of Cook County. Honorable Phillip L. Bronstein, Judge Presiding.

Released for Publication January 22, 1998.

The Honorable Justice Rakowski delivered the opinion of the court. Frossard, J., concurs. Tully, J., dissents.

The opinion of the court was delivered by: Rakowski

The Honorable Justice RAKOWSKI delivered the opinion of the court:

Plaintiffs filed separate complaints against Cook County Hospital and its doctors for medical malpractice. Defendants moved to dismiss the complaints on the basis that the complaints were filed after the expiration of the one-year limitations period of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/8-101 (West 1996)). Following the Fifth District Appellate Court's decision in Cleaver v. Marrese, 253 Ill. App. 3d 778, 193 Ill. Dec. 8, 625 N.E.2d 1129 (1993), the circuit court denied defendants' motions and held that the two-year limitations period of the Code of Civil Procedure (Code) (735 ILCS 5/13-212(a) (West 1996)) controlled. Pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308), the courts in both cases certified the following question for appeal: Which statute of limitations applies to malpractice actions against Cook County Hospital and its physician employees, the one-year limitations period of the Tort Immunity Act or the two-year limitations period of the Code governing medical malpractice actions?

The cases were consolidated for purposes of appeal. We hold the one-year limitations period of the Tort Immunity Act controls because it is a more specific statute and because this construction comports with the plain language of the Tort Immunity Act. In holding as we do, we decline to follow the court's decision in Cleaver. Accordingly, we reverse the denial of defendants' motions to dismiss plaintiffs' complaints.

ANALYSIS

I. Statute of Limitations and Notice

Prior to the 1986 amendments to the Tort Immunity Act, a party that wanted to bring an action against a local public entity was required to give written notice within a specified period of time from the date of injury or the cause of action accrued. Ill. Rev. Stat. 1985, ch. 85, par. 8-102. In 1986, the statutory notice requirement was repealed and changes were incorporated in section 8-101 of the Tort Immunity Act. Pub. Act 84-1431, art. 1, ยง 3, eff. November 25, 1986. Section 8-101, at issue here, provides:

"No civil action may be commenced in any court against a local entity or any of its employees for any injury unless it is commenced within one year from the date that the injury was received or the cause of action accrued. For purposes of this Article, the term 'civil action' includes any action, whether based upon common law or statutes or Constitution of this State." 745 ILCS 10/8-101 (West 1996).

The Illinois Supreme Court has expressly recognized that the policy concerns underlying the notice provision of the Tort Immunity Act are identical to those of section 8-101 of the Tort Immunity Act. Saragusa v. City of Chicago, 63 Ill. 2d 288, 292, 348 N.E.2d 176 (1976). The common purposes of the two provisions are to provide the local governmental entity an early opportunity to investigate the claim asserted against it and to lessen the exposure of the local governmental entity to actions already existing under the common law. Saragusa, 63 Ill. 2d at 292. Although the statutory notice provision has been repealed, we are persuaded nevertheless by the reasoning of several notice provision cases in reaching the conclusion that the one-year limitations period of section 8-101 of the Tort Immunity Act governs the cases at bar.

In Rio v. Edward Hospital, 104 Ill. 2d 354, 365, 84 Ill. Dec. 461, 472 N.E.2d 421 (1984), the Illinois Supreme Court held the discovery rule and the four-year statute of repose applied to medical malpractice claims against local governmental entities and their employees. The court also held that the notice provision of the Tort Immunity Act (section 8-102) applied with equal force to such claims. Thus, by applying the discovery rule to local governmental defendants, an injured party would still be required to give timely notice after discovery of his injury. Rio, 104 Ill. 2d at 365. See also Saragusa, 63 Ill. 2d 288, 348 N.E.2d 176; Thomas v. Davenport, 196 Ill. App. 3d 1042, 143 Ill. Dec. 669, 554 N.E.2d 604 (1990); Stewart v. County of Cook, 192 Ill. App. 3d 848, 140 Ill. Dec. 23, 549 N.E.2d 674 (1989) (all applying the former notice provision of the Tort Immunity Act to medical malpractice claims against publicly owned hospitals).

Of primary import, the supreme court observed that the notice provision of the Tort Immunity Act was, in effect, a limitations provision, which could be waived by the local governmental entity. Rio, 104 Ill. 2d at 362. Moreover, the notice provision of section 8-102 was to be read in conjunction with section 8-101, requiring that suit be filed within the prescribed time period. See Saragusa, 63 Ill. 2d at 293. Although the Rio court did not discuss what statute of limitations period applies to medical malpractice actions against local governments, we are convinced that inherent in Rio is the presumption that the one-year period of section 8-101 applies.

We see no logical reason for distinguishing the effect of a notice provision from the effect of a statute of limitations provision in the Tort Immunity Act. "Both require a plaintiff to take some sort of action within a specified time period and both affect plaintiff's cause of action if not followed." Slaughter v. Rock Island County Metropolitan Mass Transit District, 275 Ill. App. 3d 873, 876, 212 Ill. Dec. 284, 656 N.E.2d 1118 (1995). Given their identical effect on a plaintiff's cause of action and underlying policy concerns, we are led to conclude that, like the notice provision before its repeal, the limitations period set forth in section 8-101 of the Tort Immunity Act also applies to actions against local public hospitals. Any other ...


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