The opinion of the court was delivered by: Presiding Justice Buckley
Plaintiff, George Partin, Jr., appeals from an order dismissing his medical malpractice complaint against defendants St. Francis Hospital, Imre G. Hidvegi, M.D., John Schuetz, M.D. and M. Madrid, R.N. The trial court dismissed plaintiff's complaint because it was not filed within the time required by section 13-212(b) of the Code of Civil Procedure. 735 ILCS 5/13-212(b)(West 1992). The sole issue presented for review is whether section 13-212(b) is constitutional.
Plaintiff was born with severe brain and central nervous system damage at St. Francis Hospital on July 22, 1975. Nineteen years later, on December 23, 1994, plaintiff filed a medical malpractice complaint against defendants alleging certain acts of negligence.
Defendants filed motions to dismiss pursuant to the statute of repose found in section 13-212(b) of the Code of Civil Procedure. 735 ILCS 5/13-212(b)(West 1992). Defendants argued that the complaint was untimely because it was filed more than eight years after the date the act or omission on which the cause of action is based is alleged to have occurred and after the legislative grace period of three years, which expired on July 20, 1990. Plaintiff opposed the motion to dismiss contending that section 13-212(b) is unconstitutional because it violates the due process and equal protection requirements of the fourteenth amendment to the United States Constitution and article I, section 2, of the Illinois Constitution (U.S. Const. amend. XIV; Ill. Const. 1970, art. I, §2), it denies minor plaintiffs injured by health care providers equal access to the courts in violation of article I, section 12, of the Illinois Constitution (Ill. Const. 1970, art. I, §12) and the first amendment to the United States Constitution, and it violates article IV, section 13, of the Illinois Constitution (U.S. Const. amend. I; Ill. Const. 1970, art. I, §13) barring special legislation. The trial court applied a rational basis test and found section 13-212(b) constitutional. Accordingly, the trial court dismissed plaintiff's complaint with prejudice.
The issues raised by plaintiff on appeal are: (1) whether section 13-212(b) violates the right to due process under the federal and state constitutions; (2) whether section 13-212(b) violates the right to equal protection; (3) whether section 13-212(b) is unconstitutional because it denies certain minor plaintiffs access to the courts; and (4) whether section 13-212(b) is unconstitutional because it constitutes special legislation.
We initially note that the Illinois Supreme Court has held that the rational basis test applies when medical malpractice legislation is challenged on constitutional grounds. Bernier v. Burris, 113 Ill. 2d 219 (1986). Under the rational basis test the legislation must bear a rational relationship to a legitimate government interest. Illinois Housing Development Authority v. Van Meter, 82 Ill. 2d 116 (1980). The legislative classification is presumed valid and the burden of rebutting that presumption lies with the party challenging its constitutionality. Illinois Housing, 82 Ill. 2d at 122. If any state of facts may be conceived to justify the legislative act, then a finding of constitutionality is required. Illinois Housing, 82 Ill. 2d at 122. We also note at the outset that plaintiff's due process and equal protection arguments were raised and rejected in Thompson v. Franciscan Sisters Health Care Corp., 218 Ill. App. 3d 406 (1991).
Section 13-212(b) of the Code of Civil Procedure provides as follows:
"(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 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. If the person was under the age of 18 years when the cause of action accrued and, as a result of this amendatory Act of 1987, the action is either barred or there remains less than 3 years to bring such action, then he or she may bring the action within 3 years of July 20, 1987." 735 ILCS 5/13-212(b)(West 1992).
Plaintiff's first contention is that section 13-212(b) singles out one class of minor plaintiffs, i.e., those injured by medical malpractice, and arbitrarily limits their time to sue to eight years. Plaintiff asserts that this constitutes a violation of the right to due process secured by the fourteenth amendment of the United States Constitution and article I, section 2, of the Illinois Constitution. We disagree.
A statute is valid on due process grounds if it bears a rational relationship to a legitimate government interest. Bernier v. Burris, 113 Ill. 2d 219, 227 (1986). A law that is arbitrary or unreasonable violates due process. People v. McCauley, 163 Ill. 2d 414 (1994). The plaintiff acknowledges that due process does not bar dividing the class of injured persons into subclasses of those injured by medical negligence and those injured by other types of negligence. Anderson v. Wagner, 79 Ill. 2d 295 (1979). In Anderson, our supreme court upheld section 21.1 of the Limitations Act (formerly Ill. Rev. Stat. 1977, ch. 83, par. 22.1), a precursor to section 13-212, which established a four year outer limit within which to file a complaint for medical malpractice. Anderson, 79 Ill. 2d at 312. The supreme court stated that "the reasonableness of the statute must be Judged in light of the circumstances confronting the legislature and the end which it sought to accomplish." Anderson, 79 Ill. 2d at 312. The court reviewed the legislative history and found that the legislature sought to curtail the "long tail" exposure to medical malpractice claims which was brought about by the discovery rule. Anderson, 79 Ill. 2d at 312. Because the four year outer limit was not unreasonable, the court held there was no due process violation. Anderson, 79 Ill. 2d at 312.
The Appellate Court, Third District, used the supreme court's reasoning in Anderson when it was confronted with a challenge to the constitutionality of section 13-212(b). Thompson v. Franciscan Sisters Health Care Corp., 218 Ill. App. 3d 406 (1991). The third district upheld section 13-212(b) and stated that "it was not unreasonable for the legislature to cut down [the] 'long tail' of liability so as to lend stability to the pricing of medical malpractice insurance for medical personnel involved in childbirths." Thompson, 218 Ill. App. 3d at 409. The court went on and stated that "[t]he legislature, when faced with the need to set some reasonable time limits on medical malpractice claims, could reasonably assume that parents and guardians would look after the interests of the affected minors, and it was not a violation of the minors' due process rights for it to make this assumption." Thompson, 218 Ill. App. 3d at 410. We agree with the third district.
Nevertheless, plaintiff argues that while section 13-212(b) lengthens the time a minor has to file a medical malpractice action beyond the four years accorded most malpractice victims, the time is far less than that allowed for minor victims of other types of negligence and asserts that the eight-year figure is arbitrary. Plaintiff argues that this arbitrariness is illustrated by comparing two children with two different disabilities. Plaintiff asserts that a child with an orthopedic injury who recovers has only eight years to sue while a child with a neurological injury who is left disabled and incompetent has no limit. See Bruso v. Alexian Brothers Hospital, 178 Ill. 2d 445 (1997)(holding that where a plaintiff in a medical malpractice action is a minor and also under another legal disability such as mental incompetency, the plaintiff's action is subject to the tolling provision of section 13-212(c) and not the eight-year repose period of section 13-212(b)).
Defendants assert, however, that a review of the legislative debates makes it clear that section 13-212(b) is a direct response to the escalation in medical malpractice insurance premiums and the substantial burden defense of stale claims places upon defendants in medical malpractice litigation. During the floor debate, Senator Marovitz explained the reason why an eight-year period of repose was established for minors:
"The current Statute results in the potentiality of cases being filed as many as twenty-two years after the incident was allegedly malpractice. This delay is a significant problem both because it creates an extended period of potential liability and because it makes it difficult to get appropriate evidence. The passage of time often results in records being lost, witnesses having died or being impossible to locate and other serious problems. *** My understanding is that over ninety percent of the cases involving medical malpractice and minors are filed within seven years. Accordingly, the added certainty will aid both in determining insurance rates and in the length of time for which a potential defendant is exposed while, based ...