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694 N.E.2d 610

April 24, 1998

SUSAN MEUSEL AND JEFFREY MEUSEL, WHITESIDE COUNTY, ILLINOIS PLAINTIFFS-APPELLEES,
v.
LAMONTE BALLARD, M.D., PRAGNA BHATT, M.D., AND COMMUNITY GENERAL HOSPITAL MEDICAL CENTER, DEFENDANTS-APPELLANTS. AMELIA LANXON, PLAINTIFFS-APPELLEES,
v.
EDWARD J. MAGNUS, M.D., KEVIN ROACHE, M.D., JOSEPH GAZIANO, M.D., PRABHAMANI IYER, M.D., AND COMMUNITY GENERAL HOSPITAL MEDICAL CENTER, DEFENDANTS-APPELLANTS.



Appeal from the Circuit Court No. 95--L--109 Honorable Daniel A. Dunagan, judge Presiding Appeal from the Circuit Court for the 14th Judicial Circuit Whiteside County, Illinois

The opinion of the court was delivered by: Justice Homer

Defendant Community General Hospital Medical Center (CGH) is a municipal corporation established under the pertinent provisions of the Illinois Municipal Code. 65 ILCS 5/11--22--1 et seq. (West 1996). In separate cases, plaintiffs Susan and Jeffrey Meusel and plaintiff Amelia Lanxon sued CGH and various others for medical malpractice. In both cases, the complaints were filed more than one year, but less than two years, after the accrual of their respective causes of action.

CGH moved for summary judgment in both cases arguing that plaintiffs' claims were barred by the tolling of the applicable statute of limitation, which it asserted was the one-year period set forth in the Local Governmental and Governmental Employees Tort Immunity Act (the Tort Immunity Act) (745 ILCS 10/8--101 (West 1996)). In response, plaintiffs argued that their suits were timely filed because the applicable statute of limitation was the two-year period governing medical malpractice cases set forth in section 13--212(a) of the Code of Civil Procedure (the Code) (735 ILCS 5/13--212(a) (West 1996)).

The same trial Judge heard both motions and denied summary judgment finding the two-year limitation period in section 13--212(a) of the Code applicable. Thereafter, the trial Judge granted CGH's motions for interlocutory appeal and certified in essence the following question for review in each case: which statute of limitation applies when a municipal hospital is sued for medical malpractice, the one-year period set forth in section 8--101 of the Tort Immunity Act or the two-year period in section 13--212(a) of the Code?

This court granted interlocutory review in both cases pursuant to Supreme Court Rule 308 (155 Ill. 2d R. 308). Because of the identity of the issues presented, we have consolidated the cases on appeal. The scope of a reviewing court's examination in an interlocutory appeal is strictly limited to the question certified by the trial court. McMichael v. Michael Reese Health Plan Foundation, 259 Ill. App. 3d 113, 116, 631 N.E.2d 317, 320 (1994). As with all questions of law, this court conducts de novo review of the certified question. Roubik v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 285 Ill. App. 3d 217, 219, 674 N.E.2d 35, 36 (1996); Kincaid v. Smith, 252 Ill. App. 3d 618, 623, 625 N.E.2d 750, 754 (1993).

Section 13--212(a) of the Code provides in pertinent part: "[N]o 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 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." (Emphasis added.) 735 ILCS 5/13--212(a) (West 1996).

Section 8--101 of the Tort Immunity Act 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 the common law or statutes or Constitution of this State." (Emphasis added.) 745 ILCS 10/8--101 (West 1996).

The principal rule of statutory construction is to ascertain and give effect to the legislature's intent which is determined from plain language of the statute itself. Hayes v. Mercy Hospital & Medical Center, 136 Ill. 2d 450, 455, 557 N.E.2d 873, 875 (1990). Courts should not depart from the plain meaning of a statute by reading into it exceptions, limitations or conditions that conflict with the express legislative intent. In re Chicago Flood Litigation, 176 Ill. 2d 179, 193, 680 N.E.2d 265, 272 (1997). When the plain language of more than one statute is relevant to a given action, courts must determine which statute is more specifically applicable to the case at hand. Zimmer v. Village of Willowbrook, 242 Ill. App. 3d 437, 442, 610 N.E.2d 709, 713 (1993). Where one of the statutory provisions is general, designed to apply to cases generally, and the other is particular, relating to only one subject, the particular provision must prevail. Cleaver v. Marrese, 253 Ill. App. 3d 778, 780, 625 N.E.2d 1129, 1131 (1993), citing Hernon v. E.W. Corrigan Construction Co., 149 Ill. 2d 190, 195, 595 N.E.2d 561, 563 (1992).

Applying these rules of statutory construction, two of our appellate districts have rendered opposite decisions when faced with the question of which of the two statutes applies when a municipal hospital is sued for medical malpractice. Focusing on the nature of the claim being brought by the plaintiff, the Fifth District Appellate Court held, in Cleaver v. Marrese, 253 Ill. App. 3d 778, 625 N.E.2d 1129 (1993), that the two-year limitation period in section 13--212(a) of the Code is more specifically applicable in such instances. In Tosado v. Miller, et al., 293 Ill. App. 3d 544, 688 N.E.2d 774 (1997), however, the First District Appellate Court determined that the one-year limitation of section 8--101 of the Tort Immunity Act is the more specific provision because the legislature intended to protect a specific class of defendants, local public entities, under that provision.

After our careful review, we find the reasoning in Cleaver to be a more sound application of the aforementioned rules of statutory construction. As in Cleaver, most courts look primarily to the nature of the claim and the type of injury sustained by the plaintiff rather than the class of defendants when determining which of two conflicting statutes of limitation is more specifically applicable to a particular case. See Bertolis v. Community Unit School District No. 7, 283 Ill. App. 3d 874, 880, 671 N.E.2d 79, 83 (1996) (limitation period for personal injury actions brought by minors that accrued during minority (735 ILCS 5/13--211 (West 1994)) more specifically applicable than section 8--101 because the former specifically addresses the nature of the injury as well as a specific type of plaintiff); Zimmer, 242 Ill. App. 3d at 442-43, 610 N.E.2d at 713 (limitation period for actions brought against a body politic relating to acts or omissions in construction (735 ILCS 5/13--214(a) (West 1992)) more specifically applicable than section 8--101 because the former was restricted to claims arising out of construction activities); Hernon, 149 Ill. 2d at 196, 595 N.E.2d at 563 (limitation period for acts or omissions relating to construction (Ill. Rev. Stat. 1989, ch. 110, pars. 13--214(a), (b)) more specifically applicable than the period for personal injury actions (Ill. Rev. Stat. 1989, ch. 110, par. 13--202) because the former pertains only to construction-related activities); Heneghan v. Sekula, 181 Ill. App. 3d 238, 242, 536 N.E.2d 963, 966 (1989) (section 13-- 212(a) more specifically applicable than the limitation period for contribution actions (Ill. Rev. State 1983, ch. 110 par. 13--204) because the former applies to a specific type of claim and the latter applies to a broad range of claims, but noting that the former also applied to specific types of defendants and the latter made no distinction among types of tortfeasors); Desai v. Chasnoff, 146 Ill. App. 3d 163, 167, 496 N.E.2d 1203, 1205 (1986) (section 13--212(a) more specifically applicable than the limitation period in the Uniform Commercial Code (810 ILCS 5/1--101 et seq. (West 1992)) because it applies only to a particular type of claim and the latter applies to all breaches of contracts for sale); Walsh v. Barry-Harlem Corporation, 272 Ill. App. 3d 419, 418, 649 N.E.2d 614, 619 (1995) (section 13--212(a) more specifically applicable than the limitation period in Consumer Fraud and Deceptive Business Practices Act (815 ILCS 505/1 et seq. (West 1992)), because the former applies only to medical malpractice actions).

In contrast, we find that the Tosado decision, focusing solely on the class of defendants to determine specificity, represents a departure from the analysis which courts have followed in the past. Although some courts have considered the type of defendants protected by the limitation period as a part of the overall analysis (E.g., Heneghan, 181 Ill. App. 3d at 242, 536 N.E.2d at 966; Wheatley v. Chicago Transit Authority, 289 Ill. App. 3d 60, 65, 682 N.E.2d 418, 421 (1997)), we found no case other than Tosado which relies on this factor to the exclusion of consideration of the nature of the claim and type of injury sustained. Further, we note that both of the instant statutes could be viewed as applying to a specific class of defendants. Section 8--101 applies only to actions against public entities, and section 13--212(a) applies only to actions against doctors, dentists, nurses, and hospitals. Therefore, the class of defendant approach adopted by Tosado is of limited usefulness in determining which limitation statute is more specific in these cases.

In applying the more traditional analysis of considering the nature of the claims and the type of injuries sustained by the instant plaintiffs, we find section 13--212(a) more specifically applicable to their cases. Section 8--101 applies generally to civil actions for any injury, while section 13-212(a) applies specifically and exclusively to actions for injuries arising out of patient care. Accordingly, section 13--212(a) is the more specific statute and should prevail.

Furthermore, when choosing between two statutes in direct conflict, the more recent enactment will usually prevail as the later expression of legislative intent. Jahn v. Troy Fire Protection District, 163 Ill. 2d 275, 282, 644 N.E.2d 1159, 1162 (1994). Section 8--101 was first enacted in 1965 (745 ILCS Ann. 10/8--101, Historical & Statutory Notes, at 882 (Smith-Hurd 1993)), while section 13--212(a) was first enacted in 1982 (735 ILCS Ann. 5/13--212, Historical & Statutory Notes, at 366 (Smith-Hurd 1992)). Although both statutes have been amended in recent years, the legislature has not deemed it necessary to resolve the conflict between these two sections as they relate to the limitation period for medical malpractice actions brought against municipal hospitals. The Civil Justice Reform Act of 1995, which was enacted after the Cleaver decision, included various provisions relating to both medical malpractice actions and governmental tort immunity. See Pub. Act 89--7, §§ 15, 45, eff. March 9, 1995 (amending various provisions of the Code and the Tort Immunity Act). However, the legislation did not address or obviate the holding in Cleaver. Therefore, we find no justification for reading a municipal hospital exception into section 13--212(a) where one is not expressly provided for.

CGH relies upon Feiler v. Covenant Medical Center of Champaign- Urbana, 232 Ill. App. 3d 1088, 598 N.E.2d 376 (1992) and Sappington v. Sparta Municipal Hospital District, 106 Ill. App. 2d 255, 245 N.E.2d 262 (1969) for the proposition that, in the past, the limitation period in the Tort Immunity Act has been applied in medical malpractice actions against municipal ...


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