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Ferguson v. McKenzie

January 29, 2001

VIRGINIA FERGUSON, AS ADM'R OF THE ESTATE OF FRANKLIN FERGUSON, DECEASED, APPELLANT,
v.
DR. ALICIA MCKENZIE ET AL., APPELLEES.



The opinion of the court was delivered by: Justice Freeman

Docket No. 89144-Agenda 28-September 2000.

In Tosado v. Miller, 188 Ill. 2d 186 (1999), adult plaintiffs brought medical malpractice actions against a county hospital and its employees. A plurality of this court concluded that the applicable statute of limitations was the one-year limitations period of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act or Act) (745 ILCS 10/8-101 (West 1998)) rather than the two-year limitations period for medical malpractice actions generally, as prescribed in the Code of Civil Procedure (Code) (735 ILCS 5/13-212(a) (West 1998)).

In this case, we are asked to determine the applicable limitations period where an heir in a wrongful death claim was a minor when the cause of action accrued, but whose claim against Cook County was not brought until after her nineteenth birthday. We hold that the one-year limitations period of the Tort Immunity Act ran on her claim. Accordingly, it was time-barred.

BACKGROUND

The record contains the following pertinent evidence. Franklin Ferguson (decedent) went to the Fantas Clinic of Cook County Hospital for removal of cataracts. Decedent, 63 years old, was a diabetic for over 25 years and previously had a heart attack. An electrocardiogram (EKG) produced abnormal findings. The clinic, after subsequent evaluation, cleared decedent for surgery, local anesthetic only. On October 10, 1991, decedent underwent removal of a cataract in his left eye. Later that evening at his home, decedent suffered cardiac arrest and died.

At the time of his death, decedent had a wife, Virginia Ferguson (plaintiff), and five children. Four of his children were adults: Mary Benson, Deborah Emerson, and Brian and Stewart Ferguson. A daughter, Karen Ferguson, was a minor; she was born on May 7, 1974, and was 17 years and 5 months of age at the time of decedent's death.

On October 7, 1993, less than two years but more than one year after decedent's death, plaintiff, individually and as administrator of decedent's estate, brought a medical malpractice action in the circuit court of Cook County. Plaintiff named as defendants Drs. Alicia McKenzie, Jeffrey Nichols, Catherine Kallal, Alan Axelrod, and Maan Elkhadra. The complaint contained, inter alia, a wrongful-death count that alleged damages for injuries to decedent's estate, but did not identify the heirs on whose behalf plaintiff brought the action. We note that Karen was 19 years and 5 months of age when plaintiff filed the original complaint.

On January 11, 1994, plaintiff filed an amended complaint. Plaintiff amended the original wrongful-death count by naming herself and decedent's four adult children as the heirs on whose behalf plaintiff brought the action. Also, plaintiff added a separate wrongful-death count, brought specifically on behalf of Karen, which named Cook County as a defendant. Karen was 19 years and 8 months of age.

Defendants moved for summary judgment. The motion was "aimed at one issue only: whether the lawsuit was timely filed." Defendants argued that plaintiff failed to file the complaint within one year of the occurrence, as required under section 8-101 of the Tort Immunity Act (745 ILCS 10/8-101 (West 1994)). Plaintiff responded that the complaint was timely because section 13-212(a) of the Code (735 ILCS 5/13-212(a) (West 1994)) allows an adult two years to file a medical malpractice claim and section 13-212(b) of the Code (735 ILCS 5/13-212(b) (West 1994)) allows a minor eight years to file a medical malpractice claim.

The trial court ruled that the one-year limitations period of the Tort Immunity Act applied to all medical malpractice claims brought against local governmental entities and their employees, including those claims brought on behalf of minors. Accordingly, the trial court granted summary judgment in favor of defendants. The appellate court affirmed. No. 1-98-0617 (unpublished order under Supreme Court Rule 23 (166 Ill. 2d R. 23(c)). We allowed plaintiff's petition for leave to appeal (177 Ill. 2d R. 315(a)), and now affirm the appellate court.

DISCUSSION

The purpose of summary judgment is not to try a question of fact, but to determine whether one exists. Gilbert v. Sycamore Municipal Hospital, 156 Ill. 2d 511, 517 (1993). Summary judgment is appropriate only where "the pleadings, depositions, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law." 735 ILCS 5/2-1005(c) (West 1998). In an appeal from the grant of summary judgment, review is de novo. Crum & Forster Managers Corp. v. Resolution Trust Corp., 156 Ill. 2d 384, 390 (1993).

We are asked to consider another interplay between section 13-212 of the Code and section 8-101 of the Tort Immunity Act. Section 13-212 states in pertinent part:

"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 *** 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, 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 *** 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 ...


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