Partin v. St. Francis Hospital

FIRST DIVISION
APRIL 20, 1998

No. 1-96-0270

GEORGE PARTIN, ) Appeal from the
) Circuit Court
Plaintiff-Appellant, ) of Cook County.
)
v. )
)
ST. FRANCIS HOSPITAL, IMRE G. )
HIDVEGI, JOHN SCHUETZ, and )
M. MADRIL, ) Honorable
) JULIA M. NOWICKI,
Defendants-Appellees. ) Judge Presiding.

PRESIDING JUSTICE BUCKLEY delivered the opinion of the
court:
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).
A. DUE PROCESS
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 on past
practice, not unreasonably limiting a
plaintiff s ability to bring a lawsuit."
(85th Ill. Gen. Assem., Senate Proceedings,
May 13, 1987, at 196-97 (Statements of
Senator Marovitz).
As defendants assert, the selection of an eight-year limit
was not arbitrary or unreasonable. The legislature selected a
period that was longer than the time within which most medical
malpractice claims on behalf of minors are filed and provided an
additional three years after the statute's effective date to
protect minors whose claims were extinguished by the shortened
period.
Likewise, a rational basis is readily apparent for different
treatment of children subject to the dual disability of age and
mental incompetence. Where age is the only disability, it is
likely that the child can communicate his/her physical symptoms
to a parent or guardian. However, if a child suffers from mental
incompetence, the likelihood that he/she possesses the ability to
communicate is not the same.
We find that section 13-212(b) does not violate due process
because the legislature possessed a rational basis for selecting
an eight-year period. As defendants assert, section 13-212(b)
does not impair a minor plaintiff's ability to bring a cause of
action against a health care provider. Rather, it only limits
the time available in order to achieve a reasonable legislative
purpose of having minor plaintiffs file their actions in a timely
fashion.
B. EQUAL PROTECTION
Plaintiff's next contention is that section 13-212(b)
violates the right to equal protection because it treats minor
victims of malpractice differently from minor victims of other
types of negligence and also because it treats minors with age
disabilities differently from minors with similar injuries but
different competence disabilities. We find that plaintiff's
equal protection argument has no merit.
Plaintiff concedes that, as with due process, the test for
challenged laws that do not affect a fundamental right is whether
there is a rational basis for the legislature's decision to
discriminate between persons in the same class. Illinois Housing
Development Authority v. Van Meter, 82 Ill. 2d 116 (1980).
Plaintiff argues that under the challenged statute two
minors injured in a hospital are governed by different
limitations periods. A minor injured when he falls out of a
chair in a hospital has until two years after his eighteenth
birthday to bring suit under 13-211. See 735 ILCS 5/13-211 (West
1992). Whereas, a minor injured by medical negligence must bring
his suit within eight years under 13-212(b). Plaintiff urges
this court to consider this "great disparity" in treatment.
Plaintiff also argues that the statute is doubly discriminating
because a minor who is mentally disabled is unlimited in terms of
his ability to timely bring his claim.
Plaintiff concedes that the concept of treating medical
negligence victims differently than persons injured by other
tortfeasors has already been endorsed by the courts. Indeed,
ample justification exists for treating minor victims of medical
negligence different from minor victims of other types of
ordinary negligence.
In Anderson, the Illinois Supreme Court stated:
"When [the legislature] enacted this statute,
the legislature was directly addressing
itself to a medical malpractice problem. Its
action was supported by recommendations of
numerous commissions and authors that the
'long tail' of the discovery rule be
curtailed by adding to the limitation period
an outer time limit within which medical
malpractice actions must be filed. *** The
legislatures of many other states have
enacted similar limitations on medical
malpractice actions. *** Thus we must
conclude that there was a reasonable attempt
to remedy what the legislature perceived to
be a medical malpractice insurance crisis.
Whether the course was wise or the best means
of accomplishing the result desired is a
matter for legislative determination."
Anderson, 79 Ill. 2d at 316.
In Thompson, the plaintiff argued that "classifying and
treating minor victims of medical malpractice differently from
minor victims of other forms of negligence" was an equal
protection violation. Thompson, 218 Ill. App. 3d at 411. The
Appellate Court, Third District, rejected this argument and
stated:
"[A]s we have already observed, the
legislature perceived a problem within the
area of medical malpractice, and in
addressing that problem chose to treat
plaintiffs alleging medical malpractice (both
adults and minors) differently from
plaintiffs alleging other forms of
negligence. As Anderson noted, the
legislature's solution in the form of a
shortened statute of limitations was not
unreasonable in light of what it was trying
to accomplish. We conclude that plaintiff
has not established that section 13-212(b)
violates her Federal or State equal
protection rights." Thompson, 218 Ill. App.
3d at 411.
Since a different repose period for minors injured through
medical malpractice and minors injured by other types of
negligence is rationally related to a legitimate state purpose,
we find the statute does not violate equal protection.
Plaintiff's second equal protection argument is that no
rational basis exists to distinguish between victims of medical
malpractice disabled by age alone, and victims of medical
malpractice subject to the dual disabilities of age and mental
incompetence. We believe that this argument also lacks merit.
Again, the rational basis test applies and requires a
finding that legislative acts are not unconstitutional if any
state of facts reasonably may be conceived to justify them.
Illinois Housing, 82 Ill. 2d at 122. As we already discussed, a
rational basis exists on which to distinguish between medical
malpractice victims disabled by age only, and those disabled by
both age and mental incompetence. As the third district reasoned
in Thompson, the legislature could reasonably expect that parents
and guardians will protect the rights of children. Thompson, 218
Ill. App. 3d at 410. However, this presupposes children are able
to communicate with their parents or guardians. This presumption
is not necessarily applicable when minority is coupled with the
additional disability of mental incompetence.
Because the legislature could reasonably perceive a
difference in the circumstances involving the medical malpractice
claims of persons disabled by age only and those disabled by both
age and mental incompetence, the distinction recognized in
section 13-212 is rationally related to a legitimate legislative
goal. Accordingly, we find section 13-212 does not violate the
equal protection guarantees of the Illinois or United States
Constitutions.
C. ACCESS TO COURTS
Plaintiff's third constitutional challenge to section 13-
212(b) is based on article I, section 12, of the Illinois
Constitution, which provides "[e]very person shall find a certain
remedy in the laws for all injuries and wrongs which he receives
to his person." Ill. Const. 1970, art. I, 12. Plaintiff
contends section 13-212(b) destroys a minor plaintiff's right of
access. We disagree.
As defendants note, Illinois courts regard this portion of
the constitution as "an expression of a philosophy and not a
mandate that a 'certain remedy' be provided in any specific form
or that the nature of the proof necessary to the award of a
judgment or decree continue without modification." Sullivan v.
Midlothian Park District, 51 Ill. 2d 274, 277 (1972).
The case of Mega v. Holy Cross Hospital, 111 Ill. 2d 416,
424 (1986), is dispositive on this issue. In Mega, the Illinois
Supreme Court stated that this constitutional provision may be
implicated when a statute bars or eliminates an entire category
of cases, but it has no application to a statute that merely
restricts the time within which a plaintiff may file suit.
Since section 13-212(b) does not bar a minor plaintiff from
bringing suit, we find that it does not violate article I,
section 12, of the Illinois Constitution.
D. SPECIAL LEGISLATION
Plaintiff's final contention is that section 13-212(b) is
unconstitutional because it constitutes special legislation. We
disagree.
Article IV, section 13, of the Illinois Constitution
provides that "[t]he General Assembly shall pass no special or
local law when a general law is or can be made applicable." Ill.
Const. 1970, art. IV, 13. Special legislation confers a special
benefit or exclusive privilege on a person or a group of persons
to the exclusion of others similarly situated. Cutinello v.
Whitley, 161 Ill. 2d 409 (1994). The purpose of the special
legislation provision is to prevent arbitrary legislative
classifications. Cutinello, 161 Ill. 2d at 417. The review of
special legislation is governed by the same standard used to
review equal protection challenges. Cutinello, 161 Ill. 2d at
417.
Plaintiff argues that, in this case, the class consists of
minor plaintiffs who sustained injuries as a result of medical
negligence and that section 13-212(b) puts a special burden on
some members of that class. Plaintiff asserts that while all the
class members are disabled by age, section 13-212(b) puts a
special burden on those who do not have an additional handicap,
i.e., those who are not permanently mentally incompetent.
Plaintiff goes on to argue that under a balancing test the impact
of the legislation on the "long tail" is limited because it
addresses only part of the problem group but does so by
tremendously burdening part of the group.
As with plaintiff's due process and equal protection
challenges, the question whether section 13-212(b) constitutes
special legislation invokes the rational basis test. Bernier v.
Burris, 113 Ill. 2d 219 (1986). Bernier followed Anderson v.
Wagner, 79 Ill. 2d 295 (1979), which held that the standard of
review applied when legislation is challenged under article IV,
section 13, is to determine whether a rational basis exists for
differentiating between the class to which the law is applicable
and the class to which it is not. Anderson, 79 Ill. 2d at 315.
We note that, after oral arguments, plaintiff filed a motion
for leave to cite additional authority which was granted.
Plaintiff cites a recent Illinois Supreme Court case, Best v.
Taylor Machine Works, 179 Ill. 2d 367 (1997), holding that "An
Act to amend certain Acts in relation to civil actions, *** the
Civil Justice Reform Amendment of 1995" (Pub. Act 98-7, eff.
March 9, 1995) which completely rewrote section 2-1117 of the
Code of Civil Procedure violated the Constitution's prohibition
against "special legislation" by providing that joint liability
applied only in cases alleging medical malpractice and not in
actions for death, bodily injury, or property damage. The court
found that section 2-1117(b) "arbitrarily and unconstitutionally
provides a special benefit for medical malpractice plaintiffs."
Best, 179 Ill 2d at 432.
The situation in the instant case is dissimilar. Here we
have a class of minors injured by medical malpractice. This
class contains minors who suffer from an additional disability of
mental incompetence. As we already discussed, a rational basis
exists to distinguish between medical malpractice victims
disabled by age only, and medical malpractice victims disabled by
both age and mental incompetence.
Therefore, since the classification at issue bears a
rational relation to the purpose of the act and the evil it seeks
to remedy, it does not violate the constitutional ban on special
legislation.
Accordingly, for the foregoing reasons, the judgment of the
circuit court of Cook County is affirmed.
Affirmed.
CAMPBELL, P.J., and GALLAGHER, JJ., concur.