S.D. v. Kishwaukee Community Hospital

No. 2--96--1242

________________________________________________________________

IN THE

APPELLATE COURT OF ILLINOIS

SECOND DISTRICT
________________________________________________________________

S.D., a Minor, by her Mother ) Appeal from the Circuit Court
and Next Friend, D.D.; and D.D. ) of De Kalb County.
and L.D., Indiv., )
) No. 96--L--9
Plaintiffs-Appellants, )
)
v. )
)
KISHWAUKEE COMMUNITY HOSPITAL; )
J. McCORMICK; C.F. BOYLES; )
ISHTIAQUE BANGESH; HERIBERTO )
MENEDEZ; NEIL ROSS; STANLEY )
BRANDON; C. WILHELM; M. JOHNSEN; )
N. RICH (appearing as N. Rich- )
Feyerherm); J. KOHN; D. HENIGAN; )
M. BARNES; N. KUHN (appearing )
as N. Kuhn-Ignelsi); G. CAMPBELL)
(appearing as Rita Campbell); )
PAT DAGGERBERG (appearing as )
Pat Fagerberg-Freeman); )
B. ROLAND; L. LATHROP; M.S. )
LIPPS; M. NELSON; G. PECKER )
(appearing as G. Pecks); RAPP )
(appearing as Rosemary Taffs); )
G. WEYALI (appearing as )
G. Wojcik); M. WIHMEYER )
(appearing as Mary Wehmeyer); )
J. KROPSCINIC (appearing as )
Jacquelyn Mascenic); S. SLOVIK; )
KRAFTS; BEJNENEUZ (appearing as )
J.J. Bejnarowicz); M. KOOTREY )
(appearing as M. Kostrey); )
S. MINOR (appearing as A. Minor- )
Sorrentino); and KRIS )
McCLURE, ) Honorable
) John W. Countryman,
Defendants-Appellees. ) Judge, Presiding.
________________________________________________________________

JUSTICE INGLIS delivered the opinion of the court:

Plaintiffs, S.D., a minor, and her mother and next friend,
D.D., and D.D. and L.D., individually, appeal the order of the
circuit court of De Kalb County dismissing their medical
malpractice and family expense statute (750 ILCS 65/15 (West 1994))
claims against defendants, Kishwaukee Community Hospital and a
number of physicians and nurses, as time-barred under section 13--
212(b) of the Code of Civil Procedure (Code) (735 ILCS 5/13--212(b)
(West 1994)). We affirm in part and reverse in part and remand.
The following facts are taken from the plaintiffs' complaint.
S.D. was allegedly injured during her birth on August 15, 1981,
suffering severe and permanent disability due to brain damage
allegedly caused by defendants. On March 14, 1995, plaintiffs
filed an 11-count complaint against defendants alleging medical
malpractice and seeking damages for the minor's injuries and
reimbursement for the parents' past and future expenses on behalf
of their child.
Defendants filed a motion to dismiss pursuant to section 2--
619 of the Code (735 ILCS 5/2--619 (West 1994)), contending that
plaintiffs' claim was barred by the eight-year statute of repose
for minors set forth in section 13--212(b) of the Code (735 ILCS
5/13--212(b) (West 1994)). Defendants argued that section 1.06 of
the Statute on Statutes (5 ILCS 70/1.06 (West 1994)) defined a
"[p]erson under legal disability" in a way that expressly excluded
minors. Defendants further argued that, even if the minor were
considered to be mentally disabled, the repose period for actions
against health care providers, as opposed to the limitations
period, was no different for persons under legal disability than
for any other person. Defendants also argued that plaintiffs'
family expense statute claims were barred by section 13--203 of the
Code (735 ILCS 5/13--203 (West 1994)) because the claims were not
brought within the two-year statute of limitations or the four-year
statute of repose.
Plaintiffs argued that their claims were subject to the
tolling provisions of section 13--212(c) of the Code because the
minor suffered from the disabilities of minority and mental
incompetency. Plaintiffs contended that the tolling period for
mental incompetency did not end until the disability was removed
and, therefore, the four-year period of repose did not apply to
this case. Plaintiffs also argued that their family expense
statute action was not barred because the period required to bring
derivative causes of action coincided with the period applicable to
the underlying cause of action.
The trial court dismissed all counts of plaintiffs' complaint
on July 3, 1996. The trial court held that section 13--212(b) of
the Code applied to minors regardless of whether the minor was
under any other legal disability.
Plaintiffs filed a motion to reconsider, which the trial court
denied on October 3, 1996. Plaintiffs' timely appeal followed.
We are asked to decide whether subsection (b) or (c) of the
medical malpractice limitations statute governs the situation where
the plaintiff is both a minor and incompetent. Section 13--212
provides:
"(a) Except as provided in Section 13--215 [fraudulent
concealment] 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 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,
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.
(c) If the person entitled to bring an action described
in this Section is, at the time the cause of action accrued,
under a legal disability other than being under the age of 18
years, then the period of limitations does not begin to run
until the disability is removed." 735 ILCS 5/13--212 (West
1994).
We review the issue of statutory construction de novo. Village of
South Elgin v. City of Elgin, 203 Ill. App. 3d 364, 367 (1990).
Plaintiffs argue that section 13--212(c) was applicable to
their malpractice action and that the trial court erred by
dismissing their action pursuant to the eight-year period of repose
in section 13--212(b). Plaintiffs also raise constitutional issues
relative to the statute at issue in this appeal and question the
propriety of the trial court's dismissal of their allegations under
the family expense statute.
Defendants argue that the structure of section 13--212
indicates that plaintiffs' action is barred by the general four-
year period of repose. Defendants contend that subsection (c)
pertains only to the limitations period. Defendants assert that
the four-year period of repose set forth in subsection (a)
therefore governs actions tolled under the provision of subsection
(c). Defendants maintain that plaintiffs' action was untimely
because it was brought after the four-year period of repose had
expired. We disagree.
The principles governing statutory interpretation are
familiar. The primary rule is that a court should determine and
give effect to the legislature's intent. This intent is best
discerned from the words of the statute itself. Bonaguro v. County
Officers Electoral Board, 158 Ill. 2d 391, 397 (1994). Where the
statutory language is clear and unambiguous, a court must enforce
the statute as enacted without adding exceptions, conditions, or
limitations to the legislature's clearly expressed intent.
Bethania Ass'n v. Jackson, 262 Ill. App. 3d 773, 776-77 (1994).
Additionally, a court must construe the statute so as to give each
provision some reasonable meaning and to avoid finding surplusage,
if possible. Bethania Ass'n, 262 Ill. App. 3d at 777.
The plain language of subsection (b) relates to a person who
"was, at the time the cause of action accrued, under the age of 18
years." 735 ILCS 5/13--212(b) (West 1994). Subsection (c), on the
other hand, relates to a person who is, "at the time the cause of
action accrued, under a legal disability other than being under the
age of 18 years." (Emphasis added.) 735 ILCS 5/13--212(c) (West
1994). Plaintiff minor would thus, by the plain language of the
statute, fall under both subsections (b) and (c). Accordingly, the
plain language of the statute mandates that the limitations period
begins to run only when plaintiff minor's disability is removed,
or, in this case, never. While this may be a harsh result for
defendants, it is supported by the development of the statute and
various decisions interpreting the statute.
Section 13--212 was amended in 1987, substantially taking its
current form. Before the 1987 amendment, section 13--212 provided:
"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 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 except as provided in Section 13--215 [fraudulent
concealment] of this Act.
If the person entitled to bring the action is, at the
time the cause of action occurred, under the age of 18 years,
or under legal disability or imprisoned on criminal charges,
the period of limitations does not begin to run until the
disability is removed." Ill. Rev. Stat. 1985, ch. 110, par.
13--212.
Thus, the first paragraph is almost identical to the current
subsection (a), and the second paragraph is substantially similar
to subsection (c).
The tolling provision in the pre-1987 version of the statute
was interpreted in Passmore v. Walther Memorial Hospital, 152 Ill.
App. 3d 554 (1987). There, the plaintiff alleged that he was
rendered mentally incompetent in 1962 at the age of eight months.
Four years after his eighteenth birthday, he was legally
adjudicated disabled and shortly thereafter filed his malpractice
action. Passmore, 152 Ill. App. 3d at 555. The court held that
the plaintiff had sufficiently alleged facts to show that he was
under a legal disability to toll the limitations period, even
though the suit was initiated more than 4« years after the
plaintiff's eighteenth birthday. Passmore, 152 Ill. App. 3d at
557. It is clear that, under the tolling provision of the pre-1987
version of the statute, the period of repose is suspended in cases
of legal disability; otherwise the plaintiff's action in Passmore
would have been barred by the period of repose.
Under the current version of the statute, subsection (c)
contains the tolling provision at issue in Passmore. It provides
that, if one entitled to bring a medical malpractice action is
"under a legal disability other than being under the age of 18
years, then the period of limitations does not begin to run until
the disability is removed." 735 ILCS 5/13--212(c) (West 1994).
The legislature did not change the substance of the tolling
provision in the 1987 amendment of section 13--212. Clark v. Han,
272 Ill. App. 3d 981, 989 (1995). Moreover, where, as here, the
legislature amended the statute at issue after it had been
interpreted in the courts, we presume the legislature was aware of
the judicial construction and acted with that knowledge. Clark,
272 Ill. App. 3d at 989. Thus, where the amendment did not change
the substance of the statute, prior judicial interpretations retain
their validity. Passmore therefore retains its vitality and
instructs us that the application of the tolling provision, now
codified at subsection (c), to the facts of this case results in
the determination that plaintiffs' action is not time-barred.
Additionally, we note that the Appellate Court, First
District, recently considered a factually indistinguishable case
interpreting section 13--212. Clark, 272 Ill. App. 3d 981. There,
the minor plaintiff alleged that the defendants committed
malpractice at his birth in 1972, resulting in incompetence. The
complaint was filed in 1992, when plaintiff was 16. The defendants
moved to dismiss the complaint as time-barred under section 13--
212. The court held that "a plaintiff who bears the dual
disability of minority age and mental incompetency is subject to
the tolling provision in subsection (c) and not the eight-year
limitations period for minors in subsection (b)." Clark, 272 Ill.
App. 3d at 990. We find Clark to be indistinguishable from the
instant case, and, to be controlling.
Defendants attempt to distinguish Clark, arguing that
plaintiff minor cannot be a person under a legal disability, as
under the Statute on Statutes a person under a legal disability
must be an adult. 5 ILCS 70/1.06 (West 1994). Section 1.06(a)
provides that a person under a legal disability "means a person 18
years or older who (a) because of mental deterioration or physical
incapacity is not fully able to manage his or her person or
estate." 5 ILCS 70/1.06(a) (West 1994). Defendants contend that
because Clark did not consider this definition and its effect on
section 13--212, it is therefore not controlling. We disagree with
defendants' argument.
The Statute on Statutes provides that "[i]n the construction
of statutes, this Act shall be observed, unless such construction
would be inconsistent with the manifest intent of the General
Assembly or repugnant to the context of the statute." 5 ILCS 70/1
(West 1994). Incorporating the definition of "[p]erson under a
legal disability" into subsection (c) would render the phrase
"other than being under the age of 18 years" superfluous.
Subsection (c) would effectively read:
"If the person entitled to bring an action described in
this Section is, at the time the cause of action accrued, 18
years or older and who (a) because of mental deterioration or
physical incapacity is not fully able to manage his or her
person or estate ***, and is not under the age of 18 years,
then the period of limitations does not begin to run until the
disability is removed."
We must construe statutes so that no sentence, clause, or word is
made superfluous or meaningless. Bonaguro, 158 Ill. 2d at 397. We
should also strive to give a reasonable meaning to each provision.
Bethania Ass'n, 262 Ill. App. 3d at 777. The interpretation
defendants urge would violate these fundamental rules of statutory
construction. In contrast, our interpretation follows the plain
meaning of the statute without recourse to external sources and is
consonant with previous judicial interpretations. Accordingly, we
reject defendants' argument. We therefore hold that the trial
court erred when it dismissed plaintiffs' medical malpractice
action. We find that plaintiff minor falls under the tolling
provision in section 13--212(c) and that the action was not time-
barred. Because of our determination of this issue, we need not
address plaintiffs' constitutional arguments.
Plaintiffs next contend that their family expense statute (750
ILCS 65/15 (West 1994)) claim was erroneously dismissed.
Plaintiffs argue that, because the medical malpractice claim was
tolled by section 13--212(c) and the family expense claim is
derivative of the medical malpractice action, it too should receive
the benefit of the tolling provision in the medical malpractice
action. Plaintiffs concede, however, that the controlling cases of
Dewey v. Zack, 272 Ill. App. 3d 742 (1995), and Beck v. Yatvin, 235
Ill. App. 3d 1085 (1992), both rejected similar arguments.
Plaintiffs urge that we reconsider the reasoning in these cases
because they were "not adequately analyze[d]." We have considered
plaintiffs' arguments and find no compelling reason to revisit our
holding in Dewey or the holding in Beck. Accordingly, we hold that
the trial court properly dismissed plaintiffs' family expense claim
(750 ILCS 65/15 (West 1994)).
For the foregoing reasons, the judgment of the circuit court
of De Kalb County is affirmed in part and reversed in part, and the
cause is remanded.
Affirmed in part and reversed in part; cause remanded.
GEIGER, P.J., and McLAREN, J., concur.