Meusel v. Ballard

April 24, 1998


No. 2--97--0884

IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT

A.D., 1998

SUSAN MEUSEL and JEFFREY ) Appeal from the Circuit Court
MEUSEL, ) for the 14th Judicial Circuit
) Whiteside County, Illinois
Plaintiffs-Appellees, )
)
v. )
)
LAMONTE BALLARD, M.D., ) No. 94--L--138
PRAGNA BHATT, M.D., and )
COMMUNITY GENERAL HOSPITAL )
MEDICAL CENTER, ) Honorable
) Daniel A. Dunagan,
Defendants-Appellants. ) Judge Presiding

No. 2--97--0711

IN THE
APPELLATE COURT OF ILLINOIS
THIRD DISTRICT

A.D., 1998

AMELIA LANXON, ) Appeal from the Circuit Court
) for the 14th Judicial Circuit
Plaintiffs-Appellees, ) Whiteside County, Illinois
)
v. )
)
EDWARD J. MAGNUS, M.D., ) No. 95--L--109
KEVIN ROACHE, M.D., JOSEPH )
GAZIANO, M.D., PRABHAMANI )
IYER, M.D., and COMMUNITY )
GENERAL HOSPITAL MEDICAL )
CENTER, ) Honorable
) Daniel A. Dunagan,
Defendants-Appellants. ) Judge Presiding

JUSTICE HOMER delivered the opinion of the court:

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
hospitals. However, these decisions predate Cleaver and do not
address the issue facing this court.
Sappington did not address applicability of section 13--
212(a) since it was decided prior to the enactment of that
statute; and in Feiler, the plaintiff made no assertion that
section 13--212(a) should apply to his medical malpractice claim.
Rather, the courts in those cases were asked only to determine
whether the subject hospitals met the definition of a public
entity under the Tort Immunity Act. Feiler, 232 Ill. App. 3d at
1091, 598 N.E.2d at 378; Sappington, 106 Ill. App. 2d at 256, 245 N.E.2d at 262-63. Therefore, we find that those decisions are
not helpful to our analysis.
We also are not persuaded by defendant's argument that
application of section 13--212(a) to municipal hospitals would
have the effect of unduly promoting the private interests of
health care providers while adversely impeding the public
interests protected by section 8--101. The primary purpose of
all statutes of limitation is to encourage early investigation
into claims at a time when witnesses and other evidence are
available and conditions have not materially changed. See Hayes,
136 Ill. 2d at 457-58, 557 N.E.2d at 876; Dachs v. Louis A. Weiss
Memorial Hospital, 156 Ill. App. 3d 465, 467, 509 N.E.2d 489, 491
(1987); Saragusa v. City of Chicago, 63 Ill. 2d 288, 293, 348 N.E.2d 176, 179-80 (1976). Consistent application of the two-
year limitation of section 13--212(a) of the Code to all medical
malpractice actions would not undermine this general goal. On
the other hand, there are two important reasons that justify
applying section 13--212(a) to municipal hospitals just as any
other hospital.
By nature, a claim for medical malpractice is often not
immediately apparent to the injured party. Such claims also
usually involve complex issues requiring substantial pre-filing
investigation, including certification of merit by a physician
(735 ILCS 5/2--622 (West 1996)), to ascertain whether the claim
warrants filing a lawsuit. The complex nature of medical
malpractice claims supports application of the two-year statute
of limitation set forth in section 13--212(a).
Secondly, the fact that a hospital is a municipal hospital
may not be readily apparent to someone who is injured in such a
facility. Consequently, it may not be obvious to an injured
party, until it is too late, that her claim would be guided by a
different statute of limitation due to the status of the hospital
as a public entity. Based upon the unique nature and procedural
requirements of claims arising out of patient care, we find no
reason to hold municipal hospitals to a lesser standard than any
other hospital.
Finally, we are unconvinced by defendant's contention that
application of section 13--212(a) to municipal hospitals would be
an unconstitutional violation of equal protection. Citing
Fujimura v. Chicago Transit Authority, 67 Ill. 2d 506, 368 N.E.2d 105 (1977), CGH contends that there is no rational basis for
holding a municipal hospital to a different statute of limitation
than any other municipal entity. Therefore, applying the two-
year period to medical malpractice actions brought against
municipal hospitals would be unconstitutional.
However, in Fujimura, the court held that differing
functions and activities of various public entities often
constitute a rational basis to support a different period of
limitation for one government entity, as distinguished from other
government entities. Fujimura, 67 Ill. 2d at 514, 368 N.E.2d at
108. Unlike most other public entities, a municipal hospital is
in the business of providing patient care and will naturally be
subjected to claims of medical malpractice. The distinct
functions and activities in which municipal hospitals engage
constitute a rational basis for treating them differently from
other municipal entities.
For the foregoing reasons, we answer the certified question
by holding that the two-year statute of limitation set forth in
section 13--212(a) of the Code is applicable to medical
malpractice cases brought against municipal hospitals rather than
the one-year statute of limitation of section 8--101 of the Tort
Immunity Act.
Having answered the certified question, we remand the cause
to the circuit court of Whiteside County for further proceedings.
Answered and remanded.
MCCUSKEY, P.J., and BRESLIN, J., concur.