Tosado v. Miller

Second Division
December 2, 1997

Nos. 1-96-0771, 1-96-4075 (Cons.)

LINNETTE CONCEPCION TOSADO, ) Appeal from the
) Circuit Court of
Plaintiff-Appellee, ) Cook County.
)
v. )
)
A. MILLER, R. KOPOLOVIC, )
M. COHEN, R. BARNETT, and )
T. PADILLA, ) Honorable
) Loretta C. Douglas,
Defendants-Appellants. ) Judge Presiding.

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GAIL PHIPPS, Indiv. and as ) Appeal from the
Special Adm. of the Estate ) Circuit Court of
of Futon Phipps, a Minor, Deceased, ) Cook County.
)
Plaintiff-Appellee, )
)
v. )
)
LINCOLN MEDICAL CENTER, LTD., )
K. NAIDOO, and COUNTY OF COOK, )
d/b/a Cook County Hospital, ) Honorable
) Phillip L.
Bronstein,
Defendants-Appellants. ) Judge Presiding.

JUSTICE RAKOWSKI delivered the opinion of the court:
Plaintiffs filed separate complaints against Cook County
Hospital and its doctors for medical malpractice. Defendants
moved to dismiss the complaints on the basis that the complaints
were filed after the expiration of the one-year limitations
period of the Local Governmental and Governmental Employees Tort
Immunity Act (Tort Immunity Act) (745 ILCS 10/8-101 (West 1996)).

Following the Fifth District Appellate Court's decision in
Cleaver v. Marrese, 253 Ill. App. 3d 778 (1993), the circuit
court denied defendants' motions and held that the two-year
limitations period of the Code of Civil Procedure (Code) (735
ILCS 5/13-212(a) (West 1996)) controlled. Pursuant to Supreme
Court Rule 308 (155 Ill. 2d R. 308), the courts in both cases
certified the following question for appeal: Which statute of
limitations applies to malpractice actions against Cook County
Hospital and its physician employees, the one-year limitations
period of the Tort Immunity Act or the two-year limitations
period of the Code governing medical malpractice actions?
The cases were consolidated for purposes of appeal. We hold
the one-year limitations period of the Tort Immunity Act controls
because it is a more specific statute and because this
construction comports with the plain language of the Tort
Immunity Act. In holding as we do, we decline to follow the
court's decision in Cleaver. Accordingly, we reverse the denial
of defendants' motions to dismiss plaintiffs' complaints.
ANALYSIS
I. Statute of Limitations and Notice
Prior to the 1986 amendments to the Tort Immunity Act, a
party that wanted to bring an action against a local public
entity was required to give written notice within a specified
period of time from the date of injury or the cause of action
accrued. Ill. Rev. Stat. 1985, ch. 85, par. 8-102. In 1986, the
statutory notice requirement was repealed and changes were
incorporated in section 8-101 of the Tort Immunity Act. Pub. Act
84-1431, art. 1, 3, eff. November 25, 1986. Section 8-101, at
issue here, 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 common law or
statutes or Constitution of this State." 745
ILCS 10/8-101 (West 1996).
The Illinois Supreme Court has expressly recognized that the
policy concerns underlying the notice provision of the Tort
Immunity Act are identical to those of section 8-101 of the Tort
Immunity Act. Saragusa v. City of Chicago, 63 Ill. 2d 288, 292
(1976). The common purposes of the two provisions are to provide
the local governmental entity an early opportunity to investigate
the claim asserted against it and to lessen the exposure of the
local governmental entity to actions already existing under the
common law. Saragusa, 63 Ill. 2d at 292. Although the statutory
notice provision has been repealed, we are persuaded nevertheless
by the reasoning of several notice provision cases in reaching
the conclusion that the one-year limitations period of section 8-
101 of the Tort Immunity Act governs the cases at bar.
In Rio v. Edward Hospital, 104 Ill. 2d 354, 365 (1984), the
Illinois Supreme Court held the discovery rule and the four-year
statute of repose applied to medical malpractice claims against
local governmental entities and their employees. The court also
held that the notice provision of the Tort Immunity Act (section
8-102) applied with equal force to such claims. Thus, by
applying the discovery rule to local governmental defendants, an
injured party would still be required to give timely notice after
discovery of his injury. Rio, 104 Ill. 2d at 365. See also
Saragusa, 63 Ill. 2d 288; Thomas v. Davenport, 196 Ill. App. 3d
1042 (1990); Stewart v. County of Cook, 192 Ill. App. 3d 848
(1989) (all applying the former notice provision of the Tort
Immunity Act to medical malpractice claims against publicly owned
hospitals).
Of primary import, the supreme court observed that the
notice provision of the Tort Immunity Act was, in effect, a
limitations provision, which could be waived by the local
governmental entity. Rio, 104 Ill. 2d at 362. Moreover, the
notice provision of section 8-102 was to be read in conjunction
with section 8-101, requiring that suit be filed within the
prescribed time period. See Saragusa, 63 Ill. 2d at 293.
Although the Rio court did not discuss what statute of
limitations period applies to medical malpractice actions against
local governments, we are convinced that inherent in Rio is the
presumption that the one-year period of section 8-101 applies.
We see no logical reason for distinguishing the effect of a
notice provision from the effect of a statute of limitations
provision in the Tort Immunity Act. "Both require a plaintiff to
take some sort of action within a specified time period and both
affect plaintiff's cause of action if not followed." Slaughter
v. Rock Island County Metropolitan Mass Transit District, 275
Ill. App. 3d 873, 876 (1995). Given their identical effect on a
plaintiff's cause of action and underlying policy concerns, we
are led to conclude that, like the notice provision before its
repeal, the limitations period set forth in section 8-101 of the
Tort Immunity Act also applies to actions against local public
hospitals. Any other conclusion would result in a departure from
the plain language of the Tort Immunity Act, which prescribes a
one-year time period for any civil action to commence against a
publicly owned entity.
II. Statutory Construction
As stated above, the relevant statutes are section 8-101 of
the Tort Immunity Act and section 13-212(a) of the Code. Both
statutes set forth periods of limitations for filing suit.
Section 8-101 sets forth a one-year period for filing any civil
action against a local governmental entity. Section 13-212(a)
sets forth a two-year period for commencing medical malpractice
actions. Neither statute refers to the other; however, either
statute could arguably apply to plaintiffs' medical malpractice
actions against the publicly owned hospital and its employees.
The cardinal rule of statutory construction is to ascertain
and give effect to the legislative intent of the statute. In re
Chicago Flood Litigation, 176 Ill. 2d 179, 193 (1997). Courts
determine the legislative intent from the language of the statute
itself. In re Chicago Flood Litigation, 176 Ill. 2d at 193. If
the intent of the legislature can be ascertained from the plain
language of the statute itself, that intent must prevail.
Barnett v. Zion Park District, 171 Ill. 2d 378, 388-89 (1996).
In construing the words of the statute, we must give them their
plain and ordinary meaning. Hernon v. E.W. Corrigan Construction
Co., 149 Ill. 2d 190, 194-95 (1992). "We must not depart from
the plain language of the Act by reading into it exceptions,
limitations, or conditions that conflict with the express
legislative intent." In re Chicago Flood Litigation, 176 Ill. 2d
at 193.
The language of both statutes is unambiguous. Section 8-101
of the Tort Immunity Act clearly provides that local governmental
units and their employees are not subject to suit beyond a one-
year period. This provision makes no reference to specific
governmental agencies or categories of employees but, rather,
limits liability for any civil action, whether based upon the
common law, statutes, or the Illinois Constitution. 745 ILCS
10/8-101 (West 1996).
Section 13-212(a) of the Code is also unambiguous. It
clearly provides that no action for damages arising out of
patient care, whether based upon tort, breach of contract, or
otherwise, may be brought after two years of discovery against a
physician, dentist, registered nurse, or hospital. 735 ILCS
5/13-212(a) (West 1996). The statute also includes a four-year
repose period, which provides that in no event shall such action
be brought more than four years after the act or omission
occurred. 735 ILCS 5/13-212(a) (West 1996).
Both statutes are germane to plaintiffs' causes of action.
However, without reading exceptions and limitations into the Tort
Immunity Act, we cannot say the limitations period of the Tort
Immunity Act does not apply here. There is nothing in the Tort
Immunity Act that evinces a legislative intent to exempt local
public hospitals or their employees from the limitations
provision of section 8-101.
The clear intent of the legislature in enacting the Tort
Immunity Act was to insulate local governmental bodies from being
sued beyond a one-year period. The purpose of the limitations
provision was to encourage early investigation into claims
asserted against local governments and to lessen the exposure of
local governmental entities to actions already existing under the
common law. Saragusa v. City of Chicago, 63 Ill. 2d 288, 293
(1976); Bertolis v. Community Unit School District No. 7, 283
Ill. App. 3d 874, 878 (1996); Reese v. Village of Arlington
Heights, 204 Ill. App. 3d 129, 132 (1990). Thus, when any civil
suit is brought against a public entity, the legislature intended
to provide greater protection to the public body by shortening
the period for the filing of claims. The result should be no
different in cases of medical malpractice.
The term "civil action," as it pertains to the one-year
limitations provision of section 8-101, includes any action,
whether based upon the common law, statutes, or constitution of
this state. Certainly, a claim for medical malpractice satisfies
this definition. Furthermore, the 1986 amendment to section 8-
101 retained the one-year limitations period after repealing the
notice provision. This reveals a legislative intent to keep the
limitations period for any civil action brought against a local
governmental entity.
Section 8-101 of the Tort Immunity Act does not attempt to
immunize local government defendants from medical malpractice
liability. It simply limits the time within which any civil
action for injuries against a local entity or any of its
employees can be brought. See Herriott v. Powers, 236 Ill. App.
3d 151, 155 (1992). The objectives of the limitations statute
and the reasons underlying the time requirement for actions
asserted against local governmental entities were set forth above
and explained by the court in Saragusa, 63 Ill. 2d at 293. If we
were to allow plaintiffs to file their claims late against Cook
County Hospital and its employees, defendants would be denied the
timely opportunity to investigate and prepare for the claims
asserted against them. This result would directly conflict with
the purpose behind the abridged limitations period, which is to
provide a local government opportune notice of claims asserted
against it, since the number of claims made against it will far
exceed those brought against a private individual. See Saragusa,
63 Ill. 2d at 293.
III. Comparing the Specifics of the Statutes --
Cleaver v. Marrese
The parties contend the outcome-determinative test in this
case is to compare the specifics of the statutes. Plaintiffs
contend the medical malpractice statute is a specific statute
and, thus, prevails over the Tort Immunity Act, which is a
general statute. Conversely, defendants argue the Tort Immunity
Act more specifically governs this case and, therefore, the
limitations period of section 8-101 prevails. Arguably, either
of these statutes could apply to plaintiffs' causes of action.
However, we agree with defendants that section 8-101 of the Tort
Immunity Act is more specifically applicable to the cases at
hand.
A maxim of statutory construction provides that when more
than one statute of limitations is relevant to a given action,
the court may compare the specifics of the statutes to determine
what statute more specifically applies. Bertolis v. Community
Unit School District No. 7, 283 Ill. App. 3d 874, 879 (1996).
Whether a statute is deemed specific or general depends on the
statute it is being compared to. Rio, 104 Ill. 2d at 362. The
more specific statute will prevail over the general statute.
Hernon, 149 Ill. 2d at 195; Wheatley v. Chicago Transit
Authority, 289 Ill. App. 3d 60, 64 (1997).
Numerous court decisions have employed the specific versus
general statutory analysis in other contexts. See Hernon v. E.W.
Corrigan Construction Co., 149 Ill. 2d 190, 193, 196 (1992)
(holding the specific construction statute of limitations
prevails over the general two-year personal injury statute of
limitations); Walsh v. Barry-Harlem Corp., 272 Ill. App. 3d 418
(1995) (holding the medical malpractice statute is more specific
than the Consumer Fraud and Deceptive Business Practices Act (815
ILCS 505/1 et seq. (West 1992)) because it applies only to a
particular subject, i.e., medical malpractice actions); Desai v.
Chasnoff, 146 Ill. App. 3d 163 (1986) (holding the medical
malpractice statute is the more specific statute because it
applies only to malpractice actions, whereas the Uniform
Commercial Code (810 ILCS 5/1-101 et seq. (West 1992)) is a
general statute that applies to all breaches of contracts for
sale); Heneghan v. Sekula, 181 Ill. App. 3d 238 (1989) (holding
the medical malpractice statute of limitations is more specific
than the contribution statute of limitations because it applies
specifically to doctors and hospitals).
In Cleaver v. Marrese, 253 Ill. App. 3d 778 (1993), the
Fifth District Appellate Court held that although a plaintiff
usually has one year to file a complaint against a local public
entity, there is a limited exception where another specific
statute provides a longer limitations period to file suit.
The court began its analysis by noting, where there are two
statutory provisions, one general and the other more specific,
relating only to one particular subject, the particular provision
must prevail. Cleaver, 253 Ill. App. 3d at 780. The court
observed that "[n]umerous cases in Illinois have determined that
section 13-212 of the Code *** is a specific statute." Cleaver,
253 Ill. App. 3d at 780, citing Desai v. Chasnoff, 146 Ill. App.
3d 163 (1986), and Heneghan v. Sekula, 181 Ill. App. 3d 238
(1989). The court also noted that section 8-101 of the Tort
Immunity Act has been deemed a general statute. Cleaver, 253
Ill. App. 3d at 781-82, citing Halper v. Vayo, 210 Ill. App. 3d
81 (1991), Emulsicoat, Inc. v. City of Hoopeston, 99 Ill. App. 3d
835 (1981), and Zimmer v. Village of Willowbrook, 242 Ill. App.
3d 437 (1993). However, these cases are not instructive because
they all compare the Tort Immunity Act to statutes other than the
medical malpractice statute. Whether a statute is specific or
general depends on the particular statute it is being compared
to. Rio, 104 Ill. 2d at 362.
Nonetheless, after comparing the statutes, the Cleaver court
held the medical malpractice statute of limitations governed the
plaintiff's action rather than the one-year limitations period of
the Tort Immunity Act. The court explained that while section
13-212(a) of the Code applies specifically to physicians,
dentists, registered nurses, and hospitals, section 8-101 of the
Tort Immunity Act applies to any local entity. Also, whereas
section 13-212(a) refers only to actions arising out of patient
care, whether based upon tort, breach of contract, or otherwise,
section 8-101 applies to all civil actions of any kind. Further,
the court observed that section 13-212(a) of the Code was enacted
after section 8-101 of the Tort Immunity Act, signifying that the
legislature intended section 13-212(a) to constitute a limited
exception to section 8-101. Cleaver, 253 Ill. App. 3d at 782-83.

Accordingly, the court held the two-year limitations period of
section 13-212(a) more specifically applied to the plaintiff's
medical malpractice claim against the local public hospital and
doctor. Cleaver, 253 Ill. App. 3d at 783.
After careful analysis, we decline to accept the reasoning
of the court in Cleaver and find that plaintiffs' claims in the
instant case are governed by the one-year statute of limitations
of section 8-101 of the Tort Immunity Act. We are cognizant that
recently in Wheatley v. Chicago Transit Authority, 289 Ill. App.
3d 60, 65 (1997), we referred to Cleaver. We do not take
exception to what we said in Wheatley but note, rather, that in
Wheatley we were comparing the specifics of the Tort Immunity Act
and the Metropolitan Transit Authority Act (70 ILCS 3605/41 (West
1996)), not the medical malpractice statute.
First, we disagree with Cleaver that the Tort Immunity Act
is a general statute. Although the Tort Immunity Act applies to
all local entities and their employees, we do not see how that is
more general than section 13-212(a) of the Code, which pertains
to all physicians, dentists, registered nurses, and hospitals in
the state. Second, we disagree that the all-encompassing
language of the Tort Immunity Act dictates the conclusion that
the statute is more general than section 13-212(a) of the Code.
Rather, in our view, this clear, all-inclusive language evinces
an intent to cover all civil claims against local governmental
agencies and their employees, including those based on medical
malpractice. Where a statute is clear, we cannot read into it
exceptions, limitations, or conditions. In re Chicago Flood
Litigation, 176 Ill. 2d at 193.
Further, unlike the Cleaver court, we do not find
dispositive the fact that section 13-212(a) of the Code was
enacted after section 8-101 of the Tort Immunity Act. Without
express legislative intent or at least some reference made to the
Tort Immunity Act in the Code, we decline to gut the Tort
Immunity Act by a baseless presumption that the legislature ever
considered the effect on local governmental hospitals and their
employees. To presuppose that the legislature intends to create
an exception to the Tort Immunity Act every time it enacts a
statute on a specific subject matter would cut against the very
purpose of the Tort Immunity Act
We are also unpersuaded by plaintiffs' reliance on Hernon v.
E.W. Corrigan Construction Co., 149 Ill. 2d 190 (1992). In
Hernon, the court held the building construction statute of
limitations prevailed over the general two-year personal injury
statute of limitations. Hernon, 149 Ill. 2d at 195. The court
found support for its decision in the fact that courts have
repeatedly applied the 10-year repose period of section 13-214 to
construction-related personal injury actions. The court observed
that if such actions are subject to the repose period of section
13-214(b), tort actions involving personal injuries should also
be subject to the four-year limitations period of subsection (a).

Hernon, 149 Ill. 2d at 195-96.
We are mindful of cases that have applied the four-year
repose period of the medical malpractice statute to claims
brought against local governmental units. See Rio, 104 Ill. 2d
at 365; Thomas v. Davenport, 196 Ill. App. 3d 1042, 1045 (1990).
However, these court decisions have applied the notice provision
of the Tort Immunity Act in pari materia with the repose period
of the medical malpractice statute. Since the limitations
provision of the Tort Immunity Act has the same effect and
underlying purpose of the former notice provision, the result
should be the same. That is, reading the two statutes in pari
materia, it follows that, subject to the overall four-year
limitations period, a plaintiff must file suit within the one-
year limitations period under section 8-101. Clearly, a
plaintiff could not maintain an action where the suit has already
been time-barred by a statue of repose. Gavin v. City of
Chicago, 238 Ill. App. 3d 518, 522 (1992).
Finally, we draw support for our conclusion from cases that
have held the one-year limitations period of the Tort Immunity
Act applies to medical malpractice actions brought against
publicly owned hospitals. See Feiler v. Covenant Medical Center,
232 Ill. App. 3d 1088, 1091 (1992); Watkins v. Health & Hospitals
Governing Comm'n, 78 Ill. App. 3d 468, 470 (1979). Although
Feiler and Watkins did not squarely compare the specifics of the
medical malpractice statute and the Tort Immunity Act, they both
observed that the limitations period in malpractice cases against
public defendants is one year under the Tort Immunity Act rather
than two years under the medical malpractice statute.
CONCLUSION
Plaintiffs' claims against Cook County Hospital and its
doctors for medical malpractice are governed by the one-year
limitations period in section 8-101 of the Tort Immunity Act.
Section 8-101 is more specific than section 13-212(a) of the Code
in that it applies, without exception, to any actions against
public entities and their employees. Accordingly, plaintiffs'
actions are time barred pursuant to section 8-101 of the Tort
Immunity Act. Therefore, we find the circuit court erred in
denying defendants' motions to dismiss the complaints.
Reversed.
FROSSARD, J., concurs.
TULLY, J., dissents.
JUSTICE TULLY, dissenting:
I must respectfully dissent as I believe that the two-year
limitation period contained in section 13-212(a) of the Code of
Civil Procedure (section 13-212(a)) (735 ILCS 5/13-212(a) (West
1996)) controls the case at bar. I further believe that Cleaver
v. Marrese, 253 Ill. App. 3d 778 (1993), is directly on point and
cannot be distinguished from plaintiff's case.
I agree with the majority in its recitation of the law. It
is well-established in Illinois that if there are two statutory
provisions, one general and the other particular, the particular
provision must prevail. However, I cannot accept the conclusion
that section 8-101 of the Local Governmental and Governmental
Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/8-
101 (West 1994)) prevails over section 13-212(a). Numerous
courts in Illinois have found that the statutes, such as sections
13-212 and 13-214, are more specific than section 8-101 of the
Tort Immunity Act. See Walsh v. Barry-Harlem Corp., 272 Ill. App.
3d 418 (1995); Cleaver v. Marrese, 253 Ill. App. 3d 778 (1993);
Hernon v. E.W. Corrigan Construction Co., 149 Ill. 2d 190 (1992);
Heneghan v. Sekula, 181 Ill. App. 3d 238 (1989); Desai v.
Chasnoff, 146 Ill. App. 3d 163 (1986). Unfortunately, the
majority has declined to accept the reasoning of the ample
caselaw which holds that statutes, such as section 13-212, are
the more specific statutes. The majority's reliance on Feiler
and Watkins is misguided, as both of these cases do not even
address the issue before us.
I strongly believe that a well-reasoned case directly on
point exists, which cannot be ignored or distinguished. In
Cleaver, the plaintiff filed a medical malpractice action against
a doctor, and a Hospital. The trial court dismissed the
plaintiff's complaint because the Tort Immunity Act and its one-
year statute of limitation barred the plaintiff's cause of
action. Cleaver, 253 Ill. App. 3d at 779. On appeal, the
appellate court reversed, and held that section 13-212 more
specifically applied to the present case, which allowed the
plaintiff to file within a two-year statute of limitations.
Cleaver, 253 Ill. App. 3d at 783. The Cleaver Court articulated
that:
[we] must decided which of the two
limitations periods applies to this medical
malpractice claim. Section 8-101 of the Tort
Immunity Act applies to any local entity,
while section 13-212 of the Code of Civil
Procedure applies specifically to physicians,
dentists, registered nurses, or hospitals.
Further, section 8-101 applies to all civil
actions, while section 13-212 only applies to
actions arising out of patient care. We
further note that section 13-212 of the Code
was enacted subsequent to section 8-101 of
the Tort Immunity Act. This fact is
important in that the rule that a specific
statutory provision prevails over a general
provision is especially applicable where the
specific provision was enacted more recently.
[Citation.]" Cleaver, 253 Ill. App. 3d at
782-3.
Section 8-101 of the Tort Immunity Act has an excessively broad
application since it covers thousands of public municipalities
throughout the State and covers all types of civil suits against
local government. Therefore, as section 13-212(a) covers only
medical malpractice claims, I find this to be the more specific
provision, and would apply section 13-212(a) to this particular
case. The more specific malpractice statute is controlling here;
the one-year requirement for filing a law suit referred to in
section 8-101 is not.
For these reasons, I respectfully dissent from the
majority's view and would affirm the judgment of the circuit
court of Cook County.