Thompson Ex Rel. Thompson v. Franciscan Sisters Health Care Corp.

578 N.E.2d 289, 218 Ill. App. 3d 406, 161 Ill. Dec. 162, 1991 Ill. App. LEXIS 1467
CourtAppellate Court of Illinois
DecidedAugust 28, 1991
Docket3-90-0880
StatusPublished
Cited by8 cases

This text of 578 N.E.2d 289 (Thompson Ex Rel. Thompson v. Franciscan Sisters Health Care Corp.) is published on Counsel Stack Legal Research, covering Appellate Court of Illinois primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Thompson Ex Rel. Thompson v. Franciscan Sisters Health Care Corp., 578 N.E.2d 289, 218 Ill. App. 3d 406, 161 Ill. Dec. 162, 1991 Ill. App. LEXIS 1467 (Ill. Ct. App. 1991).

Opinion

JUSTICE GORMAN

delivered the opinion of the court:

The plaintiff, Lori Ann Thompson, a minor, by Barbara A. Thompson, her mother and next friend, appeals from the dismissal of her medical malpractice complaint by the circuit court. The defendants are Franciscan Sisters Health Care Corporation, doing business as St. Joseph’s Medical Center, and physicians T. Chris-tiansen and John J. McLaughlin, as individuals and doing business as Joliet Medical Group, Ltd. The circuit court dismissed the complaint for failure to comply with the statute of limitations for medical malpractice cases, section 13 — 212 of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 212). We affirm.

On December 31, 1976, plaintiff was born. Complications arose during her birth, and defendants allegedly did not respond to those complications in a timely and proper manner. Plaintiff alleges that due to defendants’ negligence she has been permanently and severely damaged. On July 26, 1990, plaintiff filed the present lawsuit. On November 14, 1990, after a hearing on defendants’ motions to dismiss, the circuit court dismissed plaintiffs complaint with prejudice for failure to comply with section 13 — 212 of the Code of Civil Procedure. On December 13, 1990, plaintiff filed a notice of appeal.

The issues raised on appeal by the plaintiff are:

(1) whether section 13 — 212(b) unconstitutionally deprives minor victims of medical malpractice of access to court and recovery for damages, in violation of the due process clauses of the Federal and State constitutions;
(2) whether section 13 — 212(b) deprives minor victims of medical malpractice of equal protection of the laws as guaranteed by the Federal and State constitutions;
(3) whether section 13 — 212(b) unconstitutionally restricts free and open access to court for the vindication of the rights of minor victims of medical malpractice, in violation of the first amendment to the Federal Constitution and article I, section 12, of the State Constitution; and
(4) whether section 13 — 212(b) violates the bar against special legislation contained in the State Constitution.

Section 13 — 212(b) of the Code of Civil Procedure (Ill. Rev. Stat. 1989, ch. 110, par. 13 — 212(b)) states 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.” (Emphasis added.)

Application of the terms of this statutory provision to the facts of this case indicates that plaintiff had until July 20, 1990, by which to timely file her lawsuit. Since the lawsuit was filed on July 26, 1990, under the terms of this provision it was filed too late. On appeal the plaintiff has not contended that a statutory limitation provision other than section 13 — 212(b) governs this case, nor has she contended that the circuit court in applying this provision to the facts of this case has arrived at an erroneous conclusion. Therefore, we will simply address the constitutional issues the plaintiff has raised as to section 13 — 212(b).

We note that various challenges to the constitutionality of section 21.1 of the Limitations Act (Ill. Rev. Stat. 1977, ch. 83, par. 22.1), a precursor of section 13 — 212 of the Code of Civil Procedure, were considered by the Illinois Supreme Court in Anderson v. Wagner (1979), 79 Ill. 2d 295, 402 N.E.2d 560. While Anderson involved cases with plaintiffs who were adults at the time the alleged medical malpractice took place, its reasoning can be used in the present case.

We consider first whether application of section 13 — 212(b) violates plaintiffs due process rights. Plaintiff essentially argues that it is fundamentally unfair that a minor’s cause of action should ever be barred by the statute of limitations during minority, and that, therefore, the statute of limitations cannot be so applied without violating the due process clauses of the Federal and State constitutions. Plaintiff has cited no case that has used such broad reasoning to find that application of the statute of limitations had violated one of the due process clauses.

After discussing the so-called medical malpractice insurance crisis of the early 1970’s and legislative responses to it, the court in Anderson stated:

“Although such a result — a cause of action barred before its discovery — seems harsh and unfair, the reasonableness of the statute must be judged in light of the circumstances confronting the legislature and the end which it sought to accomplish. We have noted above that various reports, commissions, and authors recommended that the ‘long tail’ exposure to malpractice claims brought about by the discovery rule be curtailed by placing an outer time limit within which a malpractice action must be commenced. *** It has not been demonstrated that the legislative action in establishing the 4-year outer limit within which to file a complaint for medical malpractice is unreasonable. We thus find no due process violation.” Anderson, 79 Ill. 2d at 312, 402 N.E.2d at 568.

The prior law permitted filing suit 20 years (or sometimes longer) after alleged medical malpractice during childbirth, and it was not unreasonable for the legislature to cut down this “long tail” of liability so as to lend stability to the pricing of medical malpractice insurance for medical personnel involved in childbirths. The reasoning of Anderson leads us to conclude that the legislature’s reduction of the limitations period to eight years after the wrongful conduct (or three years after the effective date of the amendment) is not unreasonable and does not result in a due process violation.

No authority has been presented to us holding that one or both of the due process clauses require that the statute of limitations protect an injured minor from the failure of a parent or guardian to pursue the minor’s interest in a timely fashion. The 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.

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Bluebook (online)
578 N.E.2d 289, 218 Ill. App. 3d 406, 161 Ill. Dec. 162, 1991 Ill. App. LEXIS 1467, Counsel Stack Legal Research, https://law.counselstack.com/opinion/thompson-ex-rel-thompson-v-franciscan-sisters-health-care-corp-illappct-1991.