# Hayes v. Mercy Hospital & Medical Center

> Illinois Supreme Court · July 3, 1990 · 136 Ill. 2d 450

URL: https://www.frixlaw.com/law-library/cases/9527129

## Case

- **Full name:** BRENDA HAYES, Adm’r of the Estate of Vincent Hayes, v. MERCY HOSPITAL AND MEDICAL CENTER Et Al. (The City of Chicago Et Al., Appellants)
- **Court:** Illinois Supreme Court
- **Decided:** July 3, 1990
- **Citations:** 136 Ill. 2d 450; 145 Ill. Dec. 894; 557 N.E.2d 873; 88 A.L.R. 4th 321; 1990 Ill. LEXIS 80
- **Precedential status:** Published
- **Opinion:** Concurrence by Ryan
- **Judges:** Miller, Ryan, Clark, Calvo, Ward
- **Cited by:** 129 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9527129

## How later opinions describe it (automated extraction)

- concluding that medical malpractice statute of repose governs actions for contribution for injuries arising out of patient care because the suit for contribution "exposes insurance companies to the same liability as if the patient [had] brought a direct action against the insu…
- concluding that action for contribution against physician for injuries arising out of patient care is "action for damages" under medical malpractice statute of repose and subject to four-year statute of repose in medical malpractice statute
- holding an action for contribu tion is an “action for damages” under Illinois’s medical malpractice statute of repose because the basis for a contributor’s liability rests in tort to the injured party
- holding that the Illinois Medical Malpractice Act statute of repose barred all actions, whether in law or equity, after the four year time period expired
- holding an action for contribu *74 tion is an “action for damages” under Illinois’s medical malpractice statute of repose because the basis for a contributor’s liability rests in tort to the injured party

## Opinion text

JUSTICE RYAN, specially concurring:
It is apparent that my colleague, Justice Calvo, does not agree with the holding of this court in Anderson v. Wagner (1979), 79 Ill. 2d 295 . As the author of the opinion in Anderson, which this court adopted without dissent, I wish to respond to some of the statements and observations made by my colleague in his dissent in this case. Therefore, I write this special concurrence.
First, I must respond to the statements that this court has “abdicated its role as protector of those unknowingly injured by medical malpractice” and that our holdings are intended to insure that “the physician can maintain a comfortable standard of living,” or that “the insurance industry can maintain its profit margin,” all at the expense of an injured person. (136 Ill. 2d at 473-74.) I find these statements inappropriate. In support of these claims my colleague cites Anderson, in which we held constitutional the statute of repose in medical malpractice cases. Anderson was not an aberration in the law, adopted by a reactionary court interested only in assuring profit for physicians and insurance companies to the detriment of an injured person. Far from being an aberration, Anderson followed established precedent and was extensively researched. The many citations contained therein demonstrate that the statute under consideration in that case was consistent with statutes enacted in other States. (Anderson, 79 Ill. 2d at 308-10 .) And, as stated in Anderson, “[a]II of the cases that our research found have sustained the validity of the statute.” Anderson, 79 Ill. 2d at 310 .
Moreover, our role as State supreme court justices is not that of the protector of the unknowingly injured or any class of persons, nor do we have a special responsibility to insure that such plaintiffs recover in tort. We have a responsibility to interpret the law as it applies in the cases before us and to develop our common law, regardless of which party may prevail. This does not imply that we must treat plaintiffs more or less favorably than defendants, be they doctors, insurance companies or individuals. The legislature passed laws regarding medical malpractice lawsuits. We reviewed them in light of a constitutional challenge and upheld their validity. In doing so we were not, and indeed should not have been, influenced by the effect of our opinion on anyone’s profit margin or standard of living.
My colleague’s dissent is, essentially, divided into two parts. The first portion contends that this court has erred in applying the statute of repose found in section 13 — 212(a) of the Illinois Code of Civil Procedure (hereafter the medical malpractice statute of repose) to an action brought against a doctor under the Contribution Act. (136 Ill. 2d at 473-74.) The analysis points out perceived errors in reasoning and asserts what Justice Calvo believes to be the proper interpretation of the statute involved. This is the intended purpose of dissent, and it is an important aspect of this court’s decision-making function. However, in this case, the majority of the court has concluded, for the reasons stated in the opinion, that the statute of repose does apply in this situation and I agree with that interpretation. The bulk of the dissent, however, then goes on to address an issue not raised in the case, namely, that the medical malpractice statute of repose contained in the Illinois Code of Civil Procedure and, presumably, any other statute of repose, is unconstitutional. (136 Ill. 2d at 475-76.) This is, in reality, a dissent to Anderson.
I specially concur because I believe that Anderson was properly decided, that my colleague’s interpretations of the appropriate standard of review and of our constitutional provisions are incorrect, and that the cases relied upon by my colleague from other jurisdictions are the minority view and are clearly distinguishable. Justice Calvo cites cases from eight States which have declared statutes of repose in medical malpractice statutes unconstitutional, and cases from eight other States which have declared statutes of repose in products liability or architects and builders statutes unconstitutional. Although he notes that his list is not all-inclusive, he contends that the trend in the United States is to declare such statutes unconstitutional. I do not agree that any such trend exists. In Anderson, we stated that up until that time, all the jurisdictions had sustained the validity of the statutes. (Anderson, 79 Ill. 2d at 310 .) Since that time, the great majority of the case law still has held these statutes constitutional. Cases on the issue affirming the constitutionality of statutes of repose in medical malpractice actions, other than those cited in Anderson, include: Bowlin Horn v. Citizens Hospital (Ala. 1983), 425 So. 2d 1065 (medical malpractice statute does not violate equal protection); Dunn v. St. Francis Hospital, Inc. (Del. 1979), 401 A.2d 77 (medical malpractice statute does not violate open courts provision); Holmes v. Iwasa (1983), 104 Idaho 179 , 657 P.2d 476 (statute does not violate Federal equal protection or due process); Johnson v. St. Vincent Hospital, Inc. (1980), 273 Ind. 374 , 404 N.E.2d 585 (statute does not violate State or Federal due process or equal protection); Koppes v. Pearson (Iowa 1986), 384 N.W.2d 381 (does not violate State or Federal equal protection); Stephens v. Snyder Clinic Association (1981), 230 Kan. 115 , 631 P.2d 222 (does not violate State or Federal equal protection); Valentine v. Thomas (La. App. 1983), 433 So. 2d 289 (statute does not violate State equal protection, due process, or open courts); Hill v. Fitzgerald (1985), 304 Md. 689 , 501 A.2d 27 (does not violate open courts); Ross v. Kansas City General Hospital & Medical Center (Mo. 1980), 608 S.W.2d 397 (does not violate State or Federal due process or equal protection); Colton v. Dewey (1982), 212 Neb. 126 , 321 N.W.2d 913 (does not violate State due process or open courts or Federal equal protection); Armijo v. Tandysh (App. 1981), 98 N.M. 181 , 646 P.2d 1245 (does not violate Federal equal protection or due process); Smith v. Smith (1987), 291 S.C. 420 , 354 S.E.2d 36 (State or Federal equal protection is not violated); Allen v. Intermountain Health Care, Inc. (Utah 1981), 635 P.2d 30 (does not violate State equal protection). For a list of 23 other jurisdictions which have held either products liability statutes of repose or repose statutes concerning the construction industry constitutional, see Note, The Constitutionality of Statutes of Repose: Federalism Reigns, 38 Vand. L. Rev. 627 , 657-64 (1985), and Note, Repose vs. Right-To-A-Remedy: Physician vs. Patient Under the Ohio Constitution, 57 U. Cin. L. Rev. 423 , 443 n.145 (1988). Merely listing these cases is insufficient persuasion on this issue; rather, it is the legal reasoning that is determinative, and I believe that my colleague’s legal reasoning is flawed.
Analysis of a challenge to legislation as violative of either State or Federal due process or equal protection involves classifying the interest involved, and applying either a strict scrutiny, an intermediate level, or a rational basis review. Under the Federal Constitution, strict scrutiny applies when the legislation affects a fundamental right, such as the right to vote (Kramer v. Union Free School District No. 15 (1969), 395 U.S. 621 , 23 L. Ed. 2d 583 , 89 S. Ct. 1886 ), or if a suspect class is involved (see Graham v. Richardson (1971), 403 U.S. 365 , 29 L. Ed. 2d 534 , 91 S. Ct. 1848 (alienage); Loving v. Virginia (1967), 388 U.S. 1 , 18 L. Ed. 2d 1010 , 87 S. Ct. 1817 (race)). Intermediate scrutiny applies if legislation distinguishes on the basis of illegitimacy or gender. (See Mississippi University for Women v. Hogan (1982), 458 U.S. 718 , 73 L. Ed. 2d 1090 , 102 S. Ct. 3331 .) The rational basis test is applied to economic and social welfare legislation not affecting a suspect class or a fundamental right. See Barwick v. Celotex Corp. (4th Cir. 1984), 736 F.2d 946, 958 .
The legislation in question concerns an injured person’s right to recover damages for bodily injury. This is an economic right, and thus the rational basis test should apply. Certainly, under the Federal due process and equal protection clauses, the statute involved would be reviewed utilizing the rational basis test and would withstand a constitutional challenge. (See Turkington, Constitutional Limitations on Tort Reform: Have the State Courts Placed Insurmountable Obstacles in the Path of Legislative Responses to the Perceived Liability Insurance Crisis?, 32 Vill. L. Rev. 1299 , 1310-13 (1987); Note, The Unconstitutionality of Medical Malpractice Statutes of Repose: Judicial Conscience Versus Legislative Will, 34 Vill. L. Rev. 397 , 407-09 (1989) (“as long as the rational basis test is the standard of judicial review for medical malpractice statutes of repose challenged under the due process and equal protection clauses of the fourteenth amendment, it is unlikely that the statutes will be found violative of the United States Constitution”).) Of the various types of statutes of repose, nearly every court which has applied a rational basis test to the constitutional challenge has held them constitutional. (See Note, The Constitutionality of Statutes of Repose: Federalism Reigns, 38 Vand. L. Rev. 627 , 635-44 (1985).) We have construed provisions of our constitution consistent with Federal interpretations when similar provisions using similar language are found in the Federal Constitution. (People v. Tisler (1984), 103 Ill. 2d 226, 242-45 ; People v. Jackson (1961), 22 Ill. 2d 382, 387 .) Our due process and equal protection provisions are similar to those found in the Federal Constitution. (See Ill. Const. 1970, art. I, §2, Constitutional Commentary, at 109 (Smith-Hurd 1971).) Therefore, in Anderson, we applied a rational basis test and, consistent with a Federal interpretation of the issue and other States’ analysis, we held that the statute of repose did not violate due process or equal protection rights.
My colleague, however, contends that we have abdicated our constitutional responsibility by giving deference to the will of the legislature on this issue. In the mid-1970s a perceived medical malpractice insurance crisis spurred legislatures throughout the country to enact numerous laws in hopes of curtailing rising insurance costs and insuring the availability of health care services. The legislation involved in Anderson was enacted in response to this crisis, and, as mentioned, we reviewed it under a rational basis standard. In reviewing the constitutionality of the legislation involved under the rational basis standard, we gave deference to findings of the legislature. We, therefore, deferred to the findings that there was a crisis necessitating legislation. Justice Calvo contends now that there was no medical insurance crisis and he cites empirical studies which enforce his claim that statutes of repose have negligible effect on insurance premiums. However, in cases such as this, States are not required to convince the courts of the correctness of their legislative judgments in light of empirical evidence regarding effectiveness of legislation. (Minnesota v. Clover Leaf Creamery Co. (1981), 449 U.S. 456, 463-64 , 66 L. Ed. 2d 659, 668-69 , 101 S. Ct. 715, 723-24 .) Moreover, since the enactment of the laws involved in Anderson, the legislature has twice amended the statutes and has not disturbed the provision relating to statutes of repose. The legislature must also be aware of the claims of Justice Calvo regarding the effectiveness of the statute of repose; nevertheless, it has been maintained in the act. This is a public policy decision which is appropriate for the legislature. Therefore, I cannot agree that our review of the issue was improper, even in light of the statements of my colleague. Nor can I agree with the conclusion that in Anderson and other cases this court has blithely ignored its responsibility in the face of legislative enactments. We have, on numerous occasions in the past, declared legislation unconstitutional when, after reviewing it under the appropriate standards, we determined that it did not survive a challenge to either the Illinois or the United States Constitution. The legislation may not have been wise or the most effective way to deal with the problem, but it was within the legislature’s power to enact.
The dissent relies extensively on Kenyon v. Hammer (1984), 142 Ariz. 69 , 688 P.2d 961 , for what it believes is the appropriate analysis of the issue. (136 Ill. 2d at 485-86.) Kenyon is an aberration from the holding of other courts addressing statutes of repose because it found that there was a fundamental right involved and applied a strict scrutiny analysis. The court found a fundamental right based on three provisions within the Arizona State Constitution. First, the open courts provision prohibited abrogation of “ ‘the right of action to recover damages’ ” and required that “ ‘the amount recovered shall not be subject to any statutory limitation.’ ” (Kenyon, 142 Ariz. at 79 , 688 P.2d at 971 , quoting Ariz. Const, art. 18, §6.) Second, the equal protection clause of that State provides: “No law shall be enacted granting to any citizen, class of citizens *** privileges or immunities which, upon the same terms, shall not equally belong to all citizens ***.” (Kenyon, 142 Ariz. at 77 , 688 P.2d at 969 , citing Ariz. Const. art. 2, §13.) Third, that State’s Constitution provides that “[n]o law shall be enacted in this state limiting the amount of damages to be recovered for causing the death or injury of any person.” (Kenyon, 142 Ariz. at 79 , 688 P.2d at 971 , citing Ariz. Const, art. 2, §31.) From these the court concluded that in Arizona there is a fundamental right to recover damages for bodily injury. Our constitution does not contain this language, nor is there an indication from our constitution or case law that a fundamental right is involved. The analysis involved in Kenyon is also not persuasive under a rational basis review of the statute. Under a strict scrutiny analysis, a statute which impinges on a fundamental right is presumed unconstitutional; however, this presumption does not attach under a rational basis test. Moreover, Kenyon relied on statistical analysis of the effect of statutes of repose. As mentioned, this is not appropriate in a rational basis test. There was a legislative determination that statutes of repose should be applied in medical malpractice cases, as well as other cases, and it is enough, under the standard of review, that the legislature reasonably perceived the existence of an insurance crisis and that statutes of repose are an effective response. Also, besides responding to the increasing insurance premiums, these statutes serve the additional purposes of preventing the assertion of stale claims and protecting defendants from uncertain and protracted liability.
I thus do not find Kenyon persuasive on the issue. For similar reasons the cases from New Hampshire and North Dakota, which relied on a heightened standard of review, do not compel the conclusion that Anderson was wrongly decided. However, the Ohio Supreme Court, in Gaines v. Preterm-Cleveland, Inc. (1987), 33 Ohio St. 3d 54 , 514 N.E.2d 709 , did hold unconstitutional the statute of repose utilizing a rational basis test. This is, apparently, the only case which has done so using this test. The precedent leading up to Gaines, though, does distinguish that case. Prior to Gaines, the Ohio court had held that the statute of repose would not apply retroactively to malpractice cases where the injury arose prior to the effective date of the statute, but which was not discovered until four years after the act or occurrence constituting the alleged malpractice. (Deskins v. Young (1986), 26 Ohio St. 3d 8 , 496 N.E.2d 897 .) Also, in Mominee v. Scherbarth (1986), 28 Ohio St. 3d 270 , 503 N.E.2d 717 , the court held the statute unconstitutional with respect to minors. Last, as applied to persons who did not know or could not reasonably have known of their injuries, the court held the statute violated the right-to-a-remedy provision of the Ohio Constitution. (Hardy v. VerMeulen (1987), 32 Ohio St. 3d 45 , 512 N.E.2d 626 .) Therefore, in light of its previous holdings which had considerably watered down the effectiveness of the provision, it was not a wide leap for the Ohio court to determine the statute was also violative of equal protection and due process.
Other courts have found statutes of repose violative of their State’s certain remedy, open courts or right-to-a-remedy provision. This provision allows the court to invalidate the provision with no balancing test, as is required in an equal protection or due process issue, because, as my colleague states, the statute “either denies the right [to a certain remedy] or it does not.” 136 Ill. 2d at 494.
Mega v. Holy Cross Hospital (1986), 111 Ill. 2d 416, 423-25 , articulated this court’s interpretation of the certain remedy provision found in our 1970 Constitution (Ill. Const. 1970, art. I, §12) and its predecessor, the 1870 Constitution (Ill. Const. 1870, art. II, §19). That provision has been interpreted as an expression of a philosophy, but it does not mandate that every injury must be compensated or that restrictions on the requirements necessary for recovery may not be imposed. In Mega, we concluded that the philosophy expressed in the provision may be tempered by the legislature’s choice of a period of repose. My colleague’s interpretation of the provision is wholly at odds with this court’s precedent, and I am unconvinced by his reasoning that repose clauses are unconstitutional.
Thus, I conclude that my colleague’s attack on the statute of repose is not well taken. It is not supported by the weight of authority in this country. The cases from other jurisdictions, relied on by my colleague, are distinguishable. Most of them are based on the right-to-remedy provisions of the constitutions of those States, whereas the right-to-remedy of our constitution has always been held not to confer a right, but to be aspirational. Anderson was properly decided at the time of the adoption of that opinion, and considering the cases which have held to the contrary since Anderson, the above analysis discloses that the decision in Anderson is still sound. For this court to reach a decision contrary to Anderson, it would be necessary to overrule a substantial body of the law of this State involving several different areas. I have written this concurrence so that the dissent of my colleague may be viewed in light of the above analysis.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9527129. Public record. Not legal advice.