# Levy v. McKiel

> Appellate Court of Illinois · July 7, 1989 · 185 Ill. App. 3d 240

URL: https://www.frixlaw.com/law-library/cases/9540410

## Case

- **Full name:** LAWRENCE B. LEVY, Plaintiff-Appellant, v. CHARLES McKIEL, Defendant-Appellee (Lake Forest Hospital, Defendant)
- **Court:** Appellate Court of Illinois
- **Decided:** July 7, 1989
- **Citations:** 185 Ill. App. 3d 240; 133 Ill. Dec. 405; 541 N.E.2d 242; 1989 Ill. App. LEXIS 1036
- **Precedential status:** Published
- **Opinion:** Dissent by McLaren
- **Judges:** Dunn, McLaren
- **Cited by:** 13 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/9540410

## How later opinions describe it (automated extraction)

- stating that by providing immunity from civil damages, the only remedy known to common-law causes of action, section 10.2 effectively abrogates the right to sue for such claims in cases where it applies

## Opinion text

JUSTICE McLaren, dissenting:
I have no disagreement with the majority’s dissertation as to the law set forth in their opinion. I disagree with their conclusion that the remedies being abrogated are so insubstantial as to categorize the amendment as being procedural rather than substantive.
Legislative amendments and statutes are presumed to act prospectively since retroactivity is not favored. (Cruz v. Puerto Rican Society (1987), 154 Ill. App. 3d 72, 75 ; Matviuw v. Johnson (1982), 111 Ill. App. 3d 629, 632 .) Statutes are deemed to operate prospectively unless the language of the statute clearly requires retroactive application. (Board of Trustees v. Burris (1987), 118 Ill. 2d 465, 476 .) In the absence of such statutory language, the intent of the legislature determines whether statutes should operate prospectively or retrospectively. Moore v. Jackson Park Hospital (1983), 95 Ill. 2d 223, 235 ; DeSeve v. Ladd Enterprises, Inc. (1985), 137 Ill. App. 3d 796, 800 .
The general rule does not apply when the statute or amendment only relates to procedural matters, unless the procedural rule affects or destroys a substantive, or “vested right.” (See Matviuw, 111 Ill. App. 3d at 632 ; Cruz, 154 Ill. App. 3d at 75 .) Procedural matters are those that relate to the rules of discovery, evidence, and privilege. (Niven v. Siqueira (1985), 109 Ill. 2d 357, 364 ; People ex rel. Brown v. Bloodworth (1987), 155 Ill. App. 3d 901, 905 .) Rights which did not exist at common law are the only rights that may be abrogated by retrospective application of an amendment. (Cruz, 154 Ill. App. 3d at 76 .) Yet even when the legislature intends that an amendment have retroactive effect, the enactment should not be so applied if it would cause unjust or unreasonable results. DeSeve, 137 Ill. App. 3d at 800 .
The amendment does not state that it is to have retroactive effect. Therefore, one must discern whether the legislature intended such effect. It is clear from the words of the statute that the legislature wanted to encourage doctors and other hospital personnel to report instances of inadequate treatment by doctors, nurses and technicians without the fear of a common-law tort suit. Retroactive application of this statute will not promote this legislative interest because the decision of the review board had previously been made in any case which arose before the amendment. Clearly, this statute is directed at encouraging future disclosures. Thus, I conclude that this statute should not have been applied retroactively because the amendment did not clearly, by express language or necessary implication, indicate that the legislature intended a retroactive application. Clark Oil & Refining Corp. v. Johnson (1987), 154 Ill. App. 3d 773, 781 .
In addition, I disagree with the Appellate Court for the First District’s characterization of section 10.2, in Rodriguez-Erdman v. Ravenswood Hospital Medical Center (1987), 163 Ill. App. 3d 464 , as affecting only a remedy and not a right. The only remedy for common-law torts is money damages. If the legislature has taken away the only remedy available, it has also taken away the right to sue in court. Clearly, the legislature intended to shield hospital personnel reporting on health care from common-law tort suits such as libel or negligence. Thus, the statute repeals the substantive right to sue. Consequently, the statute cannot apply retroactively. Thus, I respectfully dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9540410. Public record. Not legal advice.