The opinion
JUSTICE TULLY, dissenting
I must respectfully dissent as I believe that the two-year limitations 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 case law 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 limitations 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:
"[We] must decide 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 782-83 .
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 lawsuit 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.