Jurisdictional Statement — Woodward v. Burnham City Hospital

Gupreme Court, U,

D

JUN 24 19809

IN THE MICHAEL RODAK, JR., CLERR

Supreme Court of the Gnited States

OCTOBER TERM, 1979

"79-2033

CAROL C. WOODWARD, As ADMINISTRATOR OF THE ESTATE

or CHARLES C. WOODWARD, DECEASED, AND CAROL

C. WOODWARD, INDIVIDUALLY,

Appellant,

vs.

BURNHAM CITY HOSPITAL, A CORPORATION, AND

GEORGE GREEN anpD STAN J. BOBOWSKI,

Appellees.

ON APPEAL FROM THE SUPREME COURT OF ILLINOIS

JURISDICTIONAL STATEMENT

LEONARD M. RING

SHELDON H. NAHMOD

LEONARD M. RING

& ASSOCIATES

111 West Washington Street

Chicago, Illinois 60602

(312) 332-1765

Attorneys for Appeilant

Gunthorp-Warren Printing Company, Chicago e Financial 6-6565

TABLE OF CONTENTS.

PAGE

iy NE . .s acre a etek ace ee a a ee 1

NG A 55 cee sb pb esaat nna esd Oe ee 2

I ea ar ae ee ee 2

ERRAND eat oe

Constitutional Provisions and Statutes Involved......... 3

en Gr CD: ee ee ee ce ewe nee 4

Rae Gees Are DUO oo ois ak os bk a he cee eens 5

MINN oa Ne ete ee ee 6 eee al eee vo

FE 5 53 Oka S's aoe e ween eon ee anc eke ee Al

Decision of the Illinois Supreme Court, dated October

ec BE Mies wR OLR ORG hae bE he OE Al

pT eee eee ee ee rere A27

Illinois Supreme Court denial of petition for rehear-

Bee, Gated Biarchh 20, TINO aw occ a vee sawacas A27

| ee eer. Pere rere ee eee A28

Ruling of the Trial Court, dated August 15, 1977... A28

Final order of the Trial Court, dated August 22,

OEE cbc caneae <ada he pees ene teas Meee A29

Plaintiff's Response to Defendant Burnham City Hos-

pital’s Motion to Dismiss, filed June 10, 1977.... A30

Plaintiffs Response to Defendant Green’s Motion for

Summary Dismissal, filed June 10, 1977........ A32

pk Ae eee ret, gre rer ry Terres ee A34

Notice of Appeal, filed June 20, 1980............ A34

Proof of Service of Notice of Appeal, filed June 20,

PN 6 6. Raa ea a ee ee A35

CITATIONS.

Cases.

Arneson v. Olson, 270 N.W.2d 125 (S.Ct. N. Dak.

ELS fg back dina b-W 6's. 00. 6-04:0'0:6 o'a 9 010 0% 6, 11

Board of Regents v. Roth, 408 U. S. 564 (1972)........ 13

Boddie v. Connecticut, 401 U.S. 371 (1971).......... 8, 14

Bounds v. Smith, 430 U. S. 817 (1977)............... 8,14

Frontiero v. Richardson, 411 U.S. 677 (1973)........ 9,10

Goldberg v. Kelly, 397 U.S. 254 (1970)............4.. 13

Jones v. State Board of Medicine, 97 Idaho 859, 555 P. 2d

a an sd wole yess} 79 o's 00 abs s 6, 9, 11

Lamb v. Powder River Livestock Co., 132 F. 434 (8th

ee keeles cee cceseceecs 13

Levy v. Louisiana, 391 U.S. 68 (1968).............. 11

McDonald v. Board of Election Commissioners, 394 U. S.

ee Lehi who y.é'by-sia'd-s e's cies rece 11

McGinnis v. Royster, 410 U.S. 263 (1973)........... 12

Memorial Hospital v. Maricopa County, 415 U.S. 250

EE a 11

ES) GD 11

San Antonio Indep. School Dist. v. Rodriquez, 411 U.S.

PREC T CUR bh ee bebecncaadccvocvasccceee 8,11

Shapiro v. Thompson, 394 U. S. 618 (1969)........ 8, 10, 11

United States v. Kubrick, 100 S. Ct. 352 (1979)....... 6

Wangler Boiler and Sheet Metal Works v. Industrial

Pn ee Oe, BEG, BOR (A919)... cece cc cvewe 13

Weber v. Aetna Casualty & Surety Company, 406 U. S.

EEE 12

iii

Wilson v. Iseminger, 185 U.S. 55 (1902)............. 13

Zablocki v. Redhail, ........ 434 U.S. 374 (1978)....... 12

Laws.

Cal. Civ. Pro. Code Sec. 340.5 (West Cumm. Supp.

SEE GUki0 8 Sade ke aos ek pe ok kasetebe > bebe eat 5

ee es es Os a I Oe a cs, oa cece ceuaween 15

Ill. Rev. Stat. 1976 Supp. ch. 83, Sec, 22.1....... 1,2, 3, 4,5

Tex. Rev. Civ. Stat. Ann. art. 4590i, Sec. 10.01 (Vernon

i EOL EY Pee ee Pe ee on 5

Miscellaneous.

Illinois Insurance Laws Study Commission, June 1975,

Insurance Services Office, Special Malpractice Review:

1974 Closed Claims Survey, Preliminary Analysis of Sur-

vey Results 25-26 (Dec. 1, 1975)... 2. cccccccvccces 12

Report of the Secretary of H.E.W.’s Commission on

Medical Malpraetice, p. 12 (1973)............ car ee 9

IN THE

Supreme Court of the Gnited States

OCTOBER TERM, 1979

CAROL C. WOODWARD, As ADMINISTRATOR OF THE ESTATE

or CHARLES C. WOODWARD, DECEASED, AND CAROL

C. WOODWARD, INDIVIDUALLY,

Appellant.

vs.

BURNHAM CITY HOSPITAL, A CORPORATION, AND

GEORGE GREEN aAnp STAN J. BOBOWSKI,

Appellees.

ON APPEAL FROM THE SUPREME COURT OF ILLINOIS

JURISDICTIONAL STATEMENT.

Appellant Carol C. Woodward, as Administrator of the Estate

of Charles C. Woodward, deceased, and individually, appeals

from the final judgment of the Supreme Court of Illinois, dated

October 2, 1979, holding that Ill. Rev. Stat., 1976, ch. 83 sec.

22.1 (hereafter called Section 22.1 of the Illinois Limitations

Act) is not unconstitutional (either facially or as applied) as

being violative of the Equal Protection and Due Process Clauses

of the United States Constitution. Section 22.1 provides an

absolute four-year limitations period for malpractice actions

against physicians and hospitals, regardless of patient discovery

of injury.

OPINIONS BELOW

The consolidated opinion of the Illinois Supreme Court is

reported in 79 Ill. 2d 295, under caption Anderson v. Wagner,’

and is reproduced in Appendix A at pp. Al-26.

The Supreme Court’s letter reporting denial of a petition for

rehearing is reproduced in Appendix B at p. A27. The panel

decision of the Fourth District Appellate Court is reported as

Woodward v. Burnham City Hospital, 60 Ill. App. 3d 285

(1979). The ruling and final order of the trial court are un-

reported but are reproduced in Appendix C at pp. A28, 29.?

JURISDICTION

The jurisdiction of this Court is invoked under 28 U.S.C.

Sec. 1257(2).

The judgment of the Supreme Court of Illinois, sustaining

the constitutionality of Section 22.1 of the Illinois Limitations

Act against equal protection and due process challenges, was

entered on October 2, 1979. A petition for rehearing was

timely filed and was denied on March 28, 1980.

This appeal is being docketed in this Court within 90 days

from the denial of rehearing below.

~

QUESTIONS PRESENTED

Whether Section 22.1 of the Illinois Limitations Act, which

provides an absolute four year limitations period for malprac-

tice actions against physicians and hospitals but not other

health care providers, violates the Equal Protection Clause of

1. Woodward was consolidated with the earlier filed Anderson

case by order of the Illinois Supreme Court.

2. Plaintiff's Responses to the defendants’ motions to dismiss,

raising federal constitutional questions also are not reported but are

reproduced in Appendix C at pp. A30-33.

3

the Fourteenth Amendment because the classifications created

are neither justified by a compelling state interest nor necessary,

and, alternatively, because they do not substantially further a

legitimate legislative purpose.

Whether Section 22.1 of the Illinois Limitations Act, which

provides an absolute four year limitations period for malprac-

tice actions against physicians and hospitals, violates the Due

Process Clause of the Fourteenth Amendment because, as ap-

plied to patients who neither know of, have reason to know

of, nor can reasonably discover within four years injuries caused

by physicians and hospitals, Section 22.1 takes away, without

notice, their right to compensation and destroys their right of

access to the courts.

CONSTITUTIONAL PROVISIONS AND

STATUTES INVOLVED

Fourteenth Amendment, United States Constitution:

(NJor shall any State deprive any person of life, liberty, or

property, without due process of law; nor deny to any

person within its jurisdiction the equal protection of the

laws.

Ill. Rev. Stat., 1976 Supp., ch. 83, par. 22.1 (Section 22.1 of

the Illinois Limitations Act):

22.1 Tort or breach of contract actions arising from

patient care.

No action for damages for injury or death against any

physician 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 2 years after the date on which the claimant knew, or

through the use of reasonable diligence should have known,

or received notice in writing of the existence of the injury

or death for which damages are sought in the action, which-

ever of such date occurs first, but in no event shall such

action be brought more than 4 years after the date on

which occurred the act or omission or occurrence alleged

4

in such action to have been the cause of such injury or

death.

If the person entitled to bring the action is, at the time the

cause of action occurred, under the age of 18 years, or

insane, or mentally ill, or imprisoned on criminal charges,

the period of limitations does not begin to run until the

disability is removed.

STATEMENT OF THE CASE

Charles and Carol Woodward filed suit against appellees,

Burnham City Hospital and two doctors, for malpractice on

December 30, 1976, alleging an erroneous diagnosis of tissue

taken from appellant, Charles Woodward, on November 27,

1965. As a result of the erroneous diagnosis, massive steroid

treatments were administered for over ten years, causing Charles

Woodward to develop a condition known as steroid myopathy

which necessitated the amputation of both legs and caused

cataracts. Charles died after the complaint was filed, and an

amended complaint was filed by Carol Woodward as adminis-

trator of the decedent’s estate and individually.

The malpractice was first discovered in February 1976, when a

sample from the preserved tissue taken in the 1965 biopsy was

examined microscopically at another hospital, which test demon-

strated that the earlier diagnosis had been erroneous. The circuit

court of Champaign County, in response to appellees’ motion,

dismissed the amended complaint, holding that the actions were

barred by section 22.1 of the Limitations Act. A panel of the

Fourth District Appellate Court reversed and held Section 22.1

unconstitutional, with one justice dissenting.

The Supreme Court of Illinois granted leave to appeal in this

case and another case involving the same statute and consoli-

dated them for hearing and opinion.* The Supreme Court there-

after, on October 2, 1979, held Section 22.1 constitutional and

3. Anderson v. Wagner, 61 Ill. App. 3d 882 (1979), the other

consolidated case, which was affirmed by the Illinois Supreme Court,

is not involved in this appeal.

5

expressly rejected the appellant’s arguments in both cases that,

in addition to violating various provisions of the Illinois Consti-

tution, Section 22.1 violated the Equal Protection and Due

Process clauses of the Fourteenth Amendment.

Throughout the trial and appellate proceedings in both Wood-

ward and the consolidated case, appellants raised and Appellant

Woodward continues to raise the invalidity of Section 22.1 under

the Equal Protection and Due Process Clauses.

THE QUESTIONS ARE SUBSTANTIAL

This case deals with the validity of Section 22.1 of the Illinois

Limitations Act which sets out an absolute four-year limitations

period for malpractice actions against physicians and hospitals

regardless of patient discovery of injury. Section 22.1 raises

equal protection and due process questions of first impression in

this Court which are both novel and important.

The novelty of these questions and their unsettled aspect are

shown in the discussion following in this Jurisdictional State-

ment. Their importance to the public is clear for several reasons.

Large numbers of patients, physicians and hospitals in Illinois

are obviously affected by the resolution of these questions. Also,

there has been a movement in the states, apparently in response

to the so-called medical malpractice insurance crisis, toward

comparably short limitations periods for medical malpractice.

See, e.g., Tex. Rev. Civ. Stat. Ann. art. 4590i, Sec. 10.01

(Vernon Supp. 1978-1979) (two year limitations period) and

Cal. Civ. Pro. Code Sec. 340.5 (West Cum. Supp. 1979) (three

year limitations period). Thus these questions have national

significance.

There are still other reasons these questions are important to

the public. Short limitations periods for medical malpractice,

like that in Illinois, create a disadvantaged class of patients—

especially indigents—who are injured by medical malpractice

but left without a remedy.

6

Short limitations periods also create a privileged and unique

class of physicians and hospitals who are rendered immune

from liability. Not only are physicians and hospitals treated

better than all other potential defendants, including other pro-

fessions. They are even given more favorable protection than

other medical care providers, at least in Illinois, because the same

statutory benefits are not extended to dentists*, nurses, nurse

anesthesiologists® and others. In this regard the proper opera-

tion of and respect for state legislative processes are also im-

plicated.

Additionally, not only is the Illinois Supreme Couvrt’s deci-

sion on the federal questions in this case erroneous, but it

is inconsistent in principle with decisions in other states. While

the Illinois Supreme Court apparently applied the traditional

equal protection test to Section 22.1’s classifications, the

Supreme Court of Idaho, after extended consideration, used

an intermediate or “means scrutiny” equal protection test in

passing on the validity of different but analogous aspects of

Idaho’s Hospital-Medical Liability Act. Jones v. State Board

of Medicine, 97 Idaho 859, 555 P. 2d 399 (1976). Similarly,

the North Dakota Supreme Court used a test with greater “bite”

than traditional equal protection in holding unconstitutional

North Dakota’s Medical Malpractice Act. Arneson v. Olson,

270 N. W. 2d 125 (S. Ct. N. Dak. 1978).

Finally, the adverse impact of Section 22.1 on patients of

physicians and hospitals and its inherent unfairness are starkly

illustrated when one contrasts this Court’s attitude toward

statutes of limitations expressed in United States v. Kubrick,

100 S.Ct. 352 (1979). Kubrick, a non-constitutional case,

involved the question of when a medical malpractice cause of

4. Peridontists, oral surgeons, dental reconstruct surgeons all do

surgery under circumstances similar to physicians.

5. Anesthesiologists would be members of the privileged class,

whereas nurse anesthesiologists would not be protected by Section

22.1, yet they perform the same work.

7

action “accrues” under the Federal Tort Claims Act. This Court

held that such a cause of action accrues when a patient is

aware of his injury and its probable cause despite his ignorance

of the possibility of negligence. It reasoned:

“We are unconvinced that for statute of limitations purposes

a plaintiff's ignorance of his legal rights and his ignorance

of the fact of his injury or its cause should receive idential

treatment. That he has been injured in fact may be un-

known or unknowable until the injury manifests itself;

and the facts about causation may be in the control of the

putative defendant, unavailable to the plaintiff or at least

very difficult to obtain. The prospect is not so bleak for

a plaintiff in possession of the critical facts that he has

been hurt and who has inflicted the injury. He is no longer

at the mercy of the latter. There are others who can tell

him if he has been wronged, and he need only ask... .

[T]he odds are that a competent doctor will so inform the

plaintiff.” Id. at 359 (Emphasis added).

This Court’s reference in Kubrick to a patient’s “bleak”

prospect is particularly applicable to patients in Illinois be-

cause of Section 22.1. As Kubrick clearly implies, preventing

a patient from bringing a medical malpractice action when the

patient’s injury can be discovered only after the expiration

of a short limitations period, is wrong and offensive to notions

of fair play. Such patients are obviously at the mercy of their

physicians and hospitals who are thereby encouraged to conceal

patient injuries.

Thus, a victim of medical malpractice committed by a

federally operated hospital or a physician employed by the

Federal government in Illinois and elsewhere, would have all

the rights recognized by Kubrick, yet a medical malpractice

victim of a private physician or state or private hospital in

Illinois and other states with similar limitations periods, would

be denied those very same rights.

For these reasons as well as the reasons discussed next, the

federal questions are substantial.

I.

SECTION 22.1 OF THE ILLINOIS LIMITATIONS ACT VIO-

LATES THE EQUAL PROTECTION CLAUSE BECAUSE

THE SPECIAL FOUR YEAR LIMITATIONS PERIOD FOR

MALPRACTICE ACTIONS AGAINST PHYSICIANS AND

HOSPITALS IS NEITHER JUSTIFIED BY A COMPELLING

STATE INTEREST NOR SHOWN TO BE NECESSARY.

According to the decisions of this Court, the equal protection

test known as “strict scrutiny’—which requires a state to show

a compelling interest and necessity—is brought into play when-

ever a fundamental right or interest is adversely affected by a

legislative classification. Shapiro v. Thompson, 394 U.S. 618

(1969). A fundamental right is one which is “explicitly or im-

plicitly” guaranteed by the United States constitution. San

Antonio Indep. School Dist. v. Rodriquez, 411 U.S. 1 (1973).

The right of access to the courts in civil cases, a right implicated

here, is clearly such a fundamental right. Boddie v. Connecticut,

401 U. S. 371 (1971); Bounds v. Smith, 430 U. S. 817 (1977).

Section 22.1’s special four year limitations period for mal-

practice actions against physicians and hospitals draws two

lines: (1) between injured patients of physicians and hospitals

and injured patients of other medical professionals such as

nurses, dentists, and the like and (2) between injured patients

of physicians and hospitals and all other persons injured by the

tortious conduct of others. Each of these lines creates a dis-

advantaged class of patients of physicians and hospitals as

well as a special and privileged category of physicians and

hospitals.

The lines drawn by Section 22.1 impermissibly burden the

right of access to the courts of pat.cnts of physicians and hospi-

tals with its inflexible four year limitations period. Many patient

injuries are slow to be discovered because the injury itself is a

subtle and gradually developing one without symptoms at the out-

set. For example, the injection of an improper drug, or overdose

9

of a drug, or excessive x-ray or radiation treatment might destroy

organs or bone, but work so slowly that its effects surface

after four years. In addition, some injuries resulting from opera-

tions by their very nature will not be discovered until another

operation takes place. A classic example is the sponge, operating

utensil or other foreign object negligently left in the body during

the course of an operation. Still another situation involves

misdiagnosis, as in the present Woodward case, where the results

are not discovered until years later, with tragic results. Because

patients so situated are substantially denied their right of access

to the courts by Section 22.i’s classification, that classification,

as embodied in the four year limitations period, must be sup-

ported by a compelling state interest and necessity.

The so-called medical malpractice insurance crisis relied upon

by the Illinois Supreme Court does not satisfy the state’s obliga-

tions under strict scrutiny. First, the state must demonstrate

empirically—and it has not—that there was such a crisis in

Illinois whereby physicians and hospitals in Illinois were in fact

rendered unable to provide medical services. Frontiero v. Rich-

ardson, 411 U.S. 677 (1973). A mere assertion is insufficient

to withstand strict scrutiny. In this regard, the emphasis on a

crisis in /Ilinois is intent: nal because it is [Illinois which must

show a compelling state interest. If there was no medical mal-

practice insurance crisis in Illinois either present or likely when

Section 22.1 was enacted—and the Illinois Supreme Court’s

opinion is virtually silent on this matter—then a compelling state

interest is absent.

This skepticism about the existence of such a crisis was also

raised by the Idaho Supreme Court in Jones v. State Board of

Medicine, 97 Idaho 859, 555 P. 2d 399, 414-416 (1976). See

also Report of the Illinois Insurance Laws Study Commission,

June 1975, pp. 47-60, (“[A]s far as the Commission can deter-

mine, the issue of cost of medical malpractice insurance has

been overblown.”) and Report of the Secretary of H. E. W.’s

Commission on Medical Malpractice, p. 12 (1973).

10

Second, if all that can be demonstrated empirically is an

increase in the costs of medical malpractice insurance, this

interest in cost-reduction, standing alone, is clearly not con-

sidered compelling when balanced against infringement of the

fundamental right of access to the Courts. Shapiro v. Thompson,

394 U.S. 618 (1969); Frontiero v. Richardson, 411 U.S. 677

(1973).

Finally, even if alleviating the so-called medical malpractice

insurance crisis were to be considered a compelling state interest,

the means used to promote that interest—Section 22.1’s four

year limitations period for physicians and hospitals—is not neces-

sary. The state could, for example, subsidize medical malpractice

insurance where it would otherwise be difficult for physicians

and hospitals to obtain, or physicians and hospitals could readily

self-insure (e.g. through the Ilinois State Medical Inter-Insurance

Exchange) as indeed, many have done. Either approach would

avoid Section 22.1’s adverse effect on the right of access to the

courts of patients injured by the conduct of physicians and

hospitals.

It is also relevant that the impact of Section 22.1 on patients

of physicians and hospitals is especially severe for indigent

patients. Such patients are far less likely than non-indigent

patients to discover injuries caused them by the conduct of

physicians and hospitals. There are several reasons for this. First,

indigents generally are less informed about medical matters,

and more intimidated by doctors and hospitals, than non-

indigents, Second, patients who suspect injury caused by physi-

cians and hospitals will frequently seek other medical counsel.

This obviously requires financial resources which may not be

available to indigents. Finally, when one adds to these factors

the difficulties generally of discovering gradually developing

injuries caused by physicians and hospitals, the practical result

is to bar meritorious medical malpractice claims of indigents

from Illinois courts.

11

It is true that this Court has not held wealth discrimination,

either intentional or in impact, to be a suspect classification

triggering strict scrutiny equal protection. San Antonio Indep.

School Dist. v. Rodriquez, 411 U.S. 1 (1973). Nevertheless,

this Court has been sensitive to situations in which discrimina-

tion against indigents exists. Shapiro v. Thompson, 394 U.S.

618 (1969); McDonald v. Board of Election Commissioners,

394 U.S. 802 (1969); Memorial Hospital v. Maricopa County,

415 U.S. 250 (1974). When coupled with Section 22.1’s

infringement of the fundamental right of access to the courts,

the disproportionately severe impact on indigents of a four-year

limitations period of discovery for injury caused by physicians

and hospitals, warrants similar judicial sensitivity as well as a

finding that the equal protection clause has been violated.

II.

SECTION 22.1 OF THE ILLINOIS LIMITATIONS ACT VIO-

LATES THE EQUAL PROTECTION CLAUSE BECAUSE ITS

FOUR YEAR LIMITATIONS PERIOD, WHICH DISTIN-

GUISHES BETWEEN MALPRACTICE ACTIONS AGAINST

PHYSICIANS AND HOSPITALS AND ALL OTHER MAL-

PRACTICE AND TORT ACTIONS, DOES NOT SUBSTAN-

TIALLY FURTHER A LEGITIMATE LEGISLATIVE PUR-

POSE.

Even if this Court should be unwilling to apply strict scrutiny

equal protection to Section 22.1, nevertheless, because of the

important patient interests implicated in being denied access to

the courts, the state is required to show at a minimum that its

classification substantially furthers its objective. Compare Jones

Vv. State Board of Medicine, 97 Idaho 859, 555 P.2d 399

(1976) and Arneson v. Olson, 270 N. W. 2d 125 (S. Ct. N.

Dak. 1978). That is, the “classification must rest upon some

ground of difference having a fair and substantial relation to the

object or the legislation.” Reed v. Reed, 404 U.S. 71 (1971).

See also Levy v. Louisiana, 391 U.S. 68 (1968), Weber v.

12

Aetna Casualty & Surety Company, 406 U.S. 164 (1972),

McGinnis v. Royster, 410 U.S. 263 (1973) and Zablocki v.

Redhail, 434 U.S. 374 (1978).

Substantiality requires more than a mere assertion by the state

that Section 22.1 alleviates the so-called medical malpractice

insurance crisis. Rather, there must be souie reasonable, factual

support for the state’s claim. Specifically, what has not been

shown by the state here is that there was a medical malpractice

insurance crisis in Illinois. Furthermore, even if there were such

a crisis. Section 22.1 is ineffective to cure it. Many, if not most,

medical malpractice injuries will continue to be discovered

within four years, so that relatively few claims are eliminated by

Section 22.1. See Insurance Services Office, Special Malpractice

Review: 1974 Closed Claims Survey, Preliminary Analysis of

Survey Results 25-26 (Dec. 1, 1975) (98.1% of all medical

malpractice incidents, involving 98.3% of all award dollars, are

reported within five years of occurrence).

Moreover, a short statute of limitations only triggers early

filing of medical malpractice claims, often before the presence

of medical malpractice is ascertained, and is thus self-defeating.

Consequently, there is no substantial relation shown between

Section 22.1’s classification and its asserted purpose of remedy-

ing the so-called medical malpractice insurance crisis. Sec. 22.1

thereby violates equal protection.

III.

SECTION 22.1 OF THE ILLINOIS LIMITATIONS ACT VIO-

LATES THE DUE PROCESS CLAUSE BECAUSE IT IMPER-

MISSIBLY TAKES AWAY, WITHOUT NOTICE, AN IM-

PORTANT RIGHT TO COMPENSATION FROM THOSE

PATIENTS WHO NEITHER KNOW NOR HAVE REASON

TO KNOW WITHIN THE FOUR-YEAR LIMITATIONS

PERIOD THAT THEY HAVE BEEN INJURED BY THE

CONDUCT OF PHYSICIANS AND HOSPITALS.

The due process clause prohibits the taking of a property

interest without due process of law. What constitutes a property

13

interest for this purpose is, according to this Court, a question of

state law. Goldberg v. Kelly, 397 U.S. 254 (1970); Board of

Regents v. Roth, 408 U.S. 564 (1972). In Illinois, a cause of

action for personal injuries is a vested property right, Wangler

Boiler and Sheet Metal Works v. Industrial Comm’r, 287 Il.

118, 121 (1919), which is capable of being assigned and

inherited. Ill. Rev. Stat. ch. 3, Sec. 494. This right is also

protected by Article 1, Section 2 of the Illinois Constitution.

Thus, a medical malpractice cause of action against physicians

and hospitals is a property interest for due process purposes,

Section 22.1 impermissibly operates to deprive patients of

this property interest. Patients who neither know nor have

reason to know within four years of injuries to them caused

by the conduct of physicians and hospitals, lose their cause of

action fo: damages without ever having known that they had

it. This is inconsistent with basic notions of fairness underlying

procedural due process.

Long ago this Court made the same point in a case in-

volving the constitutionality of another state statute of limita-

tions. In Wilson v. Iseminger, 185 U.S. 55 (1902), this Court

upheld the challenged limitations period because it provided a

reasonable time for affected parties to protect their legal interest.

However, it stated:

“[A]ll statutes of limitations must proceed on the idea that

the party has full opportunity afforded him to try his right

in the courts. A statute could not bar the existing rights

of claimants without affording this opportunity; if it should

attempt to do so, it would not be a statute of limitations,

whatever might be the purport of its provisions. It is es-

sential that such statutes allow a reasonable time . . .”

Id. at 62.

See also Lamb v. Powder River Livestock Co., 132 F. 434 (8th

Cir. 1904) which held unconstitutional on procedural due

process grounds a three month Colorado statute of limitations

for judgments received outside the state for causes of action

accruing more than six years earlier.

14

This due process contention, it must be emphasized, does

not attack every limitations period, but only that of Section

22.1 and comparable statutes. Medical malpractice injuries are

unique because, as noted earlier, such injuries may develop

gradually, or the challenged medical misdiagnosis itself may

prevent discovery within four years, or the injury may by its

very nature only be discoverable through an expensive and

dangerous operation or series of tests. For these reasons, a short

statute of limitations protecting physicians and hospitals is |

especially vulnerable to a due process challenge.

IV.

SECTION 22.1 OF THE ILLINOIS LIMITATIONS ACT VIO-

LATES THE DUE PROCESS CLAUSE BECAUSE IT IM-

PERMISSIBLY DESTROYS THE RIGHT OF ACCESS TO

THE COURTS OF PATIENTS INJURED BY THE CONDUCT

OF PHYSICIANS AND HOSPITALS EVEN WHEN THOSE

PATIENTS NEITHER KNOW NOR HAVE REASON TO

KNOW OF SUCH INJURY WITHIN THE FOUR YEAR

LIMITATIONS PERIOD.

This Court’s decisions establish that there exists a right of

access to the courts based upon the due process clause.

Boddie v. Connecticut, 401 U. §. 371 (1971); Bounds v. Smith,

430 U.S. 817 (1917). In Boddie, the Court asserted as a

settled principle:

“[D]ue process requires, at a minimum, that absent a

countervailing state interest of overriding significance, per-

sons forced to settled their claim of right and duty through

the judicial process must be given a meaningful opportun-

ity to be heard.” (Emphasis added)

In cases like the present one, patients injured by the conduct

of physicians and hospitals typically have no choice but to

litigate. However, where such patients neither know, have reason

to know, nor can reasonably discover within four years that

15

they have been injured by the conduct of physicians and hospi-

tals, Section 22.1 acts to deny them a “meaningful opportunity

to be heard.” Furthermore, what distinguishes other statutes

of limitation from Section 22.1 for right of access purposes is

the absence of “a countervailing state interest of overriding

significance” to justify the infringement of this right. Here, the

state interests in repose and avoidance of stale claims cannot

be considered of overriding signficance because relatively few

claims will be barred by Section 22.1. Thus, the due process

clause has been violated.

CONCLUSION

For these reasons, this Court should note probable jurisdic-

tion of this appeal.

Respectfully submitted,

LEONARD M. RING

SHELDON H. NAHMOD

LEONARD M. RING

& ASSOCIATES

111 West Washington Street

Chicago, Illinois 60602

(312) 332-1765

Altorneys for Appellant

Al

APPENDIX A

(No. 50880.—Judgment affirmed. )

(Nos. 50980, 50981.—Appellate court reversed;

circuit court affirmed. )

THOMAS ANDERSON ef al., Appellants, v. WILLIAM

WAGNER, Appellee—CAROL C. WOODWARD, Indiv.

and as Adm’r, Appellee, v. BURNHAM CITY HOSPITAL

et al., Appellants.

Opinion filed October 2, 1979.-Rehearing denied

March 28, 1980.

Appellate citations: Anderson v. Wagner, 61 Ill. App. 3d 822.

Woodward v. Burnham City Hospital,

60 Ill. App. 3d 285.

MR. JUSTICE RYAN delivered the opinion of the court:

These consolidated cases involve the validity of section 21.1

of the Limitations Act (Ill. Rev. Stat. 1977, ch. 83, par. 22.1),

which provides for a special limitation period for medical mal-

practice actions against physicians and hospitals. One panel of

the Fourth District Appellate Court in cause No. 50880, Ander-

son v. Wagner, held section 21.1 to be constitutional, with one

justice dissenting. (61 Ill. App. 3d 822.) Another panel of the

appellate court for the same district in cause Nos. 50980 and

50981, Woodward v. Burnham City Hospital, held section 21.1

unconstitutional, with one justice dissenting. (60 Ill. App. 3d

285.) We granted petitions for leave to appeal in both cases

and consolidated them for hearing and opinion in this court.

On the date the complaints in these consolidated cases were

filed, section 21.1 of the Limitations Act provided:

“No action for damages for injury or death against any

physician or hospital * * * whether based upon tort, or

A2

breach of contract, or otherwise, arising out of patient care

shall be brought more than 2 years after the date on which

the claimant knew, or through the use of reasonable dili-

gence should have known, or received notice in writing of

the existence of the injury or death for which damages are

sought in the action, whichever of such date occurs first,

but in no event shall such action be brought more than 4

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.

If the person entitled to bring the action is, at the time

the cause of action occurred, under the age of 18 years, or

insane, or mentally ill, or imprisoned on criminal charges,

the period of limitations does not begin to run until the

disability is removed.” Ill. Rev. Stat. 1977, ch. 83, par. 22.1.

Plaintiffs Thomas and Marilyn Anderson filed a complaint in

the circuit court of Macon County against defendant William

Wagner, M.D., on June 23, 1977, alleging that the defendant

had failed to inform the plaintiffs that Marilyn had tested

positive for rubella in a first trimester pregnancy test given to

her late in 1972. Plaintiffs also allege that defendant failed to

inform them of the likelihood of mental retardation in a child

born under these circumstances. On May 20, 1973, a child, who

later proved to be mentally retarded, was born to plaintiffs, who

allege they did not discover the defendant’s malpractice until

January 26, 1976. The circuit court of Macon County dismissed

the complaint on motion of the defendant, holding that section

21.1 barred the action. In an amended complaint filed subse-

quent to the dismissal, plaintiffs allege that the defendant had

fraudulently concealed their cause of action from them, which

concealment, they allege, tolled the running of the statute of

limitations. The trial court held that the statute was not tolled

and dismissed the amended complaint. As noted above, the

appellate court, with one justice dissenting, affirmed.

Plaintiffs Charles and Carol Woodward filed suit against

defendants Burnham City Hospital and two doctors for mal-

practice on December 30, 1976, alleging an erroneous diagnosis

A3

of tissue taken from plaintiff, Charles Woodward, on November

27, 1965. As a result of the erroneous diagnosis, massive steroid

treatments were administered which, it is alleged, caused Charles

Woodward to develop a condition known as steroid myopathy

which necessitated the amputation of both legs and caused cata-

racts. Charles died after the complaint was filed and an amended

complaint was filed by Carol Woodward as administrator of the

decedent’s estate and individually. It is alleged that the mal-

practice was first discovered in February 1976, when a sample

from the preserved tissue taken in the 1965 biopsy was tested

by another facility, which test demonstrated that the earlier

diagnosis had been incorrect. The circuit court of Champaign

County, in response to defendants’ motion, dismissed the

amended complaint, holding that the actions were barred by

section 21.1 of the Limitations Act. As stated earlier, the

appellate court, with one judge dissenting, reversed and held

section 21.1 unconstitutional.

The plaintiffs contend that section 21.1 is unconstitutional

for several reasons, First they say it violates the due process and

equal protection clauses of both the Federal and State consti-

tutions. The plaintiffs’ primary contention is, however, that sec-

tion 21.1 violates article IV, section 13, of the Illinois Constitu-

tion of 1970 in that it is special legislation because it (1) sets

medical malpractice apart from all other professional malprac-

tice and (2) confers a special privilege upon only two classes of

medical health providers, physicians and hospitals. Before con-

sidering these arguments, a survey of recent legislative enact-

ments and judicial decisions relating to medical malpractice will

be helpful.

I

It is generally agreed that in the early 1970’s what has been

termed a medical malpractice insurance crisis existed in most

jurisdictions in this country. The crisis resulted from the increas-

ing reluctance of insurance companies to write medical mal-

A4

practice insurance policies and the dramatic rise in premiums

demanded by those companies which continued to issue policies.

The difficulty in obtaining insurance at reasonable rates forced

many health-care providers to curtail or cease to render their

services. The legislative response to this crisis sought to reduce

the cost of medical malpractice insurance and to insure its con-

tinued availability to the providers of health care. By October

1975, 39 States had commissioned studies of the medical mal-

practice problem and 22 States had revised civil practice laws

and rules in an attempt to remedy the problem. Redish, Legisla-

tive Response to the Medical Malpractice Insurance Crisis:

Constitutional Implications, 55 Tex. L. Rev. 759, 761 n. 14

(1977); see generally American Bar Association, Report of the

Commission on Medical Professional Liability (1977); United

States Department of Health, Education and Welfare Publica-

tion No. (OS) 73-88, Medical Malpractice: Report of the

Secretary’s Commission on Medical Malpractice (1973); Illinois

Insurance Laws Study Commission, Final Report to the Gover-

nor and 79th General Assembly 47-60 (1975) (medical mal-

practice).

Legislative efforts dealing with the malpractice crisis included

a variety of changes in tort law principles. In many instances

direct limits were placed on the amount of recovery. The use of

screening panels and arbitration was broadly recommended and

followed, and certain procedural changes such as altering the

statute of limitations were made. (See Medical Malpractice:

The Duke L.J. Symp. 241-92 (1977); Comment, Recent

Medical Malpractice Legislation—A First Checkup, 50 Tul.

L. Rev. 655 (1976).) The Illinois General Assembly, in its

effort to meet the crisis, adopted “An Act to revise the law in

relation to medical malpractice” (Pub. Act 79-960, approved

September 12, 1975, effective November 11, 1975). This act,

in addition to amending section 2.1 of the Limitations Act, also

created a medical review panel (Ill. Rev. Stat. 1975, ch. 110,

par. 58.2 through 58.10) and limited the maximum amount of

/

AS

recovery in medical malpractice actions (Ill. Rev. Stat. 1975,

ch. 70, par. 101).

This court, in Wright v. Central Du Page Hospital Associa-

tion (1976), 63 Ill. 2d 313, was one of the first State courts of

final review to pass on the validity of a legislature’s response to

the malpractice crisis. In Wright this court held invalid the

limitation on the amount of recovery and the provision relating

to a medical review panel. That part of the new act amending

the Limitations Act was not involved in that case.

It appears that few State courts of final review have followed

the holding of Wright, though many courts and writers have

discussed the case. (Arneson v. Olson (N. D. 1978), 270 N. W.

2d 125 (limitation on amount of recovery held invalid) (State

ex rel. Cardinal Glennon Memorial Hospital for Children v.

Gaertner (Mo. 1979), 583 S. W. 2d 107) (provision for re-

viewing panel held invalid).) Two lower courts in Ohio have

held portions of the Ohio statute invalid. (Simon v. St. Elizabeth

Medical Center (Ohio C. P. Montgomery County 1976), 3 Ohio

Op. 3d 164, 355 N.E. 2d 903 (limitation on amount of re-

covery held invalid); Grayley v. Satayatham (Ohio C. P. Cuya-

hoga County 1976), 74 Ohio Op. 2d 316, 343 N. E. 2d 832

(limitation on amount of recovery and provision concerning a

panel held invalid).) The Ohio Supreme Court, however, in

Amer V. Akron City Hospital (Ohio 1976), 47 Ohio St. 2d 85,

351 N. E. 2d 479, in a case not directly involving the validity of

the shortened medical malpractice limitation period, stated that

the enactment of such limitations was within the prerogative of

the legislature. (Amer v. Akron City Hospital (Ohio 1976), 47

Ohio St. 2d 85, 91 n. 4, 351 N. E. 2d 479, 484 n. 4.) Also,

some trial courts in Tennessee have not applied the statute of

that State providing for screening panels, finding that provision

to be in violation of the Tennessee Constitution. (See Comment,

Constitutional Challenges to Medical Malpractice Review

Boards, 46 Tenn. L. Rev. 607, 632-44 (1979).) Recently the

Florida Supreme Court, in two cases not yet reported, held

A6

unconstitutional the provisions of that State’s malpractice statute

which provided for screening panels. (6 Nat'l L. J. 3 (Mar. 17,

1980).) In addition to these cases holding medical malpractice

legislation invalid, the Supreme Court of Idaho, in Jones v. State

Board of Medicine (1976), 97 Idaho 859, 555 P.2d 399,

reached a result which cannot be classified as sustaining or

holding invalid the medical malpractice statute of that State.

While it found that the Idaho act did not deny the plaintiff access

to the courts, it nonetheless remanded the case for factual find-

ings on a question of classification.

On the other hand, an overwhelming majority of courts

have recognized the unique nature of medical malpractice prob-

lems and have upheld general medical malpractice statutes

against numerous constitutional attacks. Many of the cases

cited from other jurisdictions have either attempted to dis-

tinguish Wright, or have refused to follow it. (Woods v. Holy

Cross Hospital (5th Cir. 1979), 591 F.2d 1164; Hines v.

Elkhart General Hospital (N. D. Ind. 1979), 465 F. Supp. 421;

Eastin v. Broomfield (1977), 116 Ariz. 576, 570 P. 2d 744;

Carter v. Sparkman (Fla. 1976), 335 So. 2d 802; State ex rel.

Schneider v. Liggett (1978), 223 Kan. 610, 576 P. 2d 221;

McGuffey v. Hall (Ky. 1977), 557 S.W.2d 401 (statute

valid but certain limited aspects of it declared void because

of State constitutional provisions); Everett v. Goldman (La.

1978), 359 So. 2d 1256; Attorney General v. Johnson (1978),

282 Md. 168, 385 A.2d 57; Paro v. Longwood Hospital

(1977), 373 Mass. 645, 369 N.E.2d 985; Prendergast v.

Nelson (1977), 199 Neb. 97, 256 N. W. 2d 657; Comiskey v.

Arlen (1976), 55 App. Div. 2d 304, 390 N. Y.S.2d 122;

Parker v. Children’s Hospital (1978), 483 Pa. 106, 394 A. 2d

932; State ex rel. Strykowski v. Wilkie (1978), 81 Wis. 2d

491, 261 N. W. 2d 434.) Wright has also been criticized by

the writers. See, e.g., Redish, Legislative-Response to the Medical

Malpractice Insurance Crisis: Constitutional Implications, 55

Tex. L. Rev. 759 (1977); Comment, Constitutional Challenges

A7

to Medical Malpractice Review Board, 46 Tenn. L. Rev. 607

(1979); Note, Medical Malpractice Mediation Panels: A Con-

stitutional Analysis, 46 Fordham L. Rev. 322 (1977); Note,

Wright v. Central Du Page Hospital Association: A Grim

Prognosis for Medical Malpractice Review Panels?, 22 S. D.

L. Rev. 461 (1977); Note, Recent Medical Malpractice Legis-

lation—A First Checkup. 50 Tul. L. Rev. 655 (1976).

The critics have read the holding in Wright too broadly.

First, the case did not hold that all statutory provisions creating

panels for the review of malpractice claims were unconstitu-

tional, Second, the holding of Wright that the limitation on the

amount of recovery is invalid is not inconsistent with the posi-

tion taken by the American Bar Association Commission on

Medical Professional Liability that no dollar limit on recoverable

damages should be enacted which can operate to deny a plain-

tiff in a medical malpractice action full compensation for eco-

nomic loss. (American Bar Association, Report of the Commis-

sion on Medical Professional Liability 145-46 (1977).) The

court noted in Wright that, under the act being considered,

the very -criously injured, because of the limitation, might be

unable to recover even all of his medical expenses. Wright v.

Central Du Page Hospital Association (1976), 63 Ill. 2d 313,

327-28.

II

We now turn to the consideration of the changes that were

made in the limitation statutes as a part of the legislative

response to the medical malpractice insurance crisis. Prior to

that crisis few States had special limitation statutes for medical

malpractice cases. Generally, the statutes of limitations applicable

to personal injuries were followed, and occasionally, when the

action was framed on an implied contract theory, a contract

limitation period would be applied. A few States had statutes

of limitations applicable to all types of malpractice and a few

States had statutes of limitations specifically for medical mal-

A8

practice. D. Harney, Medical Malpractice 247-70 (1973); 1 D.

Louisell & H. Williams, Medical Malpractice sec. 13.01 ef seq.

(1977); Lillich, The Malpractice Statute of Limitations in New

York and Other Jurisdictions, 47 Cornell L. Q. 339 (1962).

Increased use of the “discovery rule,” beginning in the late

1960's, dramatically complicated the question of statutes of

limitation, particularly in the field of medical malpractice.

Under the discovery rule a cause of action accrued when a

person learned of his injury or reasonably should have learned

of it. With extensive application of the discovery rule to medical

malpractice cases, statutes of limitations no longer constituted

statutes of repose for a defendant in a malpractice action. By

the application of the discovery rule a medical malpractice

action was not deprived of its vitality simply by the passage of

the statutory period. (As to the effect of the discovery rule on

the statute of limitations in malpractice cases, see generally,

Letvin, Jn Search of the Spirit of Lipsey: Discovery of Malprac-

tice and the Statute of Limitations, 1978 S. 1. U. L. J. 345; Scott,

For Whom The Time Tolls—Time of Discovery and the Statute

of Limitation, 64 Ill. B. J. 326 (1976); Note, The Evolution of

Illinois Tort Statutes of Limitation: Where Are We Going and

Why? 53 Chi.-Kent L. Rev. 673 (1977); Comment, The Time

of Discovery Rule and the Qualified Privilege Defense for Credit

Reporting Agencies in Illinois after World of Fashion v. Dun

& Bradstreet, Inc., 10 J. Mar. J. Prac. & Proc. 359 (1977).)

Before considering other States’ responses to the discovery-

rule problem in medical malpractice, however, it is appropriate

to consider the development of the Illinois statute of limitations

as it relates to medical malpractice actions. In Illinois, prior to

1965, actions involving medical malpractice were governed by

the general provisions of the Limitations Act. If the action was

one for personal inju:y. the 2-year limitation period of section

14 of the Act (Ill. Rev. Stat. 1963, ch. 83, par. 15) was applied.

In 1964 in Mosby v. Michael Reese Hospital (1964), 49 Il.

App. 2d 336, the plaintiff alleged that a surgical needle had been

A9

left in her body but that she did not discover this fact until 4

years later when she had a second operation. The trial court,

relying on the 2-year statute of limitations, dismissed the plain-

tiff’s complaint. The appellate court, although recognizing the

wide application of the discovery rule in other areas, nonethe-

less affirmed the trial court. However, the appellate court ex-

pressed dissatisfaction with the result. At the next session of the

General Assembly, section 21.1 was added to the Limitations

Act (Ill. Rev. Stat. 1965, ch. 83, par. 22.1), providing in sub-

stance that where a foreign object has been introduced into a

person’s body and was negligently permitted to remain there

the period of time within which an action must be brought would

not begin to run until the person knew or should have known

of this fact, with an outside 10-year limitation following the

treatment or operation. Other than cases involving foreign

objects, the 2-year provision of section 14 (Ill. Rev. Stat. 1965,

ch. 83, par. 15) still applied. In 1970 in Lipsey v. Michael

Reese Hospital (1970), 46 Ill. 2d 32, this court applied the

discovery rule to a medical malpractice case not involving a

foreign object left in the patient’s body and held that the cause

of action did not accrue until the injured person learned of the

injury or should have learned of it. Thus, after Lipsey, if a person

had been injured by having a foreign object negligently left in

his body, the maximum time within which a complaint could

be filed was 10 years. Whereas, if the negligent act involved

faulty diagnosis or a negligent act other than leaving a foreign

object in the body, the cause of action did not arise until the

patient learned of the injury or should have learned of it regard-

less of how long after the negligent act that may have been.

Thus in 1975 the General Assembly, when it enacted Public

Act 79—960, part of which was held unconstitutional in

Wright, was faced with this discrepancy and as part of Public

Act 79—960 amended section 21.1 of the Limitations Act by

adding to its previous provisions concerning a foreign object

a provision limiting the time within which other malpractice

A10

actions may be brought to 2 years. However, the statute further

provided an outside time limit of 5 years for bringing this type

of action in cases where the discovery rule was applicable. In

1976 section 21.1 was again amended deleting the special

provisions concerning foreign objects left in the body and pro-

viding that all malpractice actions against physicians and hos-

pitals arising out of patient care shall not be brought more

than 2 years after the claimant knew or should have known

of the existence of the injury but in no event more than 4 years

after the date on which occurred the last act or omission alleged

to have been the cause of such injury.

The discovery rule was thought to have played a significant

role in the medical malpractice crisis. Because it created what

came to be called the “long tail” of liability, the discovery rule

reduced an insurance company’s ability to predict future liabili-

ties. (See Comment, “Claims Made” Dilemma in Professional

Liability Insurance, 22 U.C. L. A. L. Rev. 925 (1975).) Re-

sponding to these problems, various State and national com-

missions recommended placing an outside limit on the discovery

rule in medical malpractice cases. See, e.g., American Bar Asso-

ciation, Report of the Commission on Medical Professional

Liability 140-43 (1977); Medical Injury Insurance Repara-

tions Commission, Report and Recommendation to Governor

Dan Walker and Members of the 79th General Assembly (III.

1976); Medical Malpractice: The Duke L. J. Symp. 253-54

(1977).

This interest in the discovery rule prompted a substantial

number of States to enact limitation statutes placing an outside

limit on the applicability of the discovery rule in medical mal-

practice cases, The various statutes differ in both length of

time within which suit must be filed and the types of medical

personnel or entities affected by the statute. A number of statutes

apply to all “health care providers,” comprehensively covering all

medical malpractice actions. (Ala. Code 6—S5S—480 (1975) (4

Years); Ariz. Rev. Stat. sec. 12—564 (1978 Supp.) (3 years);

All

Cal. Civ. Proc. Code sec. 340.5 (Deering 1979 Supp.) (3 years);

Del. Code tit. 18 sec. 6856 (1978 Supp.) (3 years); Fla.

Stat. Ann. sec. 95.11 (West 1979 Supp.) (7 years); Ga. Code

Ann. secs. 3—1102, 3—1103 (1978 Supp.) (2 years); Ind. Code

Ann. secs. 16—9.5—3—1, 16—9,5—-3-2 (Burns Supp. 1978)

(2 years); Kan. Civ. Proc. Stat. Ann. sec. 60—513 (Vernon

1976) (4 years); Md. Cts. & Jud. Proc. Code Ann. sec. 5—109

(1978 Supp.) (5 years); Nev. Rev. Stat. sec. 41A.097 (1977)

(4 years); N. H. Rev. Stat. Ann. sec. 507—C:4 (1977 Supp.)

(8 years); N. M. Stat. Ann. sec. 41—5—13 (1978) (3 years);

N. Y. Civ. Prac. Law sec. 214—a (McKinney 1978-79 Supp.)

(2 years, 6 months); Okla. Stat. Ann, tit. 76, sec. 18 (West

1978-79 Supp.) (only economic expenses allowed after 3 years) ;

Or. Rev. Stat. sec. 12.110 (1977) (5 years); S.C. Code sec.

15—3—545 (1978 Supp.) (6 years); Tenn. Code Ann. sec.

23—3415 (1978 Supp.) (3 years); Tex. Rev. Civ. Stat. Ann.

art. 4590i (Vernon 1978-79 Supp.) (2 years); Vt. Stat. Ann.

tit. 12, sec. 521 (1978 Supp.) (7 years).) Other statutes at-

tempt to enumerate specific groups of medical personnel or

facilities; although not applying to all “health care providers” or

health facilities, they, nonetheless, cover a broad spectrum.

(Colo. Rev. Stat. sec. 13—-80—105 (1978 Supp.) (3 years);

Haw. Rev. Stat. sec. 657-—7.3 (1978 Supp.) (6 years); Iowa

Code Ann. sec. 614.1 (1979-80 Supp.) (6 years); Mich. Comp.

Laws Ann. sec. 600.5838 (1979-80 Supp.) (action accrues

when alleged tortfeasor ceases treating plaintiff, regardless of

time of discovery); Mo. Ann. Stat. sec. 516.105 (1979 Supp.)

(10 years); Mont. Rev. Codes Ann. sec. 93—2624 (1977

Supp.) (5 years); S.D. Comp. Laws Ann. sec. 15—2—14.1

(1978 Supp.) (2 years); Utah Code Ann. sec. 78—12—28

(1975 Supp.) (10 years); Wash. Rev. Code Ann. sec. 4.16.350

(1978 Supp.) (8 years).) However, another group of statutes

provides protection to a very limited group of medical personnel

or facilities and usually excludes nurses and a substantial body

of medical personnel and health-care facilities that could be

Al2

involved in malpractice litigation. The Illinois statute falls into

this group. (Conn. Gen. Stat. Ann. sec. 52—584 (West 1979)

(3 years); Ky. Rev. Stat. Ann. sec. 413.140 (Baldwin 1978)

(5 years); La Rev. Stat. Ann, art. 9:5628 (1977 Supp.) (3

years); N. D. Cent. Code sec. 28—01—18 (1977 Supp.) (6

years); Ohio Rev. Code Ann. sec, 2305.11 (Baldwin 1978)

(4 years).) Some States have previously had medical malprac-

tice limitation statutes which applied only to a limited group

and have substantially broadened the application of these

statutes. (Compare the Colorado statute above to the statute

involved in McCarty v. Goldstein (1962), 151 Colo. 154, 376

P. 2d 691.) Two States have statutes which protect against

claims for all types of professional malpractice. (See Neb. Rev.

Stat. sec. 25—222 (1975) (10 years); N.C. Gen. Stat. sec.

1—15 (1977 Supp.) (4 years).) We do not suggest that these

statutes represent the total legislative activity in this area. They

do show, however, that a substantial majority of the States have

felt that the discovery rule should be limited by prescribing a

maximum time within which a malpractice action must be com-

menced regardless of when the injury is discovered.

The Illinois malpractice limitation statute—as it now stands

in relation to the time within which actions must be filed—

generally follows the time limitation specified in the statutes of

other States. However, as noted above, there is a wide variance

as to the classes of health-care providers who are covered by

the statutes. Our statute falls within the group which does not

extend the protection of the statute to all classes of health-care

providers who could be the subject of medical malpractice

actions. Protection is afforded by our statute only to physicians

and hospitals.

The various limitation statutes of the other States relating

to malpractice have been challenged on a variety of constitu-

tional grounds including equal protection, due process and

special legislation. All of the cases that our research found have

sustained the validity of the statutes. Whether the statute is

Al3

broad and covers all malpractice actions (Taylor v. Karrer

(1976), 196 Neb. 581, 244 N. W. 2d 201), or applies to all

types of medical malpractice or all groups of health-care pro-

viders (Landgraff v. Wagner (1976), 26 Ariz. App. 49, 546

P. 2d 26; Harrison v. Schrader (Tenn. 1978), 569 S. W. 2d

822; Duffy v. King Chiropractic Clinic (1977), 17 Wash. App.

693, 565 P. 2d 435: Chaffin v. Nicosia (1974), 261 Ind. 698,

310N. E. 2d 867), or whether the statute applies only to limited

and specific groups of those who provided health care (Sellers

v. Edwards (1972), 289 Ala. 2, 265 S. 2d 438; McCarty v.

Goldstein (1962), 151 Colo. 154, 376 P. 2d 691; Laughlin v.

Forgrave (Mo. 1968), 432 S. W. 2d 308), the statute has been

consistently upheld against the charge that the classifications

have been discriminatory or unreasonable and constituted a

denial of equal protection or constituted special legislation in

favor of a class protected. The reasoning of these cases can be

summarized by the language of this court in Hamilton Corp. v.

Alexander (1972), 53 Ill. 2d 175, 179:

“The equal-protection clause does not prevent a State

from adjusting its legislation to differences in situations.

A statute effecting the classifications of persons or objects

is not unconstitutional merely because it affects one class

and not another, provided that it affects all members of

the same class alike; so long as the classification is not

arbitrary and is founded upon some substantial difference

in circumstances or conditions properly related to the

classification.”

(We will more particularly discuss the propriety of the classifica-

tions in our statute below when we consider the plaintiffs’ argu-

ments concerning special legislation. )

The plaintiffs also contend, in an unarticulated due process

argument, that under section 21.1 it is possible that a person’s

cause of action may be barred by the 4-year-maximum time limit

before he learns of his injury. This problem is not directly

involved in these cases. However, in Laughlin v. Forgrave (Mo.

Al4

1968), 432 S. W. 2d 308, Owen v. Wilson (1976), 260 Ark.

21, 537 S. W. 2d 543, and Landgraff v. Wagner (Ariz. App.

1976), 546 P. 2d 26, the statutes had run before the plaintiffs

became aware of their injuries. In those cases the validity of the

statutes was challenged as constituting a violation of the plain-

tiffs’ right to due process of law. The courts in those cases noted

that the period provided in the statutes was a reasonable time

within which to require a complaint to be filed. The Supreme

Court of Arkansas in Owen v. Wilson stated:

“Any statute of limitations will eventually operate to bar a

remedy and the time within which a claim should be

asserted is a matter of public policy, the determination of

which lies almost exclusively in the legislative domain, and

the decision of the General Assembly in that regard will not

be interfered with by the courts in the absence of palpable

error in the exercise of the legislative judgment.” (Owen v.

Wilson (1976), 260 Ark. 21, 24-25, 537 S. W. 2d 543,

545.)

The court held that a claimant is not denied due process of law

where a reasonable period of limitation has barred the claim

without awareness by the claimant that he has been injured.

Also, in Dunn v. Felt (Del. 1977), 379 A. 2d 1140, the statute

of limitations had run prior to the plaintiff's discovery of his

injury. The statute was challenged as being in violation of the

Delaware Constitution; however, the court sustained the validity

of the act, stating:

“The authority of the General Assembly in enacting

statutes of limitation is quite broad and limited only by a

rule of reason, [Citations.] I cannot say that the 3 year

limitation found in 18 Del. C. section 6856 is unreason-

able.” Dunn v. Felt (Del. 1977), 379 A. 2d 1140, 1141.

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

Al5

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. The 4-year limit of our present statute follows the

recommendations of the Medical Injury Reparations Commis-

sion contained in its report to the Governor and the 79th

General Assembly cited above. This recommendation was made

following extensive hearings by the Commission. Our 4-year time

limit is also within the general area of limits that had been set by

other States. Some are shorter than ours, and some are longer.

It has not been demonstrated that the legislative action in

establishing the 4-year outer limit within which to file a com-

plaint for medical malpractice is unreasonable. We thus find no

due process violation.

Ill

We turn now to the main thrust of the plaintiffs’ argument.

The appellate court in one of our cases, Woodward v. Burnham

City Hospital, held that section 21.1 of the Limitations Act

constituted special legislation in violation of section 13 of article

IV of the Illinois Constitution of 1970. That section of our

constitution provides:

“The General Assembly shall pass no special or local law

when a general law is or can be made applicable. Whether

a general law is or can be made applicable shall be a

matter for judicial determination.”

The court held that the act conferred a special benefit upon

physicians and hospitals while denying it to all other groups of

health-care providers. This, the court held, was unfair, unjust

and arbitrary and constituted special legislation in violation of

section 13 of article IV of the Constitution of 1970.

The history of the special legislation prohibition of section 22

of article IV of the Constitution of 1870 is exhaustively set for’h

in G. Braden & R. Cohn, The Illinois Constitution: An Anno-

tated and Comparative Analysis 203-26 (1969). Since this book

Al6

was prepared for the 1970 Illinois Constitution Study Commis-

sion, its analysis is most helpful. Section 22 once contained a

long list of specific prohibitions, the original purposes of which

were lost sight of long ago. The 1870 Constitution, however,

contained no equal protection clause and the authors note at

page 221 that the last enumerated prohibition, which concerned

the granting of special privileges, came to be used by the courts

as Illinois’ version of the fourteenth amendment’s equal protec-

tion clause. (See also, Schuman v. Chicago Transit Authority

(1950), 407 Ill. 313, 317.) Authors Braden and Cohn recom-

mended omitting from the draft of any new constitution adopted

by the 1970 constitutional convention the list of specific pro-

hibitions of special and local laws that had been in the 1870

Constitution. They also recommended including in the new con-

stitution an equal protection clause. To support their recommen-

dation, the authors pointed out the difference between “real”

special legislation, such as that specifically prohibited in the

prior constitution which had ceased to be a problem, and non-

real special legislation. Nonreal special legislation was simply

general legislation challenged on equal protection grounds. They

felt that, though the legislature no longer attempted to enact

“real” special legislation, the prohibition against the enactment

of special legislation should be retained in the constitution in

general terms to guard against any attempt to do so. (G. Braden

& R. Cohn, The Illinois Constitution: An Annotated and Com-

parative Analysis 226 (1969).) Braden and Cohn also noted

that section 22 of article IV of the 1870 Constitution contained,

just after the specific prohibitions, a catch-all statement: “In ail

other cases where a general law can be made applicable no

special law shall be enacted.” The authors stated that this provi-

sion had been construed as vesting in the legislature and not the

courts the authority to say if a general law was applicable.

(G. Braden & R. Cohn, The Illinois Constitution: An Annotated

and Comparative Analysis 222 (1969). They suggested that

with the inclusion in a new constitution of a general prohibition

against special legislation there should also be included a provi-

Al7

sion authorizing judicial control over a legislature bent on

evading the Constitution’s provision. Finally, it was suggested

that the provision of the model State constitution covering special

legislation would accomplish these suggested ends. The drafters

of the 1970 Illinois Constitution closely followed Braden’s and

Cohn’s advice. Section 13 of article IV of the 1970 Constitution

is almost identical to section 4.11 of article TV of the model

State constitution. G. Braden & R. Cohn, The Illinois Constitu-

tion: An Annotated and Comparative Analysis 224, 225 (1969).

In Bridgewater v. Hotz (1972), 51 Ill. 2d 103, the court, in

construing section 13 of article IV of the Constitution of 1970,

pointed out that the new constitution rejected the previous rule

allowing the legislature to determine whether a general law could

be made applicable. This court stated, however, that though the

scope of judicial review of legislation is enlarged to that extent,

section 13 of article IV requires no change in the definition of

what is “general and uniform,” “special,” or “local.” Bridgewater

then applied traditional equal protection tests, tests which this

court had used prior to the 1970 Constitution. If there is a

reasonable basis for differentiating between the class to which

the law is applicable and the class to which it is not, the General

Assembly may constitutionally classify persons and objects for

the purpose of legislative regulation and control. Furthermore, if

the classification bears a reasonable and proper relation to the

purposes of the act and the evil it seeks to remedy, it does not

violate the constitutional proscription on special or local laws.

“Whether the course chosen is wise or whether it is the best

means to achieve the desired result it is not a proper subject of

judicial inquiry.” Bridgewater v. Hotz (1972), 51 Ill. 2d 103,

111,

Subsequent to Bridgewater, this court has continued to eval-

uate the validity of legislative classifications by the above tests.

In addition the court has applied these tests interchangeably,

whether the court had under consideration an equal protection

question (Fujimura v. Chicago Transit Authority (1977), 67

Al8

Ill. 2d 506, 512; Hamilton Corp. v. Alexander (1972), 53 Ill.

2d 175, 179), or a special legislation challenge (Kobylanski v.

Chicago Board of Education (1976), 63 Ill. 2d 165). In fact,

in S. Bloom, Inc. v. Mahin (1975), 61 Ill. 2d 70, 77, this court

stated that the Illinois Constitution of 1870 contained no equal

protection clause, “but similar standards are applied to determine

violations of the special legislation provision * * *.” Thus,

though section 13 of article IV of the Constitution of 1970 gives

the court enlarged judicial review in the narrow area of “real”

special legislation, traditional deference is given to legislative

classification in this area as well as when the court is considering

equal protection questions in the guise of special legislation

challenges. See generally Turkington, Equal Protection of the

Laws in Illinois, 25 De Paul L. Rev. 385, 410-22 (1976);

Whalen & Wolff, Constitutional Law: The Prudence of Judicial

Restraint Under the New Illinois Constitution, 22 De Paul L.

Rev. 63, 77-79 (1972); Comment, Medical Malpractice Statute

of Limitations as Special Legislation, 55 Chi.-Kent L. Rev. 519

(1979).

The plaintiffs in this action rely heavily upon several of our

frequently discussed special legislation cases. (Grace v. Howlett

(1972), 51 Ill. 2d 478; Skinner v. Anderson (1967), 38 Ill. 2d

455 (this case will be discussed at length below); Harvey v.

Clyde Park Dist. (1964), 32 Ill. 2d 60.) In fact, however,

these cases illustrate the equal protection classification test out-

lined above. Though these cases were phrased in special-legisla-

tion language, they clearly applied an equal protection standard.

Although the statutes in each case operated uniformly on all

members of a class, no sound basis or rational reason existed

for treating that particular class as separate from other classes for

the purposes of legislation. In the cases now before us there

clearly is a sound and rational basis for the classification at issue.

Plaintiffs in the Woodward case first contend that the limita-

tions statute violates section 13 of article IV because it sets

medical malpractice actions apart from other professional mal-

Al9

practice actions. This contention has no merit. When it enacted

this statute, the legislature was directly addressing itself to a

medical malpractice problem. Its action was supported by

recommendations of numerous commissions and authors that the

“long tail” of the discovery rule be curtailed by adding to the

limitation period an outer time limit within which medical mal-

practice action must be filed. Our legislature’s action is also

supported by reference to many other jurisdictions. The legisla-

tures of many other States have enacted similar limitations on

medical malpractice actions. These statutes have been upheld

uniformly by courts of review. These statutes and these cases

have been set out above at length. Thus we must conclude that

there was a reasonable attempt to remedy what the legislature

perceived to be a medical malpractice insurance crisis. Whether

the course was wise or the best means of accomplishing the result

desired is a matter for legislative determination. Bridgewater

V, Hotz (1972), 51 Ill. 2d 103.

A more difficult question concerning the legislative classi-

fication does exist, however: Is there a reasonable basis

for differentiating between the class to whom the statute applies

(physicians and hospitals) and other groups of providers of

health care to whom this statute does not apply? We have noted

earlier in this opinion that there is a wide variance in the statutes

of the different States as to the health-care providers covered by

their statute of limitations. Our statute is one of the more narrow.

However, whether the statute covers all medical personnel or

particular groups within the broader class, the courts in the

cases cited above have upheld the classifications of the

legislatures.

The crisis which confronted the legislatures in the mid-1970's

concerned the rapid increase in the premiums for medical mal-

practice insurance by some companies and the withdrawal of

other insurance companies from the medical malpractice insur-

ance field. The object of the legislation was to insure the con-

tinued availability of this type of insurance to those who were

A20

affected by the crisis and thus to insure the continuation of

health services from these affected groups. Much empirical data

has established that physicians and hospitals must be set apart

from other members of the health-care class insofar as medical

malpractice insurance is concerned. The National Association

of Insurance Commissioners, an association of insurance depart-

ments of the various States, in 1977 published “NAIC Mal-

practice Claims,” which reflects that claims against physicians

and surgeons constituted 59% of all claims paid by count

and 73% of the total amount of all claims that were paid.

Claims against hospitals composed 36% of all claims paid by

count and 25% by amount. Thus physicians and hospitals to-

gether accounted for 95% of the total number of medical mal-

pratice claims and 98% of the dollar amount of those claims

paid. In Report and Recommendation of the Medical Injury

Insurance Reparations Commission to Governor Dan Walker

and Members of the 79th General Assembly (Ill. 1976), a

special legislative commission report sets out a table compiled by

the National Association of Insurance Commissioners reflecting

claims closed after July 1, 1975, showing that of a total of

3,298 claims, 1,815 were against physicians and surgeons and

1,288 were against hospitals. (Report at 20.) In a section of

the above report headed “The Impact of Malpractice Claims on

the Insurance Mechanism and Health Care Delivery System,” the

report states in summary:

“At the present time, the malpractice crisis has not reached

these other health care providers to the same degree that it

has reached hospitals and physicians, although the self-

employed podiatrist seems to be approaching the problem.”

Report at 29.

What is more, much constitutionally valid classification

already exists in the medical field, based on the obvious differ-

ence between different types of medical professionals. The

dissenting judge in the appellate court decision in Woodward

v. Burnham City Hospital (1978), 60 Ill. App. 3d 285, 289,

A21

pointed out that the legislature had already classified various

groups of medical personnel and hospitals and institutions for

purposes of licensing and regulation. Recently the United States

Supreme Court sustained an extreme example of classification in

this field. In Friedman v. Rogers (1979), 440 U.S. 1, 59 L. Ed.

2d 100, 99 S. Ct. 887, the court upheld the Texas legislature’s

right to differentiate between two different groups of optometrists,

each group having identical training, education, and licensing

standards. Both groups practiced the profession; however, one

group was self-employed and the other was not. The legislature

had given one group of optometrists special preference in repre-

sentation on a board. The court concluded that the classification

reasonably related to the legitimate purpose of the Act.

We conclude that there was a reasonable basis for differ-

entiating between physicians and hospitals and other members of

the general class of health-care providers for the purpose of this

particular legislation. The General Assembly in responding to

the medical malpractice insurance crisis drew the statute very

narrowly and encompassed within the classification to whom the |

statute applied only those segments of the health-care providers

most acutely affected by the crisis. (In effect, our limited statute

thus preserves far more of the discovery rule than the compre-

hensive health-care-provider statutes cited earlier.) “ ‘If the law

presumably hits the evil where it is most felt, it is not to be

overthrown merely because there are other instances to which it

might have been applied.’ [Citations.]” (Youhas v. Ice (1974),

56 Ill. 2d 497, 502.) “We would also remark that so far as

legislative classification is concerned, it has been recognized that

evils in the same field may be of different dimensions and reform

may take one step at a time. The legislature may address itself

to one stage of a problem and not take action at the same

time as to other phases.” Illinois Coal Operators Associa-

tion v. Pollution Control Board (1974), 59 Ill. 2d 305, 312-15.

The appellate court in Woodward v. Burnham City Hospital

found Skinner v. Anderson (1967), 38 Ill. 2d 455, controlling,

A22

and the plaintiffs now in this court rely heavily on that decision.

In Skinner v. Anderson this court held invalid section 29 of the

Limitations Act, which was added by an amendment in 1963.

(Ill. Rev. Stat. 1965, ch. 83, par. 24(f).) The amendment pur-

ported to immunize architects and contractors from liability

upon causes of action that did not accrue within 4 years after the

architect or contractor performed his services. This court held

that the statute granted to architects and contractors a special

and exclusive immunity and thus constituted a violation of

section 22 of article IV of the Constitution of 1870. The court

pointed out that of all of those whose negligence in connection

with the construction of a structure might result in injury to a

person that statute singles out only the architect and contractor

and grants them immunity. This court stated, however, that

though section 22 of article IV of the Constitution of 1870 did

not prohibit legislative classification, it did require that the

legislation be reasonably related to the legislative purpose.

Where that relationship is nonexistent the statute contravenes

the constitutional prohibitiXn. The court also stated:

“*That the statute operates uniformly upon all members of

a class created as the beneficiaries of the act is not the sole

test to be applied, but in order to avoid the constitutional

inhibition * * * it must also appear that there is a sound

basis, in reason and principle, for regarding the class of

individuals as a distinct and separate class for the purpose

of the particular legislation.’ [Citation.]” (38 Ill. 2d 455,

461.)

We do not agree that Skinner v. Anderson is controlling.

No doubt a general statute of limitations which was not limited

in its applicability to only physicians and hospitals but applied

to all personnel and institutions administering health care would

have achieved whatever end this legislative response to the medi-

cal malpractice insurance crisis was seeking to achieve. In fact,

a statute of limitations that would apply to all professional

malpractice cases would have achieved the result. The sentence

in section 13 of article TV of our constitution—Whether a gen-

A23

eral law is or can be made applicable shall be a matter for

judicial determination—does not prohibit classification of per-

sons and objects. As noted in Skinner v. Anderson, however, the

classifications must be reasonably related to the legislative

purpose and it must appear that there is a sound basis for regard-

ing the class as distinct and separate for the purpose of the

legislation. Our analysis of the statute in our earlier discussion

of the classification issue compels us to hold that the statute is not

defective when judged by the standards of Skinner v. Anderson.

Our conclusion that Skinner v. Anderson does not control is

emphasized by a recent case. In Fujimura v. Chicago Transit

Authority (1977), 67 Ill. 2d 506, the court upheld the validity

of a statute which required that within 6 months from the date of

the injury anyone about to commence an action against the

Chicago Transit Authority because of the injury must file a state-

ment with the Authority. Statutes regarding similar notice to

other governmental units required that the same be given within

1 year. This court, applying the traditional equal protection

analysis, found that there was a rational basis for supporting a

shorter notice period and statute of limitations for the transit

authority.

IV

Having concluded that section 21.1 of the Limitations Act

(Ill. Rev. Stat. 1977, ch. 83, par. 22.1) is not special legisla-

tion within the proscription of section 13 of article IV of the

Constitution of 1970, we turn to several remaining issues in

the Anderson case. After the trial court had dismissed plaintiffs

Andersons’ original complaint, an amended complaint was

filed. It is argued that the amended complaint is based on the

theory that the defendant had fraudulently concealed his negli-

gent acts from the plaintiffs. Plaintiffs now contend that section

22 of the Limitations Act (Ill. Rev. Stat. 1975, ch. 83, par.

23) tolled the running of the time limitation of section 21.1.

Section 22 provides:

“If a person liable to an action fraudulently conceals

the cause of such action from the knowledge of the person

A24

entitled thereto, the action may be commenced at any

time within five years after the person entitled to bring

the same discovers that he has such cause of action, and

not afterwards.”

Although the trial court held that the allegations of fraudulent

concealment were sufficient, it nonetheless held that the cause

of action was barred by section 21.1.

The complaint alleges that plaintiff Marilyn Anderson was

a patient of the defendant from September 1972 through May

1973. The child was born on May 20, 1973. The complaint

was filed June 23, 1977. It is alleged that the plaintiffs dis-

covered the acts complained of on January 26, 1976. Applying

the 4-year maximum limitation period of the medical mal-

practice limitation statute (section 21.1) the earliest date on

which the action would be barred would be the first part of

September 1976, and the latest date would be the last part of

May 1977. Thus after the plaintiffs discovered the basis for

their cause of action on January 26, 1976, the statute of

limitations had not run and would not run for a minimum of 7

months or a maximum of 16 months. If at the time the plaintiff

discovers the “fraudulent concealment” a reasonable time re-

mains within the applicable statute of limitations, section 22 of

the Limitations Act does not toil the running of the limitation

period. (Skrodzki v. Sherman State Bank (1932), 348 Ill. 403,

407, 409; Solt v. McDowell (1971), 132 Ill. App. 2d 864,

867.) We cannot say that the trial court erred in holding that

plaintiffs’ cause of action was barred. It appears that had they

exercised diligence after discovery of the alleged fraud their

action would not have been barred by the statute.

By discussing section 22 of the Limitations Act we do not

hold that it is applicable in medical malpractice cases. That

question is not before us. There are, however, uncertainties

concerning the applicability of section 22 of the Limitations

Act which we need not resolve in this opinion but to which

we invite the attention of the Genera! Assembly.

A25

Vv

The Andersons raise one final issue. Their complaint alleges

that Mrs. Anderson was under the care of the defendant from

September 1972 through May 1973. There is no specific allega-

tion as to when the rubella test was given, when the fetus be-

came viable, or when any of the defendant’s negligent acts oc-

curred. It is specifically alleged that the child was born May 20,

1973, and the plaintiffs have focused on that date as the date of

injury. This appears to have been accepted by the defendant and

by the trial court. Applying the present 4-year limitation period

of section 21.1, the action had to be filed by May 20, 1977.

It was not filed until June 23, 1977. However, prior to Septem-

ber 19, 1976, section 21.1 provided that a medical malpractice

action had to be filed within 2 years after the discovery of

injury but in no event more than 5 years after the date of the

act or omission. The Andersons now argue that since they did

not discover that they had a cause of action against the defend-

ant until January 26, 1976, they did not have a reasonable time

after the effective date of the amendment to section 21.1 within

which to file theiz-eemplaint. They acknowledge that the legisla-

ture may shorten the time within which an action must be

filed and that the shortened period will apply to existing claims

provided a reasonable time remains within which to file the

complaint. They now complain the trial court failed to conduct

a hearing as to whether a reasonable time had been afforded

them within which to bring their action.

The complaint contains no allegation that the Andersons

did not have a reasonable time under the 1976 amendment

within which to bring their action. They did not request a

hearing on this question in the trial court. There is no indica-

tion in the order of the court that it did not consider the reason-

ableness of the time. Accepting the Andersons’ argument that

the limitation period ran from the birth of the child, the shortened

4-year limitation period did not expire until May 20, 1977, 8

A26

months after September 19, 1976, the effective date of the

amendment; 9 months after its adoption on August 20, 1976;

and 16 months after they alleged that they learned that they

had a claim against the defendant. Under these facts we can-

not say that the trial court erred in applying the shortened

limitation period of the 1976 amendment to section 21.1.

For the reasons given above, the judgment of the appellate

court is affirmed in cause No. 50880, Anderson v. Wagner.

As to cause Nos. 50980 and 50981, Woodward v. Burnham

City Hospital, the judgment of the appellate court is reversed

and the judgment of the circuit court of Champaign County is

affirmed.

50880—Judgment affirmed.

50980, 50981—Appellate court reversed;

circuit court affirmed.

A27

APPENDIX B

Illinois Supreme Court

Clell L. Woods, Clerk

Supreme Court Building

Springfield, Ill. 62706

(217) 782-2035

March 28, 1980

Leonard M. Ring & Associates

Attorneys at Law

111 W. Washington St., S#1333

Chicago, IL 60602

Nos. 50880—Thomas Anderson, et al., etc., appellants, vs.

50980 William L. Wagner, M. D., et al., etc., appellees.

50981 Appeal, Appellate Court, Fourth District.

Cons.

The Supreme Court today denied the petitions for rehearing

in the above entitled cause. Pages 3 and 4 of the opinion were

modified upon such denial and a copy of each of said page, as

modified, is enclosed.

Very truly yours,

/s/ Clell L. Woods

Clerk of the Supreme Court

A28

APPENDIX C

Circuit Court of Illinois

Sixth Judicial Circuit

Chambers of Creed D. Tucker, Circuit Judge

Urbana, Illinois, Telephone 384-3705, Area Code 217

August 15, 1977

Leonard M. Ring, Esq.

Attorney at Law

111 West Washington Street

Chicago, Illinois 60602

Re: Woodward v. Burnham City Hospital, et al.

No. 76-L-1599

Dear Mr. Ring:

The following docket entry has been made in the above-entitled

case this date:

“Ruling on Motions to Dismiss by all Defendants, here-

tofore taken under advisement. The Court, having con-

sidered the briefs and arguments of the parties, finds there

is a presumption that the statutes enacted by the legisla-

ture are constitutional and that the legislature has provided

for the exceptional nature of cases such as herein con-

sidered. Further finding that this court need not determine

in this cause the breadth of the terms “physician” and

“hospital”. Further finding by the court that Section 22.1,

Chapter 83, Ill. Rev. Stats., 1975 is constitutional. Further

finding by the court the statute of limitations set forth

in Section 22.1 is reasonable. Further finding by the court

that Plaintiff has not complied with Section 22.1. Case

dismissed. Cause stricken. Written Order to be entered.”

Yours very truly,

/s/ Creed D. Tucker

Creed D. Tucker

CDT/ja Circuit Judge

A29

In the Circuit Court of the Sixth Judicial District

Champaign County, Illinois

Charles C. Woodward and 7

Carol C. Woodward,

Plaintiffs,

VS.

No. 76-L-1599

Burnham City Hospital, a corporation,

and George Green and Stan J.

Bobowski,

Defendants. :

ORDER

Upon motions by defendant to dismiss the action on the

ground that the action did not commence by the filing of a

Complaint within the time required by Section 83, Section

22.1 of Illinois Revised Statutes, Briefs having been considered,

arguments heard and the Court being fully advised in the

premises;

It Is Hereby Ordered and Adjudged that the action be and

is dismissed, cause stricken.

Enter:

Judge

A30

State of Illinois i

County of Champaign

In the Circuit Court of the Sixth Judicial Circuit

Champaign County, Illinois

Charles C. Woodward and 7

Carol C. Woodward,

Plaintiffs,

VS.

> No. 76-L-1599

Burnham City Hospital, a corporation,

and George Green and Stan J.

Bobowski,

Defendants. ,

PLAINTIFFS’ RESPONSE TO DEFENDANT BURNHAM

CITY HOSPITAL’S MOTION TO DISMISS

Now come the plaintiffs Charles C. Woodward and Carol

C. Woodward, by their attorney, Leonard M. Ring, and re-

sponding to defendant Burnham City Hospital’s Motion to Dis-

miss, states that defendant’s assertion that plaintiffs’ claim is

barred by the statute of limitations, Ill. Rev. Stat. Ch. 83, § 221

(1975), is incorrect, since said statute is unconstitutional in

violation of one or more of the following constitutional pro-

Visions:

1. United States Constitution, Amend. XIV, due process

clause.

2. United States Constitution, Amend. XIV, equal pro-

tection clause.

3. Illinois Constitution of 1970, Article 4, Section 13,

special legislation.

4. Illinois Constitution of 1970, Article 1, Section 2,

due process.

5. Illinois Constitution of 1970, Article 1, Section 2,

equal protection.

A31

6. Illinois Constitution of 1970, Article 1, Section 16,

grant of special privilege of immunity.

Wherefore, the plaintiffs, Charles C. Woodward and Carol

C. Woodward, pray that the defendant, Burnham City Hospital’s

Motion to Dismiss be denied.

Leonard M. Ring

Attorney for Plaintiffs

Leonard M. Ring and Associates

111 West Washington Street

Suite 1333

Chicago, Illinois 60602

Phone—(312) 332-1765

A32

State of Illinois ,

County of Champaign

In the Circuit Court of the Sixth Judicial Circuit

Champaign County, Illinois

Charles C. Woodward and 7

Carol C. Woodward,

Plaintiffs,

VS.

> No. 76 L 1599

Burnham City Hospital, a corporation,

and George Green and Stan J.

Bobowski,

Defendants.

PLAINTIFFS’ RESPONSE TO DEFENDANT GREEN’S

MOTION FOR INVOLUNTARY DISMISSAL

Now come the plaintiffs, Charles C. Woodward and Carol C.

Woodward, by their attorney, Leonard M. Ring, and responding

to defendant George Green’s Motion for Involuntary Dismissal,

states that defendant’s assertion that plaintiffs’ claim is barred by

the statute of limitations, Ill. Rev. Stat. Ch. 83, § 221 (1975),

is incorrect, since said statute is unconstitutional in violation of

one or more of the following constitutional provisions:

1. United States Constitution, Amend. XIV, due process

clause.

2. United States Constitution, Amend. XIV, equal pro-

tection clause.

3. Illinois Constitution of 1970, Article 4, Section 13,

special legislation.

4. Illinois Constitution of 1970, Article 1, Section 2, due

process.

A33

5. Illinois Constitution of 1970, Article 1, Section 2,

equal protection.

6. Illinois Constitution of 1970, Article 1, Section 16,

grant of special privilege or immunity.

Wherefore, the plaintiffs, Charles C. Woodward and Carol C.

Woodward, pray that the defendant George Green’s Motion for

Involuntary Dismissal be denied.

eee reer tres

Leonard M. Ring

Attorney for Plaintiffs

Leonard M. Ring and Associates

111 West Washington Street

Suite—1333

Chicago, Illinois 60602

Phone—(312) 332-1765

A34

APPENDIX D

No. 50980

In the

Supreme Court of Illinois

Carol C. Woodward, as Administrator of the Estate of Charles

C. Woodward, deceased, and Carol C. Woodward, Individu-

ally,

VS. Appellant

Burnham City Hospital, a corporation, and George Green and

Stan J. Bobowski

Appellees

NOTICE OF APPEAL TO THE SUPREME COURT

OF THE UNITED STATES

Notice Is Hereby given that Carol C. Woodward, as Admin-

istrator of the Estate of Charles C. Woodward, deceased, and

individually, the appellant above named, hereby appeals to the

Supreme Court of the United States from the final judgment of

the Supreme Court of Illinois entered in this action on October

2, 1979, rehearing denied on March 28, 1980.

This appeal is taken pursuant to 28 U.S.C. Sec. 1257(2).

/s/ Leonard M. Ring

Leonard M. Ring,

Attorney for Appellant,

Leonard M. Ring & Associates Carol C. Woodward

111 W. Washington St.

Chicago, Illinois 60602

(312) 332-1765

A35

No. 50980

In the

Supreme Court of Illinois

Carol C. Woodward, as Administrator of the Estate of Charles

C. Woodward, deceased, and Carol C. Woodward, Individu-

ally,

Appellant

vs.

Burnham City Hospital, a corporation, and George Green and

Stan J. Bobowski

Appellees

PROOF OF SERVICE OF NOTICE OF APPEAL

Reno, O’Byrne & Kepley Phillips, Phebus, Tummelson,

501 W. Church St. Ryan

Champaign, Ill. 61820 136 W. Main Street

Urbana, Ill. 61801

Thomas Mamer, Haughey

& Miller Anderson, Erickson & Davis

30 Main Street—Box 967 Room 200 Irish-

Champaign, Ill. 61820 Behnke Bldg.

225 South Main St.

Bennett Willoughby & Latshaw Decatur, Il. 62523

140 S. Water St.

PO Box 1784 McLaughlin Kinser & Bryant

Decatur, Ill. 62523 135 South LaSalle St.

Chicago, Illinois 60603

A36

Please Take Notice that on the 20th day of June, 1980, we

shall file with the Clerk of the Supreme Court of Illinois a

Notice of Appeal to the Supreme Court of the United States

from the judgment entered in the above entitled cause by the

Supreme Court of Illinois on October 2, 1979, petition for

rehearing denied on March 28, 1980, a copy of which notice of

appeal is hereby attached and served upon you.

| SRE Fe ven Sear near oie NOTIN Ca oa

Leonard M. Ring,

Attorney for Appellant

111 W. Washington Street

Chicago, Illinois 60602

(312) 332-1765

State of Illinois

County of Cook

The undersigned, after being duly sworn on oath, deposes and

says that a copy of the Aforesaid Notice and attached Notice of

Appeal was served to the attorneys of record for the defendants

at their respective addresses by deposting same in the U. S. mail

at 111 W. Washington, Chicago, Illinois, postage prepaid, at

5:00 p.m. on June 19, 1980.

/s/ Helen E. Marada

Subscribed and sworn to before me this 19th day of June,

1980.

Albena Ruther

Notary Public

(Seal)