# Jurisdictional Statement — Woodward v. Burnham City Hospital

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Jurisdictional Statement
- **Published:** January 1, 1980
- **Citation:** 449 U.S. 807

## Text

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 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.

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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)

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385006_2604%3A1. Public record. Not legal advice.