Find Legal Information

Docket No. 89144-Agenda 28-September 2000.

VIRGINIA FERGUSON, as Adm'r of the Estate of FranklinFerguson, Deceased, Appellant, v. DR. ALICIA McKENZIE et

al., Appellees.

Opinion filed January 29, 2001.

JUSTICE FREEMAN delivered the opinion of the court:

In Tosado v. Miller, 188 Ill. 2d 186 (1999), adult plaintiffsbrought medical malpractice actions against a county hospital andits employees. A plurality of this court concluded that theapplicable statute of limitations was the one-year limitationsperiod of the Local Governmental and Governmental EmployeesTort Immunity Act (Tort Immunity Act or Act) (745 ILCS10/8-101 (West 1998)) rather than the two-year limitations periodfor medical malpractice actions generally, as prescribed in theCode of Civil Procedure (Code) (735 ILCS 5/13-212(a) (West1998)).

In this case, we are asked to determine the applicablelimitations period where an heir in a wrongful death claim was aminor when the cause of action accrued, but whose claim againstCook County was not brought until after her nineteenth birthday.We hold that the one-year limitations period of the Tort ImmunityAct ran on her claim. Accordingly, it was time-barred.

BACKGROUND

The record contains the following pertinent evidence. FranklinFerguson (decedent) went to the Fantas Clinic of Cook CountyHospital for removal of cataracts. Decedent, 63 years old, was adiabetic for over 25 years and previously had a heart attack. Anelectrocardiogram (EKG) produced abnormal findings. The clinic,after subsequent evaluation, cleared decedent for surgery, localanesthetic only. On October 10, 1991, decedent underwentremoval of a cataract in his left eye. Later that evening at hishome, decedent suffered cardiac arrest and died.

At the time of his death, decedent had a wife, VirginiaFerguson (plaintiff), and five children. Four of his children wereadults: Mary Benson, Deborah Emerson, and Brian and StewartFerguson. A daughter, Karen Ferguson, was a minor; she was bornon May 7, 1974, and was 17 years and 5 months of age at the timeof decedent's death.

On October 7, 1993, less than two years but more than oneyear after decedent's death, plaintiff, individually and asadministrator of decedent's estate, brought a medical malpracticeaction in the circuit court of Cook County. Plaintiff named asdefendants Drs. Alicia McKenzie, Jeffrey Nichols, CatherineKallal, Alan Axelrod, and Maan Elkhadra. The complaintcontained, inter alia, a wrongful-death count that alleged damagesfor injuries to decedent's estate, but did not identify the heirs onwhose behalf plaintiff brought the action. We note that Karen was19 years and 5 months of age when plaintiff filed the originalcomplaint.

On January 11, 1994, plaintiff filed an amended complaint.Plaintiff amended the original wrongful-death count by namingherself and decedent's four adult children as the heirs on whosebehalf plaintiff brought the action. Also, plaintiff added a separatewrongful-death count, brought specifically on behalf of Karen,which named Cook County as a defendant. Karen was 19 yearsand 8 months of age.

Defendants moved for summary judgment. The motion was"aimed at one issue only: whether the lawsuit was timely filed."Defendants argued that plaintiff failed to file the complaint withinone year of the occurrence, as required under section 8-101 of theTort Immunity Act (745 ILCS 10/8-101 (West 1994)). Plaintiffresponded that the complaint was timely because section13-212(a) of the Code (735 ILCS 5/13-212(a) (West 1994))allows an adult two years to file a medical malpractice claim andsection 13-212(b) of the Code (735 ILCS 5/13-212(b) (West1994)) allows a minor eight years to file a medical malpracticeclaim.

The trial court ruled that the one-year limitations period of theTort Immunity Act applied to all medical malpractice claimsbrought against local governmental entities and their employees,including those claims brought on behalf of minors. Accordingly,the trial court granted summary judgment in favor of defendants.The appellate court affirmed. No. 1-98-0617 (unpublished orderunder Supreme Court Rule 23 (166 Ill. 2d R. 23(c)). We allowedplaintiff's petition for leave to appeal (177 Ill. 2d R. 315(a)), andnow affirm the appellate court.

DISCUSSION

The purpose of summary judgment is not to try a question offact, but to determine whether one exists. Gilbert v. SycamoreMunicipal Hospital, 156 Ill. 2d 511, 517 (1993). Summaryjudgment is appropriate only where "the pleadings, depositions,and admissions on file, together with the affidavits, if any, showthat there is no genuine issue as to any material fact and that themoving party is entitled to a judgment as a matter of law." 735ILCS 5/2-1005(c) (West 1998). In an appeal from the grant ofsummary judgment, review is de novo. Crum & Forster ManagersCorp. v. Resolution Trust Corp., 156 Ill. 2d 384, 390 (1993).

We are asked to consider another interplay between section13-212 of the Code and section 8-101 of the Tort Immunity Act.Section 13-212 states in pertinent part:

"Physician or hospital. (a) Except as provided inSection 13-215 of this Act, no action for damages forinjury or death against any physician *** arising out ofpatient care shall be brought more than 2 years after thedate on which the claimant knew, or through the use ofreasonable diligence should have known, or receivednotice in writing of the existence of the injury or death forwhich damages are sought in the action, whichever ofsuch date occurs first, but in no event shall such action bebrought more than 4 years after the date on whichoccurred the act or omission or occurrence alleged in suchaction to have been the cause of such injury or death.

(b) Except as provided in Section 13-215 of this Act,no action for damages for injury or death against anyphysician *** arising out of patient care shall be broughtmore than 8 years after the date on which occurred the actor omission or occurrence alleged in such action to havebeen the cause of such injury or death where the personentitled to bring the action was, at the time the cause ofaction accrued, under the age of 18 years; provided,however, that in no event may the cause of action bebrought after the person's 22nd birthday." 735 ILCS5/13-212(a), (b) (West 1994).

Section 8-101 of the Tort Immunity Act provides:

"No civil action may be commenced in any courtagainst a local entity or any of its employees for anyinjury unless it is commenced within one year from thedate that the injury was received or the cause of actionaccrued. For purposes of this Article, the term 'civilaction' includes any action, whether based upon thecommon law or statutes or Constitution of this State." 745ILCS 10/8-101 (West 1994).

I. Tosado

Plaintiff concedes that her claims and those of decedent's fouradult children are time-barred under Tosado v. Miller, 188 Ill. 2d186 (1999). As mentioned earlier, in Tosado, a plurality of thiscourt concluded that the one-year limitations period of section8-101 of the Tort Immunity Act governs medical malpracticecases brought against local governmental entities and theiremployees rather than the two-year limitations period of section13-212(a) of the Code.

Justice Miller, writing for himself and Justice Bilandic,focused on the nature of the defendants rather than on the type ofaction. He observed that Tort Immunity Act section 8-101 appliesonly to defendants that are local governmental entities and theiremployees, while Code section 13-212(a) applies to the broadercategory of any physician, dentist, registered nurse, or hospitaldescribed therein. Justice Miller reasoned that Tort Immunity Actsection 8-101 controlled because it was more specific than Codesection 13-212(a). Tosado, 188 Ill. 2d at 194-95 (plurality op.).

Justice Heiple disagreed with the characterization of TortImmunity Act section 8-101 as more specific than Code section13-212(a). He observed that section 8-101 of the Act is moregeneral than section 13-212(a) of the Code because it applies toany civil action, not only to medical malpractice actions. JusticeHeiple reasoned that, "to the extent that section 8-101 is moregeneral than section 13-212(a), this is one of those instanceswhere 'the legislature intended to make the general actcontrolling' " and that "section 8-101 was designed to applybroadly to any possible claim against a local governmental entityand its employees." Tosado, 188 Ill. 2d at 199 (Heiple, J., speciallyconcurring). Justice Freeman joined in Justice Heiple's specialconcurrence to this extent. Tosado, 188 Ill. 2d at 198 (Freeman,C.J., specially concurring).

In this case, the appellate court relied on Tosado inconcluding that section 8-101 of the Tort Immunity Act appliedto Karen's claim. However, the plaintiff in Tosado was an adult;that case did not present us with the claim of a minor. Here, it isonly Karen's claim that is at issue.

II. The Present Case

Pointing to section 13-212(b) of the Code, plaintiff contendsthat she had until Karen's twenty-second birthday to bring Karen'swrongful death claim against the county and its physicianemployees. Therefore, according to plaintiff, Karen's claim wastimely.

In their brief, defendants state that they "have never assertedthat the statute of limitations would expire against a minor whilehe or she was still a minor." (Emphasis in original.) Accordingly,defendants acknowledge that plaintiff was not obligated to fileKaren's claim while Karen was still a minor. However, defendantscontend that once Karen reached 18 years of age, the one-yearlimitations period of section 8-101 of the Tort Immunity Actbegan to run. Plaintiff did not bring Karen's wrongful death claimagainst the county and its physician employees until after hernineteenth birthday. Therefore, according to defendants, the claimwas untimely.

We note that plaintiff refers to section 13-212(b) of the Codeas a "statute of limitations," or its eight-year repose period as a"limitations period." Such references are inaccurate. Section13-212(b) is a statute of repose. See Antunes v. Sookhakitch, 146Ill. 2d 477, 486 (1992) (referring to the repose period of section13-212(b)). A statute of repose differs from a statute oflimitations. A statute of limitations governs the time within whichlawsuits may be commenced after a cause of action has accrued.However, a statute of repose extinguishes the action itself after afixed period of time, regardless of when the action accrued. 51Am. Jur. 2d Limitation of Actions