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Docket No. 84712-Agenda 26-September 1998.

LINNETTE CONCEPCION TOSADO, Appellant, v. A. MILLER et al., Appellees.-GAIL PHIPPS, Appellant, v.LINCOLN MEDICAL CENTER, LTD., et al., Appellees.

Opinion filed October 21, 1999.

JUSTICE MILLER delivered the judgment of the court:

Plaintiffs brought separate actions in the circuit court of Cook County seeking to recover damages against defendants foralleged medical malpractice. Defendants were local public entities or their employees. In each case, defendants filedmotions to dismiss. In the motions, defendants alleged that the one-year limitation period found in section 8-101 of theLocal Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/8-101 et seq.(West 1996)) barred plaintiffs' actions. The circuit court denied defendants' motions to dismiss. The appellate courtconsolidated these cases on appeal and reversed. 293 Ill. App. 3d 544. We allowed plaintiffs' joint petition for leave toappeal. 177 Ill. 2d R. 315(a). In addition, we granted the Illinois Trial Lawyers Association leave to submit a brief asamicus curiae. 155 Ill. 2d R. 345. We now affirm the judgment of the appellate court.

BACKGROUND

Cause No. 92-L-4475

Plaintiff, Linnette Concepcion Tosado, commenced her action on April 10, 1992, by filing a complaint in the circuit courtof Cook County. The complaint alleged that Drs. Miller, Kopolovic, Cohen, Barnett, and Padilla, all Cook County Hospitalemployees, were negligent in failing to assess the likelihood of scarring in connection with her surgery. The complaintfurther alleged that defendants were negligent in failing to warn her of the risks and consequences associated with thesurgery and that her consent to the surgery was therefore uninformed.

Defendants filed a motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West1992)). In their motion, defendants argued that Tosado's claim must fail because her complaint was filed more than oneyear after the date of the injury or discovery of a cause of action. Defendants relied on the one-year limitation periodcontained in section 8-101 of the Tort Immunity Act. Following a hearing, the trial judge denied defendants' motionbelieving that a two-year statute of limitation applied. The trial judge, however, found that the case involved a question oflaw as to which there is a substantial ground for difference of opinion and certified to the appellate court, in substance, thefollowing question:

In a medical malpractice case against a local entity and/or its employees, does the one-year limitation period in the TortImmunity Act or the two-year limitation period in section 13-212(a) of the Code of Civil Procedure (735 ILCS 5/13-212(a)(West 1992)) apply?

Defendants filed a petition for leave to appeal in the appellate court and leave was granted. The appellate court consolidatedthis cause with cause No. 94-L-15720 and reversed the circuit courts' denial of defendants' motions to dismiss. 293 Ill.App. 3d 544. In doing so, the appellate court held that "the one-year limitations period of the Tort Immunity Act controlsbecause it is a more specific statute and because this construction comports with the plain language of the Tort ImmunityAct." 293 Ill. App. 3d at 546. We allowed plaintiffs' joint petition for leave to appeal. 177 Ill. 2d R. 315(a).

Cause No. 94-L-15720

In cause No. 94-L-15720, plaintiff, Gail Phipps, commenced her action on December 12, 1994, by filing a complaint in thecircuit court of Cook County. Phipps subsequently filed a nine-count amended complaint. According to the allegations inthe amended complaint, defendants, Cook County Hospital, Dr. K. Naidoo, an employee of the hospital, and LincolnMedical Center, Ltd., a professional medical corporation, were negligent in providing Phipps medical care during herpregnancy.

Defendants filed a motion to dismiss counts IV through IX of the amended complaint, those counts naming Cook CountyHospital and its employee, Dr. K. Naidoo, as defendants, pursuant to section 8-101 of the Tort Immunity Act (745 ILCS10/8-101 et seq. (West 1996)). Counts I through III were filed against a private corporation and are not at issue in thisappeal. In their motion, defendants argued that Phipps' action was untimely under the one-year limitation period found insection 8-101 of the Tort Immunity Act. Phipps responded by asserting that section 13-212(a) of the Code of CivilProcedure set forth the applicable limitation period.

Following a hearing, the trial judge denied defendants' motion. The trial judge, however, found that the order involved aquestion of law about which there are substantial grounds for a difference of an opinion. The trial judge certified to theappellate court substantially the same question as did the judge in cause No. 92-L-4475.

Defendants filed a petition for leave to appeal in the appellate court. The appellate court granted defendants' petition. Asnoted above, the appellate court consolidated these causes for appeal and reversed the circuit courts' denial of defendants'motions. 293 Ill. App. 3d 544. We allowed plaintiffs' joint petition for leave to appeal. 177 Ill. 2d R. 315(a).

DISCUSSION

The issue presented in this case is whether the two-year limitation period in section 13-212(a) of the Code of CivilProcedure or the one-year limitation period in section 8-101 of the Tort Immunity Act applies to medical malpracticeactions against local governmental entities and/or their employees.

Section 13-212 of the Code provides in pertinent part:

"Physician or hospital. (a) Except as provided in Section 13-215 of this Act, no action for damages for injury or deathagainst any physician, dentist, registered nurse or hospital duly licensed under the laws of this State, whether basedupon tort, or breach of contract, or otherwise, arising out of patient care shall be brought more than 2 years after thedate on which the claimant knew, or through the use of reasonable diligence should have known, *** of the injury ordeath ***." 735 ILCS 5/13-212(a) (West 1992).

Section 8-101 of the Tort Immunity Act provides:

"No civil action may be commenced in any court against a local entity or any of its employees for any injury unless itis commenced within one year from the date that the injury was received or the cause of action accrued. For purposesof this Article, the term 'civil action' includes any action, whether based upon the common law or statutes orConstitution of this State." 745 ILCS 10/8-101 (West 1996).

We believe the language of the statutes is plain and unambiguous. As such, there is no occasion to use aids in theconstruction of either statute and the plain meaning of the statutes should prevail. Fosco v. Illinois Municipal RetirementFund, 213 Ill. App. 3d 842 (1991). However, because either section 13-212(a) of the Code or section 8-101 of the TortImmunity Act could apply to plaintiffs' actions in the absence of the other, we must decide which of these conflictingprovisions must be given effect. In doing so, we must determine which of the two statutes more specifically applies to thecase at hand. Zimmer v. Village of Willowbrook, 242 Ill. App. 3d 437, 442 (1993).

Plaintiffs argue that section 13-212(a), containing the two-year limitation period, is the more specific statute andaccordingly should be applied to this case. They assert that section 13-212 more narrowly defines defendants, specifyingphysicians, dentists, registered nurses and hospitals, rather than setting forth the broader category of all governmentalentities and their employees. In addition, plaintiffs argue that section 13-212 more narrowly defines plaintiffs and thenature of the claim, specifying that the action must arise out of patient care, as opposed to the broader language of section8-101 that applies to any injury.

In support of these contentions, plaintiffs rely upon two appellate court decisions, Lanxon v. Magnus, 296 Ill. App. 3d 377(3d Dist. 1998), and Cleaver v. Marrese, 253 Ill. App. 3d 778 (5th Dist. 1993), and one federal district court decision,Murry v. Sheahan, 991 F. Supp. 1052 (N.D. Ill. 1998), all of which considered the question presented here.

In Cleaver v. Marrese, 253 Ill. App. 3d 778 (5th Dist. 1993), plaintiff, Donna Cleaver, filed a medical malpractice actionagainst Dr. R. Anthony Marrese and the Wood River Township Hospital. The trial court granted the hospital's motion forsummary judgment because plaintiff filed her complaint within two years, but more than one year after the date on whichthe injury was received or the cause of action accrued. On appeal, the appellate court reversed finding that the two-yearlimitation period contained in section 13-212(a) of the Code of Civil Procedure applied. The appellate court stated that,"[B]ased on the type of claim plaintiff has filed, an analysis of the conflicting statutes of limitations, and the rules ofstatutory construction, we conclude that section 13-212 more specifically applies to the instant case." Cleaver, 253 Ill. App.3d at 783.

In Lanxon v. Magnus, 296 Ill. App. 3d 377 (3d Dist. 1998), a case decided in the appellate court after the appellate court'sdecision in the present case, plaintiffs Susan and Jeffery Meusel and plaintiff Amelia Lanxon, in separate cases, broughtactions against Community General Hospital Medical Center (CGH), a municipal corporation, and various other defendantsfor medical malpractice. In both cases, plaintiffs filed their complaints more than one year, but less than two years, after theaccrual of their causes of actions.

CGH moved for summary judgment arguing that plaintiffs' claims, in both cases, were barred by the one-year limitationperiod set forth in section 8-101. Plaintiffs argued that their suits were timely filed because the applicable limitation periodwas the two-year period found in section 13-212(a). The same trial judge denied summary judgment in each case findingthe two-year limitation period in section 13-212(a) applicable.

Because of the identity of the issues presented, the appellate court consolidated the Meusel and Lanxon cases on appeal andheld that section 13-212(a) of the Code, containing the two-year limitation period, was more specifically applicable to theplaintiffs cases. The court explained:

"In applying the more traditional analysis of considering the nature of the claims and the type of injuries sustained bythe instant plaintiffs, we find section 13-212(a) more specifically applicable to their cases. Section 8-101 appliesgenerally to civil actions for any injury, while section 13-212(a) applies specifically and exclusively to actions forinjuries arising out of patient care. Accordingly, section 13-212(a) is the more specific statute and should prevail."(Emphasis in original.) Lanxon, 296 Ill. App. 3d at 381.

Likewise in Murry v. Sheahan, 991 F. Supp. 1052 (N.D. Ill. 1998), a federal district court was asked to consider thequestion of whether section 13-212 or section 8-101 applied to pendent state law medical malpractice claims broughtagainst Cook County and its agents. In that case, the then-presiding district judge originally denied defendant's motion todismiss, holding that the two-year statute of limitations applied. The court was then asked to reconsider its ruling in light ofthe appellate court's decision in this case. On reconsideration, a magistrate judge again held that the two-year limitationperiod applied. The judge explained:

"Here, the Physician or Hospital's section of the Illinois Code of Civil Procedure *** provides a statute of limitationsperiod tailored to a specific cause of action and directed at a specific class of potential defendants: 'actions fordamages for injury or death against any physician, dentist, registered nurse or hospital.' 735 ILCS 5/13-212. Incontrast, the *** Tort Immunity Act provides a statute of limitations period for a broad range of civil actions andpotential liabilities: 'civil actions against a local entity.' 745 ILCS 10/8-101."

We agree with the result reached in the appellate court in the case before us and disagree with the result reached in Cleaver,Lanxon and Murry. We believe that the focus of the inquiry under the statutes at issue here should be on the nature of thedefendants rather than on the type of the cause of action. We believe, therefore, that the one-year limitation periodcontained in section 8-101 of the Tort Immunity Act is more specifically applicable to these defendants.

The legislature, when enacting the Tort Immunity Act, specifically stated that its purpose was "to protect local publicentities and public employees from liability arising from the operation of government." 745 ILCS 10/1-101.1(a) (West1994). In enacting the Tort Immunity Act the legislature focused on a particular category of potential defendants andgranted local governmental entities and their employees greater protection than nongovernmental entities and theiremployees.

This court recognized the legislative intent behind the Tort Immunity Act in Saragusa v. City of Chicago, 63 Ill. 2d 288(1976). In Saragusa, this court stated that the purpose of the limitation period contained in section 8-101 "is to encourageearly investigation into the claim asserted against the local government at a time when the matter is still fresh, witnesses areavailable, and conditions have not materially changed." Saragusa, 63 Ill. 2d at 293. Such an investigation permits promptsettlement of meritorious claims and allows governmental entities to plan their budgets in light of potential liabilities.Reynolds v. City of Tuscola, 48 Ill. 2d 339, 342 (1971). The court in Saragusa further stated that "[b]ecause a localgovernment entity must anticipate that the number of claims made against it will far exceed those brought against a privateindividual, the provision of an abridged period of time within which a claim must be asserted is reasonable." Saragusa, 63Ill. 2d at 293.

In enacting section 8-101 of the Tort Immunity Act, we believe, the legislature intended to protect a specific class ofdefendants, local governmental entities and their employees. Thus, in medical malpractice actions against localgovernmental entities or their employees the focus should be on the defendants rather than the cause of action or the type ofinjuries sustained by the plaintiffs.

By focusing on the category of defendants at issue in this case, it is clear that section 8-101 of the Tort Immunity Act ismore specific than section 13-212 of the Code of Civil Procedure. Section 8-101 specifically applies to defendants whichare local entities and the employees of those entities which are a more specific category of defendant within the broadergroup of any physician, dentist, registered nurse or hospital described in section 13-212(a). Because section 8-101 of theTort Immunity Act is the more specific statute when considering causes of action against local governmental entities andtheir employees, we believe the one-year limitation provision of section 8-101 of the Tort Immunity Act applies to actionsagainst those defendants.

Plaintiffs further argue that significant policy reasons should preclude application of the one-year limitation period toactions against local entities and/or their employees. They contend that a claim for medical malpractice is often notimmediately apparent to the injured party; that medical malpractice claims involve complex issues requiring substantialprefiling investigation; and that the fact that a hospital is a municipal hospital may not be readily apparent to someone whohas been injured in such a facility. They, therefore, conclude that the status of the facility may not be obvious to an injuredparty until it is too late and that public policy should favor the two-year limitation period. Because these concerns competewith the legislative purposes of the limitation provision of the Tort Immunity Act we believe that they are questionsappropriately left to the legislature.

We find the one-year limitation period in section 8-101 of the Tort Immunity Act more specifically applies in this case. Itspecifically states that no civil action, which includes any action whether based upon the common law or statutes or theConstitution of this state, may be commenced in any court against a local entity or any of its employees for any injuryunless it is commenced within one year from the date that the injury was received or the cause of action accrued. See 745ILCS 10/8-101 et seq. (West 1996).

Plaintiffs finally argue that if we determine the one-year limitation period applies to their causes of action, then our decisionshould be applied prospectively only. They believe that it would be unjust to apply retroactively any holding finding thatsection 8-101 of the Tort Immunity Act controls plaintiffs' actions in this case. We disagree.

Generally, when a court issues an opinion, the decision is presumed to apply both retroactively and prospectively.Deichmueller Construction Co. v. Industrial Comm'n, 151 Ill. 2d 413, 416 (1992). However, this presumption is overcomewhen a court expressly states that its decision will be applied prospectively only. Aleckson v. Village of Round Lake Park,176 Ill. 2d 82, 86 (1997).

In Aleckson, 176 Ill. 2d at 92-94, we considered three factors in determining the question of prospective application. Thethree factors to be considered are: (1) whether the decision to be applied nonretroactively established a new principle oflaw, either by overruling clear past precedent on which litigants may have relied or by deciding an issue of first impressionwhose resolution was not clearly foreshadowed; (2) whether, given the purpose and history of the new rule, its operationwill be retarded or promoted by prospective application; and (3) whether substantial inequitable results would be producedif the former decision is applied retroactively. Aleckson, 176 Ill. 2d at 92-94. Applying these factors, we believe thatretroactive application of today's holding is appropriate.

Our decision in the cases at bar does not establish a new principle of law, for we believe that it was foreshadowed by thelanguage of the statute, which, we have determined, requires this result. This initial consideration is a "thresholdrequirement" for prospective application of a new decision (Aleckson, 176 Ill. 2d at 88), and therefore we must denyprospective application in the circumstances shown here.

CONCLUSION

For the reasons stated, the judgment of the appellate court is affirmed.

Judgment affirmed.

CHIEF JUSTICE FREEMAN, specially concurring:

I agree with the plurality to the extent that it holds that the one-year statute of limitation contained in section 8-101 of theTort Immunity Act (745 ILCS 10/8-101 (West 1996)) applies to the causes of action at issue in this case. I also believe, likethe plurality, that the policy considerations presented in this appeal are questions that are more appropriately left to ourGeneral Assembly. Slip op. at 8. Nevertheless, I agree with Justice Heiple that plaintiffs "make a plausible case that thefocus [in this appeal] should be on the type of the cause of action, not on the nature of the defendants." See slip op. at 10(Heiple, J., specially concurring). Therefore, I join in Justice Heiple's special concurrence to the extent that "this is one ofthose instances where 'the legislature intended to make the general act controlling' " and that section 8-101 of the TortImmunity Act was designed to apply broadly to any possible claim against a local governmental entity and its employees.Slip op. at 10 (Heiple, J., specially concurring), quoting Stone v. Department of Employment Security Board of Review, 151Ill. 2d 257, 266 (1992). However, I do not join in, nor do I condone, Justice Heiple's characterization of the dissentsubmitted in this matter by Justice McMorrow.

JUSTICE HEIPLE, also specially concurring:

I agree with the plurality's holding that the one-year statute of limitations in section 8-101 of the Tort Immunity Act (745ILCS 10/8-101 (West 1996)), not the two-year statute of limitations in section 13-212(a) of the Code of Civil Procedure(735 ILCS 5/13-212(a) (West 1996)), applies to medical malpractice actions against local governmental entities and theiremployees. I write separately, however, because I believe the plurality's analysis is both an oversimplification andultimately unpersuasive.

The plurality employs the familiar rule of statutory construction which states that " '[w]here there are two statutoryprovisions, one of which is general and designed to apply to cases generally, and the other is particular and relates to onlyone subject, the particular provision must prevail.' " Hernon v. E.W. Corrigan Construction Co., 149 Ill. 2d 190, 195(1992), quoting Bowes v. City of Chicago, 3 Ill. 2d 175, 205 (1954). Focusing on "the nature of the defendants rather thanon the type of the cause of action," the plurality concludes that section 8-101 is the more specific statute. (Emphasis added.)Slip op. at 6. The plurality's analysis is an oversimplification because section 8-101 is both more specific and more generalthan the statute of limitations in section 13-212(a). It is more specific in the sense that it applies to a narrow class ofdefendants, local entities and their employees. On the other hand, it is more general than section 13-212(a) because itapplies to any civil action, not just to medical malpractice actions. Plaintiffs make a plausible case that the focus should beon the type of the cause of action, not on the nature of the defendants. From plaintiff's point of view, the plurality'sexclusive focus on the nature of the defendants in both statutes is completely arbitrary.

The plurality's analysis is ultimately unpersuasive because, to the extent that section 8-101 is more general than section13-212(a), this is one of those instances where "the legislature intended to make the general act controlling." Stone v.Department of Employment Security Board, 151 Ill. 2d 257, 266 (1992), quoting 2B N. Singer, Sutherland on StatutoryConstruction