BAKER v. ALLEN

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Docket Number

No. 80-2923

Attorney(S)

Lawrence Jay Weiner and Fredric Bryan Lesser, both of Lawrence Jay Weiner Associates, and Goldberg Goldberg, both of Chicago, for appellant. Clausen, Miller, Gorman, Caffrey Witous, of Chicago (James T. Ferrini, James O. Nolan, and Michael J. Carrigan, of counsel), for appellee.

Judges

PRESIDING JUSTICE JOHNSON delivered the opinion of the court:

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Smart Summary

Factual and Procedural Background

On November 6, 1973, Patricia Baker employed Dr. Lawrence W. Allen for treatment of Hodgkin's lymphoma and began a chemotherapy program that continued until May 5, 1974. On December 6, 1976, Baker discovered she had developed aseptic necrosis of the femoral head, a long-term effect of the chemotherapy. She underwent right hip arthroplasty on October 27, 1977, and left hip arthroplasty on September 21, 1978. Baker filed suit on December 1, 1978. The trial court dismissed her complaint under section 21.1 of "An Act in regard to limitations" (Ill. Rev. Stat. 1977, ch. 83, par. 22.1). Baker appealed, raising timeliness and due process challenges. The Appellate Court of Illinois, First District, Fourth Division, affirmed the trial court's judgment (opinion filed March 11, 1982; rehearing denied April 15, 1982).

Legal Issues Presented

Whether plaintiff's cause of action was timely filed under the amended Limitations Act.
Whether retroactive application of the amended Limitations Act deprived plaintiff of property without due process of law.

Arguments of the Parties

Appellant's Arguments

The trial court erred by dismissing the complaint as untimely because the injury was discovered on December 6, 1976 and the suit was filed December 1, 1978, less than two years after discovery.
The 1976 amendment to the Limitations Act should not be retroactively applied to bar a cause of action caused by acts beginning on November 6, 1973.
Retroactive application deprived plaintiff of property without due process, including that the action regarding the left femoral head was effectively barred before that injury occurred.

The opinion does not contain a detailed account of the appellee's specific legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
Anderson v. Wagner (1979), 79 Ill.2d 295, 402 N.E.2d 560, appeal dismissed (1980), 449 U.S. 807, 66 L.Ed.2d 11, 101 S.Ct. 54	Found no due process violation in the statute limiting medical malpractice actions and endorsed consideration of legislative judgment on reasonable limitation periods.	The court relied on Anderson to reject appellant's due process challenge and to support that the statute's reasonableness must be judged in light of legislative purposes.
Charles v. Meyer Medical Group, S.C. (1981), 96 Ill. App.3d 275, 421 N.E.2d 334	Referenced in construing the amendment liberally and calculating the available filing period under the amended Act.	Used to support the calculation that plaintiff had a 17-month period (Dec. 6, 1976 to May 5, 1978) in which to file her suit.
Owen v. Wilson (1976), 260 Ark. 21, 537 S.W.2d 543	Stated that statutes of limitation are matters of public policy for the legislature and that reasonable limitation periods do not violate due process even if claimant was unaware of injury.	Quoted (via Anderson) to support the proposition that the legislature's determination of limitation periods will not be overturned absent palpable error, underpinning the court's due process analysis.
Moore v. Jackson Park Hospital (1981), 101 Ill. App.3d 1009, 428 N.E.2d 1110	Reiterated the general rule that a statute shortening limitation periods will not be retroactively applied unless a reasonable time to file after effective date exists.	Cited to contrast facts: Moore found no reasonable time existed there, whereas here the court found plaintiff had a reasonable time between the amendment's effective date (Sept. 19, 1976) and May 5, 1978.

Court's Reasoning and Analysis

The court first framed the amended Limitations Act's timing rule: actions must be filed within two years after the claimant knew or should have known of the injury, but in no event more than four years after the date on which the alleged act occurred. The amendment's effective date was September 19, 1976. The court examined whether plaintiff had a reasonable period after that effective date to file suit.

Applying the Act to the facts: plaintiff discovered the aseptic necrosis on December 6, 1976, which would allow two years from discovery. However, the Act's four-year absolute bar runs from the last date of treatment (May 5, 1974). The four-year period expired May 5, 1978. Plaintiff filed suit December 1, 1978, after that four-year limit, so her action was time-barred. The court noted that, even under the most liberal construction, plaintiff had 17 months (December 6, 1976 to May 5, 1978) after discovery in which to bring suit.

On the due process claim, the court relied on the Illinois Supreme Court's decision in Anderson v. Wagner, which upheld the statute against due process attack and endorsed the legislative determination of reasonable limitation periods (citing Owen v. Wilson). Applying that precedent, the court concluded that retroactive application of the amendment did not deprive plaintiff of property without due process. The court also discussed Moore to note the governing retroactivity principle and distinguished that case because here a reasonable time existed after the amendment's effective date.

Holding and Implications

Holding: The judgment of the circuit court of Cook County is affirmed; plaintiff's action is barred by the Limitations Act.

Implications: The direct effect is that Baker's complaint was dismissed as untimely under the amended Limitations Act (the four-year absolute bar having expired May 5, 1978). The court applied controlling precedent (Anderson, Owen, and related authority) to reject the due process challenge. The opinion does not announce or claim to establish a new legal precedent beyond applying existing authorities to these facts.

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PATRICIA BAKER, Plaintiff-Appellant, v. LAWRENCE W. ALLEN, M.D., Defendant-Appellee.

PRESIDING JUSTICE JOHNSON delivered the opinion of the court:

Plaintiff, Patricia Baker, appeals the trial court's dismissal of her complaint under section 21.1 of "An Act in regard to limitations" (Ill. Rev. Stat. 1977, ch. 83, par. 22.1) (hereinafter referred to as the Limitations Act).

Plaintiff's complaint, filed on December 1, 1978, alleged that on November 6, 1973, she employed defendant, Lawrence W. Allen, M.D., a specialist in oncology, to cure her of Hodgkin's lymphoma. Defendant informed plaintiff that immediate chemotherapy was needed to treat her illness. Plaintiff inquired whether there were any risks, dangers or complications involved. Defendant told plaintiff that it was necessary treatment for her illness and that it would have no long-term effect. Baker, relying on defendant's representations, began the chemotherapy program and remained on it for 6 months until May 5, 1974.

On December 6, 1976, plaintiff discovered that she had developed aseptic necrosis of her femoral head which is a long-term effect of the chemotherapy. As a result of the aseptic necrosis, on October 27, 1977, plaintiff had to undergo arthroplasty of her right hip. On September 21, 1978, she underwent the same surgical procedure on her left hip.

In her appeal, plaintiff raises the following issues for review: (1) whether her cause of action was timely filed, and (2) whether she has been deprived of property without due process of law.

We affirm the trial court.

Plaintiff contends the trial court erred by dismissing her complaint as untimely. Further, plaintiff asserts that the Limitations Act, as amended (Ill. Rev. Stat. 1977, ch. 83, par. 22.1), should not be retroactively applied to bar a cause of action which was discovered on or about December 6, 1976, but which was caused by acts beginning on November 6, 1973. Plaintiff submits that her action was filed on December 1, 1978, less than 2 years after discovering her injury.

In 1976 the Limitations Act was amended because of the medical malpractice crisis (see Anderson v. Wagner (1979), 79 Ill.2d 295, 402 N.E.2d 560, appeal dismissed (1980), 449 U.S. 807, 66 L.Ed.2d 11, 101 S.Ct. 54), to provide that no actions could be filed more than 2 years after the claimant knew or through the use of reasonable diligence should have known of the injury, but in no event could the action be brought more than 4 years after the date on which the alleged act occurred. Illinois follows the generally accepted rule that an amendment shortening the period in which suit may be filed will not be retroactively applied so as to terminate a cause of action unless the party has a reasonable amount of time after the amendment's effective date in which to file his action.

• 1 We must determine whether plaintiff had a reasonable amount of time after the amendment's effective date (September 19, 1976) in which to file her action. Plaintiff, after she knew of the occurrence, had 2 years in which to bring her action. She discovered the aseptic necrosis on December 6, 1976. Even though plaintiff filed her suit on December 1, 1978, she still did not file within the prescribed period in the Act because it was more than 4 years after the date of her last treatment (May 5, 1974). The 4-year period expired on May 5, 1978; therefore, plaintiff's action was barred. Giving the amendment to the Act the most liberal construction, we find that plaintiff, here, had a 17-month period (from the date of discovery, December 6, 1976, to the final date in which she could file her action, May 5, 1978) to bring her suit. (See Charles v. Meyer Medical Group, S.C. (1981), 96 Ill. App.3d 275, 421 N.E.2d 334.) Accordingly, the trial court did not err by dismissing plaintiff's suit.

Plaintiff also contends that by retroactively applying the amendment to the Act to her cause of action, she was deprived of property without due process of law. Plaintiff asserts that her action with regard to the left femoral head was barred before the injury occurred.

We disagree with plaintiff's contention. This contention has been foreclosed by our supreme court's decision in Anderson v. Wagner (1979), 79 Ill.2d 295, 402 N.E.2d 560, appeal dismissed (1980), 449 U.S. 807, 66 L.Ed.2d 11, 101 S.Ct. 54. The supreme court found no due process violation in our statute. Citing an Arkansas Supreme Court case, the court 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.)" ( 79 Ill.2d 295, 311.)

In Owen v. Wilson, 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. ( Anderson v. Wagner (1979), 79 Ill.2d 295, 311-12.) The Anderson court noted that although such a result may seem 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. Keeping this in mind, the supreme court found no due process violation.

• 2 We hold that applying the Limitations Act in this case does not deny plaintiff due process of law.

Plaintiff cites Moore v. Jackson Park Hospital (1981), 101 Ill. App.3d 1009, 428 N.E.2d 1110, as additional authority for her argument. However, Moore supports the general rule that a statute will not be retroactively applied unless there exists a reasonable amount of time after its effective date for filing of claims which existed prior thereto. ( 101 Ill. App.3d 1009, 1013-14.) In Moore, we found that no reasonable amount of time existed after the amendment's effective date within which to bring her claim. In the instant case, plaintiff had a reasonable amount of time after the effective date of the amendment (September 19, 1976) to the final date in which she could file her action (May 5, 1978).

For all of the foregoing reasons, the judgment of the circuit court of Cook County is affirmed.

Judgment affirmed.

JIGANTI and LINN, JJ., concur.