Hayes v. Mercy Hospital & Medical Center , 136 Ill. 2d 450 ( 1990 )

JUSTICE CLARK,

dissenting:

I join in Justice Calvo’s dissent and write separately only to emphasize that the majority’s interpretation of the medical malpractice statute of repose runs afoul of the “certain remedy” provision of the Illinois Constitution.

As Justice Calvo persuasively demonstrates, the majority incorrectly interprets the phrase “action for damages” contained in the statute of repose as encompassing actions for contribution. However, assuming that the majority is correct, and contribution actions are indeed “actions for damages,” then section 12 of article I of the Illinois Constitution (Ill. Const. 1970, art. I, §12) guarantees that persons entitled to such damages (i.e., persons entitled to contribution) “shall find a certain remedy in the laws.” Like Justice Calvo, I have long viewed the “certain remedy” provision of our constitution as creating a substantive right to “a certain remedy in the laws,” rather than as constituting a mere “ ‘expression of philosophy’ ” (Mega v. Holy Cross Hospital (1986), 111 Ill. 2d 416, 424, quoting Sullivan v. Midlothian Park District (1972), 51 Ill. 2d 274, 277). (See Mega, 111 Ill. 2d at 434 (Clark, C.J, dissenting) (“our constitution clearly directs that the courts of this State, shall be open to the injured”).) I therefore believe that under our constitution, if an action for contribution is an action for damages, then the General Assembly cannot deprive persons entitled to contribution of their opportunity to “obtain justice by law, freely, completely, and promptly” (Ill. Const. 1970, art. I, §12). Nevertheless, that is precisely the result which will occur if the medical malpractice statute of repose is applied to actions for contribution.

The majority’s interpretation of the statute of repose in this case effectively precludes contribution actions in all medical malpractice cases where a plaintiff files his or her complaint on or near the last day of the four-year repose period. In such cases, the defendant, who may not have been aware of the injury until receiving notice of the complaint, will be unable to file a third-party action for contribution against other joint tortfeasors before the expiration of the period of repose. Under the majority’s holding, the defendant would have lost his or her right to bring a contribution action only because the plaintiff exercised his or her right to file a complaint on the last possible day. Such a result is not only inequitable, it is also unconstitutional.

A majority of this court held in Mega v. Holy Cross Hospital (1986), 111 Ill. 2d 416, 428-29, that the medical malpractice statute of repose was constitutional even though it precluded recovery for plaintiffs injured before the effective date of the statute. In dissenting to the majority’s opinion in that case, I stated that “[Ijocking the courtroom door on this group of plaintiffs before they could even have discovered their injuries or availed themselves of the judicial process is unconstitutional in Illinois.” (Mega, 111 Ill. 2d at 431 (Clark, C.J., dissenting).) I believe that the majority’s interpretation of the statute of repose in this case similarly renders the statute unconstitutional because the majority’s interpretation locks the courtroom door on certain persons who are entitled to contribution “before they could even have discovered their injuries or availed themselves of the judicial process.” Mega, 111 Ill. 2d at 431 (Clark, C.J., dissenting).

This court has stated that “[a] statute should be interpreted so as to avoid a construction which would raise doubts as to its validity.” (People v. Davis (1982), 93 Ill. 2d 155, 161.) Consequently, where there are “two possible constructions of a statute, one rendering it as constitutional, and the other as unconstitutional, this court will favor the construction rendering it constitutional.” (Mulligan v. Joliet Regional Port District (1988), 123 Ill. 2d 303, 312.) As Justice Calvo points out, the phrase “action for damages” in the medical malpractice statute of repose need not (and in fact should not) be read as encompassing actions for contribution. Such a construction would avoid raising questions as to the statute’s constitutionality and therefore should be adopted. However, assuming that the only reasonable reading of the statute is that the General Assembly did indeed intend that actions for contribution be subject to the period of repose, the statute should be declared unconstitutional.

For these reasons, I would reverse the judgment of the appellate court which affirmed the trial court’s dismissal of the third-party complaint. I therefore dissent.