The opinion
Docket No. 102534.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
DIANE ORLAK, Appellant, v. LOYOLA UNIVERSITY HEALTH
SYSTEM et al., Appellees.
Opinion filed December 28, 2007.
JUSTICE GARMAN delivered the judgment of the court, with
opinion.
Justices Freeman, Fitzgerald, and Karmeier concurred in the
judgment and opinion.
Justice Kilbride specially concurred, with opinion.
Justice Burke dissented, with opinion.
Chief Justice Thomas took no part in the decision.
OPINION
In July 2002, plaintiff, Diane Orlak, sued defendant Loyola
University Health System (Loyola) in the circuit court of Cook
County, alleging that Loyola was liable to her for an alleged failure to
notify her in a timely manner that she may have contracted hepatitis C
(HCV) from a blood transfusion that she received in 1989 during
hospitalization for injuries sustained in an accident. The circuit court
granted Loyola’s motion to dismiss, finding that plaintiff’s action was
barred by the statute of repose contained in section 13–212(a) of the
Code of Civil Procedure (Code) (735 ILCS 5/13–212(a) (West
2002)). The appellate court affirmed (No. 1–04–0401 (unpublished
order under Supreme Court Rule 23)) and we granted plaintiff’s
petition for leave to appeal (210 Ill. 2d R. 315).
BACKGROUND
Plaintiff was hospitalized at Foster G. McGaw Hospital in
Maywood, Illinois, in April and May 1989, for burns suffered during
a work-related accident. During the course of her hospitalization,
plaintiff was given a blood transfusion. Because plaintiff was
unconscious at the time, her mother signed a consent form for the
transfusion. That form stated in part, “In making such request and in
giving such consent, I hereby acknowledge that I have been informed
that there is no known definitive test for the determination of the
existence or non-existence of viral hepatitis in blood and that I fully
understand that the transfusion or administration of blood or blood
components to me may result in viral hepatitis or other untoward
reactions.” Sometime in 1990, Loyola advised plaintiff to be tested for
the presence of the human immunodeficiency virus (HIV). Plaintiff
underwent testing and tested negative for the presence of the virus. In
August 2000, Loyola notified plaintiff by letter that she should be
tested for HCV because her blood donor had recently tested positive
for the virus. After being tested, plaintiff learned that the test was
positive for HCV.
In her third amended complaint, plaintiff alleged that following
Loyola’s advice to her in 1990 to be tested for HIV, she reasonably
believed that, after testing negative for that virus, the blood she had
received was safe and free from deadly disease. She also took issue
with Loyola’s statement in its August 2000 letter that at the time she
received her blood transfusion, no reliable tests for HCV were
available. She alleged that in 1996, the Food and Drug Administration
(FDA) issued a memorandum to hospitals advising them to notify
patients who received blood transfusions prior to 1992 to be tested for
the presence of HCV. Plaintiff also alleged that in 1997 the National
Institutes of Health (NIH) published a “Consensus Development
Conference Statement,” which found that HCV progresses at a slow
rate with no symptoms in the majority of patients during the first 20
years after infection. The NIH also found that HCV patients who
consume alcoholic beverages are at greater risk of rapidly developing
cirrhosis of the liver and end-stage liver disease. The NIH
-2-
recommended that individuals who had received blood transfusions
prior to 1990 should be tested for HCV. According to plaintiff, the
NIH report was posted on the Internet in April 1997 and was
published in the Journal of Hepatology in September 1997.
Plaintiff’s complaint contained counts alleging constructive fraud,
medical negligence, medical battery, and ordinary negligence. In count
I, for constructive fraud, plaintiff alleged that Loyola’s failure to
inform her of the need to be tested for HCV at the time it advised her
to be tested for HIV lulled her into a false sense of security that the
blood she had received was free of disease. She alleged that her
reliance in that regard was justifiable and reasonable. In count IV, for
ordinary negligence, plaintiff alleged that in 1996 and 1997 Loyola
knew or should have known of the need for plaintiff to be tested for
HCV and that, beginning in 1996, or at the latest in March 1997,
Loyola owed plaintiff a duty of reasonable care to notify her that she
had potentially contracted HCV through her blood transfusion and
that she needed to be tested. Plaintiff also alleged that for every day
thereafter that the duty existed, Loyola continued to breach its duty
of care by failing to notify plaintiff of the potential for infection and
the need to be tested.
Loyola filed a motion to dismiss all counts (735 ILCS
5/2–619(a)(5) (West 2002)) on the ground that plaintiff’s action was
time-barred. Loyola argued that plaintiff’s cause of action arose out
of patient care stemming from her 1989 hospitalization and blood
transfusion. Thus, the medical malpractice statute of repose (735
ILCS 5/13–212(a) (West 2002)) was applicable. Loyola argued that
this applied as well to plaintiff’s claims for constructive fraud and
ordinary negligence. The circuit court agreed and dismissed plaintiff’s
complaint with prejudice.
The appellate court affirmed. With respect to plaintiff’s ordinary
negligence claim, the court rejected her argument that because she
was no longer a patient and she challenged only the failure to timely
give notice of the need for testing, her cause of action did not arise
out of patient care. The appellate court also rejected plaintiff’s
constructive fraud and equitable estoppel claims. No. 1–04–0401
(unpublished order under Supreme Court Rule 23).
-3-
ANALYSIS
I
A motion to dismiss under section 2–619 of the Code admits the
legal sufficiency of the complaint, but asserts some affirmative matter
that defeats the claim. King v. First Capital Financial Services Corp.,
215 Ill. 2d 1, 12 (2005). In ruling on the motion, the circuit court
must interpret all pleadings and supporting documents in the light
most favorable to the nonmoving party. Borowiec v. Gateway 2000,
Inc., 209 Ill. 2d 376, 383 (2004). Our standard of review in this
appeal is de novo. DeSmet v. County of Rock Island, 219 Ill. 2d 497,
504 (2006).
II
Plaintiff argues that the circuit and appellate courts erred in
holding that the four-year medical malpractice statute of repose
applies to bar her claim for ordinary negligence. That statute provides
in part:
“Except as provided in Section 13–215 of this Act, no
action for damages for injury or death against any physician,
dentist, registered nurse 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,
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.”
(Emphasis added.) 735 ILCS 5/13–212(a) (West 2002).
This statute contains both a two-year period of limitations and a
four-year period of repose. The two-year limitations period is
triggered by the plaintiff’s discovery of the injury; in contrast, the
four-year repose period is triggered by the occurrence of the act or
omission that caused the injury. The only exception to the four-year
statute of repose is the fraudulent-concealment exception contained
-4-
in section 13–215 of the Code (735 ILCS 5/13–215 (West 2002)).
The statute of repose sometimes bars actions even before the plaintiff
has discovered the injury. While this may result in harsh consequences,
the legislature enacted the statute of repose for the specific purpose
of curtailing the “long tail” exposure to medical malpractice claims
brought about by the advent of the discovery rule. Anderson v.
Wagner, 79 Ill. 2d 295, 312 (1979).
Only claims “arising out of patient care” are affected by the
medical malpractice statute of repose. Our analysis of this issue is
governed by familiar principles of statutory construction. The cardinal
rule of statutory construction is to ascertain and give effect to the
intent of the legislature. Murray v. Chicago Youth Center, 224 Ill. 2d
213, 235 (2007). That intent is best gleaned from the words of the
statute itself, and where the statutory language is clear and
unambiguous, it must be given effect. General Motors Corp. v. State
of Illinois Motor Vehicle Review Board, 224 Ill. 2d 1, 13 (2007). A
court should interpret a statute, where possible, according to the plain
and ordinary meaning of the language used. Paris v. Feder, 179 Ill. 2d
173, 177 (1997). In determining the plain meaning of a statute’s
terms, we consider the statute in its entirety, keeping in mind the
subject it addresses, and the apparent intent of the legislature in
enacting the statute. People v. Perry, 224 Ill. 2d 312, 323 (2007).
Issues of statutory construction are reviewed de novo. Paris, 179 Ill.
2d at 177-78.
Plaintiff argues that the question in this case is whether the injury
she has alleged arose from patient care or from an administrative
decision by Loyola not to send notice of the need to be tested for
HCV. She argues that, under the appellate court’s construction of the
statute, once a person becomes a patient of a medical provider,
virtually any subsequent interaction between the patient and the
provider is governed by the statute of repose. According to plaintiff,
such a construction would impermissibly expand the scope of the
statute beyond its plain language. She points out that her “patient
care” ended in 1989 and that she has not alleged any wrongdoing by
Loyola during the time she was hospitalized. Plaintiff believes that by
using the phrase “arising out of patient care,” the legislature intended
the statute of repose to govern claims based on events that involve
actual patient care.
-5-
Loyola, on the other hand, argues that plaintiff’s interpretation of
the phrase “arising out of patient care” is much too narrow. That
plaintiff’s hospitalization ended long ago is not determinative; it is the
nature of the conduct, not the timing thereof, that determines whether
a claim arises out of patient care. Loyola argues that accepting
plaintiff’s interpretation would eviscerate the statute of repose because
plaintiffs could avoid the statute by casting their claims as based on a
failure to provide follow-up care at a later date. According to Loyola,
plaintiff’s contention that Loyola breached only an administrative duty
by its failure to notify her in 1996 and 1997 would impose a duty with
no temporal bounds on Loyola and other health-care providers.
Plaintiff cites several Illinois and foreign cases in support of her
argument. Cammon v. West Suburban Hospital Medical Center, 301
Ill. App. 3d 939 (1998), dealt, in relevant part, with a claim against the
defendant hospital for spoliation of evidence. One ground upon which
the circuit court dismissed the claim was that the action was filed
outside the statute of repose. The appellate court disagreed, noting
that a negligence action for spoliation of evidence is predicated on a
breach of the duty to preserve evidence. It does not involve patient
care. Thus, the claim was not governed by the medical malpractice
statute of repose. Cammon, 301 Ill. App. 3d at 950. Contrary to
plaintiff’s argument, Cammon is not applicable to this case. The duty
there had nothing whatever to do with patient care. It dealt with a
duty imposed on a party to the litigation to preserve evidence relevant
to the case. Cammon stands only for the unremarkable proposition
that not all negligence actions against physicians or hospitals involve
patient care.
Plaintiff also cites a Tennessee case, Estate of Doe v. Vanderbilt
University, Inc., 958 S.W.2d 117 (Tenn. App. 1997). There, the
plaintiff’s decedent received a blood transfusion in 1984 in connection
with surgery. The donor blood was not tested for the presence of
HIV. The decedent was not informed that she had received the
transfusion, nor was she advised that she was at risk of having been
infected with HIV. She later married and became pregnant. It was
only when she gave birth to a daughter who had become infected with
the virus in utero that the decedent learned of her condition. The
infant died of acquired immune deficiency syndrome (AIDS) shortly
after her birth and the decedent died of AIDS subsequent to the
-6-
initiation of a lawsuit against Vanderbilt based on Vanderbilt’s failure
to notify the decedent in 1987 and 1988 that the blood she received
in the transfusion had not been tested for HIV. Vanderbilt admitted
that it did not search its records to provide notice to transfusion
recipients. The circuit court found that the case was governed by the
Tennessee medical malpractice statute and that absent expert
testimony that Vanderbilt had deviated from the recognized standard
of care for hospitals in the area, no genuine issue of material fact
existed and that summary judgment was appropriate. The court of
appeals phrased the issue as whether Vanderbilt’s failure to notify
decedent and other patients was a medical decision subject to the
medical malpractice statute. The court determined that it was not.
Extensive evidence had been taken in the circuit court in connection
with Vanderbilt’s summary judgment motion. That evidence
convinced the court of appeals that the decision not to notify was not
a medical one. Doe, 958 S.W.2d at 121.
Doe is inapplicable to the instant case. We are not concerned with
whether Loyola’s failure to notify in 1996 and 1997 involved the
exercise of medical judgment or some other type of judgment. The
only inquiry is whether plaintiff’s cause of action arose from patient
care. This is a completely different standard from the one involved in
Doe.
Plaintiff also cites a Georgia case, Canas v. Al-Jabi, 282 Ga. App.
764, 639 S.E.2d 494 (2006). The plaintiff in that case had received
blood transfusions in 1985 while a pediatric patient at a hospital. The
blood was not tested for the presence of HIV. The plaintiff developed
AIDS, which was not diagnosed until he was a teenager. The hospital
considered implementing a notification program, but decided not to do
so based on concerns about the expense, logistical complexity, and
legal implications of such a program. The relevant inquiry as framed
by the Georgia court of appeals was whether the case involved a
“medical question,” which the court defined as requiring highly
specialized expert knowledge with respect to which a layperson can
have no knowledge at all. The court contrasted acts involving such
medical questions with administrative, clerical, or routine acts
demanding no special expertise. Those acts, the court stated, fall into
the realm of ordinary negligence. Canas, 282 Ga. App. at 787-88, 639
S.E.2d at 517. The court noted that the record showed the decision
-7-
not to notify the plaintiff and others like him of the risk of HIV
infection was not based on medical expertise but, rather, was based on
administrative concerns. Thus, the court concluded that the plaintiff’s
claim was based on ordinary negligence and was not subject to the
medical malpractice statutes of limitation and repose. Canas, 282 Ga.
App. at 790, 639 S.E.2d at 518.
As with Doe, the Canas case does not support plaintiff’s
argument. The statute of repose in Canas stated that an “action for
medical malpractice” may not be brought more than five years after
the date on which the negligent act or omission occurred. Canas, 282
Ga. App. at 770, 639 S.E.2d at 505-06. In contrast, the Illinois statute
of repose encompasses any action for damages arising out of patient
care, regardless of whether it arises from a tort, a contract, or from
some other source. Indeed, this court has held that the reach of the
statute is not limited to actions at law. In Hayes v. Mercy Hospital &
Medical Center, 136 Ill. 2d 450, 458 (1990), we held that the
legislature intended the phrase “or otherwise” in the statute of repose
to be all-inclusive and we concluded that the phrase includes actions
for contribution against a physician for injuries arising out of patient
care.
Plaintiff also argues the fact that the requirements of section
2–622 of the Code (735 ILCS 5/2–622 (West 2002)) do not apply to
her case provides further support for her contention that her claims
against Loyola do not arise out of patient care. Section 2–622 requires
a plaintiff who seeks damages due to “injuries or death by reason of
medical, hospital, or other healing art malpractice” to obtain an
attorney’s affidavit and health professional’s report stating that there
is a reasonable and meritorious cause for filing a lawsuit. However,
section 2–622 focuses only on actions involving some form of medical
malpractice. As we have stated, the statute of repose at issue here
encompasses a much broader range of claims. Nowhere does the
statute of repose mention the words “malpractice” or “healing arts
malpractice.” Thus, the inapplicability of section 2–622 to this case
does not impact the issue of whether plaintiff’s cause of action arises
from patient care.
Courts that have addressed the issue have given the phrase
“arising out of patient care” a broad meaning. In Miller v. Tobin, 186
Ill. App. 3d 175 (1989), the plaintiff and his wife were receiving
-8-
marriage counseling from the defendant, a psychiatrist. The plaintiff
alleged that the defendant had disclosed confidential information to
the plaintiff’s wife, in violation of the Mental Health and
Developmental Disabilities Confidentiality Act. The trial court
dismissed the action on the ground that it had not been filed within the
two-year statute of limitations in section 13–212 of the Code. The
appellate court affirmed, rejecting the plaintiff’s argument that because
his complaint did not allege malpractice, section 13–212 did not apply.
The court noted that a statute of limitations is to be construed in light
of its objectives and that the phrase “arising out of” is broad and
generally means “originating from,” “growing out of,” or “flowing
from.” The court observed that the plaintiff’s alleged injury occurred
during the course of the defendant’s treatment of the plaintiff’s wife;
thus, the alleged injury arose from patient care. Miller, 186 Ill. App.
3d at 177-78.
In Walsh v. Barry-Harlem Corp., 272 Ill. App. 3d 418 (1995), the
plaintiff filed a complaint under the Consumer Fraud and Deceptive
Business Practices Act (Consumer Fraud Act), alleging that the
defendants falsely represented to the plaintiff that he needed eye
surgery and that they altered notes from the plaintiff’s eye testing to
justify the surgery. The trial court dismissed the complaint as barred
by the two-year statute of limitations contained in section 13–212 of
the Code. The appellate court affirmed, concluding that the limitations
period of section 13–212 governed, rather than the three-year
limitations period applicable to the Consumer Fraud Act. The court
rejected the plaintiff’s argument that section 13–212 was inapplicable
because he did not allege any deviation from a standard of care, but
only fraud related to the commercial aspects of the defendants’ eye-
care business. The court concluded that the defendants’ alleged
decision to perform unnecessary surgery on the plaintiff’s eye did
indeed implicate a standard of care. As such, the plaintiff’s alleged
injury arose out of patient care. His allegations of misconduct were
“inextricable” from the defendants’ diagnosis and treatment of the
plaintiff’s eye. Walsh, 272 Ill. App. 3d at 425.
In Stiffler v. Lutheran Hospital, 965 F.2d 137 (7th Cir. 1992), the
court, construing Illinois law, held that a products liability action
against a hospital for implantation of a defective prosthetic device was
governed by the statute of repose contained in section 13–212. The
-9-
court further held that the plaintiff’s claim arose from patient care,
rejecting the plaintiff’s argument that her injury arose, not from
medical care, but from the hospital’s negligent choice and distribution
of a defective prosthetic device. The court contrasted the plaintiff’s
situation with a hypothetical example in which a hospital’s activities
would not arise from patient care. For instance, the court stated, a
hospital-run gift shop might be strictly liable if nonprescription
medicine it sold to the general public was proved to be harmful to
consumers. In contrast, the defendant hospital in the plaintiff’s case
did not place the plaintiff’s prosthesis in the stream of commerce, it
did not promote its purchase to the general public, and it was in no
better position than the plaintiff to examine the prosthesis and
discover the defect. Stiffler, 965 F.2d at 141.
It is clear that the legislature intended the statute of repose to
operate in a very broad manner and it has been interpreted in that
manner by courts addressing the issue. The question is not whether
the plaintiff has alleged medical negligence or ordinary negligence.
Rather, the sole issue is whether the plaintiff’s claim arose from
patient care. The word “arise” is defined in Black’s Law Dictionary as
“[t]o originate; to stem (from),” or “to result (from).” Black’s Law
Dictionary 115 (8th ed. 2004). “Arise” is also defined elsewhere as “to
originate from a source.” Merriam-Webster’s Collegiate Dictionary 66
(11th ed. 2006).
We have very recently discussed the degree of causation required
by the phrase “arising out of patient care” in section 13–212. In
Brucker v. Mercola, No. 102440 (December 28, 2007), we construed
this phrase “simply as requiring a causal connection between the
patient’s medical care and the injury. While the phrase does not need
to be construed so broadly as to encompass ‘but for’ causation, it
clearly covers any injuries that have their origin in, or are incidental to,
a patient’s medical care and treatment.” Brucker, slip op. at 17. The
broad nature of the phrase “arising out of patient care” is aptly
illustrated in Brucker. There, the plaintiff, who was then pregnant,
went to the defendant doctor in 1995 for an allergy consultation. The
defendant prescribed a nutritional supplement called L-glutamine, one
of many that he sold in his office. He provided this service to his
patients and made only incidental sales to the general public. The L-
glutamine prescribed for the plaintiff was ordered in bulk form and the
-10-
defendant’s receptionist, who had no medical training, was responsible
for transferring the bulk supplement into individual bottles. The
receptionist accidentally filled the bottle given to the plaintiff with
selenium, rather than L-glutamine. The plaintiff became very ill when
she ingested the selenium.
The plaintiff and her husband initially filed a medical malpractice
complaint in 1997, but the complaint was voluntarily dismissed and
not refiled until 2002. A year later, the plaintiffs amended their
complaint to add an additional count that alleged their son, Robert,
who was born in January 1996, had been poisoned in utero when his
mother ingested the selenium. The defendant filed a motion to dismiss
the action on the ground that the eight-year repose period in section
13–212(b) of the Code had expired.
One of the plaintiff’s arguments was that the injuries allegedly
caused to Robert did not arise out of patient care. This court
disagreed, noting that the phrase “arising out of patient care” has been
broadly defined and refers to a causal connection. Brucker, slip op. at
15. We concluded that “arising out of patient care” simply requires a
causal connection between the patient’s medical care and the alleged
injury. Brucker, slip op. at 17. Applying the plain meaning of this
phrase to the plaintiff’s case, we held that the alleged injury to the
plaintiff and Robert did indeed arise out of the patient care received
by the plaintiff. The plaintiff consulted the defendant doctor
concerning an allergy problem and, based on that consultation, the
defendant prescribed L-glutamine for the plaintiff. We rejected the
plaintiff’s argument that the injuries arose out of the defendant’s sale
of nutritional supplements, noting that the defendant did not hold
himself out as a retailer of supplements, nor did he maintain a retail
area in his office for the sale of the supplements. In addition, the
plaintiff was not sold the supplement as a member of the general
public, but rather as the defendant’s patient. Accordingly, there was
a causal connection between the patient care provided to the plaintiff
and her alleged injury. Brucker, slip op. at 18.
The question remains whether plaintiff here has alleged an injury
arising out of patient care. In addressing this question, plaintiff focuses
on Loyola’s failure to notify her and argues that this omission did not
involve the provision of medical care. However, the omission itself
cannot be viewed in a vacuum. Plaintiff’s allegations of a duty to
-11-
notify her and Loyola’s alleged violation of that duty flows from the
blood transfusion she received during her 1989 hospitalization. This
case is unlike the situation in Cammon (claim against hospital for
spoliation of evidence was unrelated to any patient care). It is
apparent here that there is a causal connection between plaintiff’s
1989 hospitalization and blood transfusion and her current claim
against Loyola. Accordingly, her claim arises out of patient care.
Our decision is in keeping with the purpose behind the statute of
repose. Were we to endorse plaintiff’s position, we would be opening
the door to potentially open-ended liability for health-care providers
anytime new medical tests were developed that might suggest the need
for a notification program for present and former patients. This
obligation might even include patients with whom a hospital may have
had no contact for many years. Such a result would undermine the
purpose behind the enactment of the medical malpractice statute of
repose. That statute was part of the legislative response to a medical
malpractice insurance crisis; the purpose was to reduce the cost of
medical malpractice insurance and to assure its continued availability
to medical practitioners. Anderson, 79 Ill. 2d at 301. The crisis was
thought to stem from the advent of the “discovery rule” in the late
1960’s, in which a cause of action accrued only when a person learned
of an injury or reasonably should have learned of it. Because the
application of the discovery rule in malpractice actions created a “long
tail” of liability, the ability of malpractice insurance companies to
predict future liabilities was reduced. Anderson, 79 Ill. 2d at 307. It
was in response to this problem that the General Assembly enacted the
statute of repose. Allowing plaintiff’s action to go forward would be
contrary to that purpose. Therefore, we conclude that plaintiff’s claim
arises out of patient care and is thus subject to the four-year statute of
repose contained in section 13–212(a). Since plaintiff brought this
action some 13 years after her claim arose, the trial court properly
dismissed her lawsuit.
III
Plaintiff argues that, even if her claims against Loyola are barred
by the statute of repose contained in section 13–212, Loyola
fraudulently concealed the grounds for her cause of action. In the
alternative, plaintiff also argues that Loyola should be equitably
-12-
estopped from asserting the statute of repose as a defense to her
action.
Section 13–212 explicitly recognizes that fraudulent concealment
tolls the running of the statute of limitations/repose. Section 13–215
of the Code (735 ILCS 5/13–215 (West 2002)) provides that when a
cause of action is fraudulently concealed, the plaintiff may bring an
action within five years of the discovery of the cause of action.
In count I of her third amended complaint, plaintiff alleged a cause
of action for constructive fraud. She alleged that because Loyola
advised her to be tested for HIV, but did not advise her prior to 2000
to be tested for HCV, she was falsely led to believe that, following her
negative test for HIV, the blood she had received in the transfusion
was free of all life-threatening viruses. She alleged that her reliance
was reasonable, given that she was not a medical professional and that
Loyola advised her to be tested for one risk known to the medical
community, but not another risk.
The concealment contemplated by section 13–215 must consist of
affirmative acts or representations calculated to lull or induce a
claimant into delaying filing of his or her claim, or to prevent a
claimant from discovering a claim. Mere silence on the part of the
defendant is insufficient. Smith v. Cook County Hospital, 164 Ill. App.
3d 857, 862 (1987). A plaintiff must plead and prove that the
defendant made misrepresentations or performed acts which were
known to be false, with the intent to deceive the plaintiff, and upon
which the plaintiff detrimentally relied. Foster v. Plaut, 252 Ill. App.
3d 692, 699 (1993).
Plaintiff points to no affirmative acts by Loyola that were
calculated to conceal a cause of action. The mere act of notifying
plaintiff that she should be tested for HIV cannot be transformed into
an affirmative act of concealment of the need for HCV testing.
Recognizing the absence of affirmative acts or misrepresentations on
Loyola’s part, plaintiff argues that the general rule requiring
affirmative acts of concealment does not apply where the parties have
a fiduciary or confidential relationship. In such situations, plaintiff
argues, the mere failure to disclose material information, standing
alone, is sufficient to toll the statute of repose.
-13-
In support of her argument, plaintiff cites Hagney v. Lopeman,
147 Ill. 2d 458 (1992), where this court stated:
“ ‘ “[i]t is the prevailing rule that, as between persons
sustaining a fiduciary or trust or other confidential relationship
toward each other, the person occupying the relation of
fiduciary or of confidence is under a duty to reveal the facts to
the plaintiff (the other party), and that his silence when he
ought to speak, or his failure to disclose what he ought to
disclose, is as much a fraud at law as an actual affirmative
false representation or act; and that mere silence on his part as
to a cause of action, the facts giving rise to which it was his
duty to disclose, amounts to a fraudulent concealment
***.” ’ ” Hagney, 147 Ill. 2d at 463, quoting Chicago Park
District v. Kenroy, Inc., 78 Ill. 2d 555, 562 (1980), quoting L.
Tellier, Annotation, What Constitutes Concealment Which
Will Prevent Running of Statute of Limitations, 173 A.L.R.
576, 588 (1948).
Hagney involved a suit by relatives of a decedent against the
decedent’s former attorney alleging self-dealing by the attorney while
representing the decedent. The attorney allegedly purchased remainder
interests for himself in farmland at a time when he was simultaneously
representing the decedent in her effort to purchase the same remainder
interests.
Plaintiff also points out that this court has held the relationship
between patient and physician is a fiduciary relationship. In Witherell
v. Weimer, 85 Ill. 2d 146, 159 (1981), we found it beyond doubt that
this relationship is one in which the patient places great trust and
confidence in the physician’s advice and recommendations. Based
upon this relationship, plaintiff argues that it was Loyola’s duty to
provide her with notice of the need to be tested for HCV when Loyola
was apprised of the need for such testing in 1996 and 1997 and that
Loyola’s silence constituted a fraud on plaintiff.
Plaintiff was discharged from Loyola in 1989. Thus, there was no
confidential or fiduciary relationship between plaintiff and Loyola in
1996 and 1997, the time plaintiff alleges Loyola should have notified
her of the need for HCV testing.
-14-
Plaintiff relies on Blaz v. Michael Reese Hospital Foundation, 74
F. Supp. 2d 803 (N.D. Ill. 1999). There, the plaintiff was a patient at
the hospital as a child, where he received radiation treatments. He was
part of a group of patients who were treated with radiation therapy
between 1930 and 1960 for some benign conditions of the head and
neck. In 1974, the hospital established a program to gather data and
conduct research among those who had received the therapy. In 1975,
the program notified the plaintiff that he was at increased risk of
thyroid tumors because of the radiation treatment he had received. In
1979, the hospital and the doctor who had been put in charge of the
program submitted a research proposal to the NIH stating that a study
based on the program showed strong evidence of a connection
between radiation treatments and various kinds of tumors, including
neural tumors. A 1981 questionnaire sent to the plaintiff by the
program along with a letter from the doctor said nothing about a
strong connection between the treatments the plaintiff had received
and tumors. The plaintiff developed neural tumors in 1996 and he
sued the hospital and the doctor, alleging that they failed to notify him
of their findings and warn him that he might be at greater risk for
neural tumors. Blaz, 74 F. Supp. 2d at 804.
The district court denied the doctor’s motion to dismiss, finding
that the doctor had a duty to warn the plaintiff by virtue of his role as
the doctor in charge of the program. The court noted that the doctor
was responsible for researching the effects of the radiation treatments
and for communicating with the former patients who had received
those treatments. The district court found that the doctor’s position
with respect to the program created the kind of “special relationship”
that this court had previously required for a finding of duty in the
absence of a doctor-patient relationship. Blaz, 74 F. Supp. 2d at 806-
07.
Blaz does not support plaintiff’s fraudulent concealment argument.
The question in Blaz was whether the doctor had a duty to warn the
plaintiff. No issue of fraudulent concealment was raised.
Loyola notified plaintiff of the need to be tested for HCV once it
had notice that plaintiff was at risk for HCV due to her blood donor’s
positive HCV test. We reject plaintiff’s argument that Loyola’s silence
in 1996 or 1997, without more, constitutes a fraudulent concealment
of a cause of action.
-15-
Plaintiff also argues that Loyola should be equitably estopped from
relying on the statute of repose because Loyola’s notification to
plaintiff in 1990 that she should be tested for HIV lulled her into a
false sense of security that she was not at risk for any other diseases
stemming from her 1989 blood transfusion. This court has set forth
the requirements for equitable estoppel as follows:
“A party claiming estoppel must demonstrate that: (1) the
other person misrepresented or concealed material facts; (2)
the other person knew at the time he or she made the
representations that they were untrue; (3) the party claiming
estoppel did not know that the representations were untrue
when they were made and when that party decided to act, or
not, upon the representations; (4) the other person intended or
reasonably expected that the party claiming estoppel would
determine whether to act, or not, based upon the
representations; (5) the party claiming estoppel reasonably
relied upon the representations in good faith to his or her
detriment; and (6) the party claiming estoppel would be
prejudiced by his or her reliance on the representations if the
other person is permitted to deny the truth thereof.” DeLuna
v. Burciaga, 223 Ill. 2d 49, 82-83 (2006).
It is not necessary that the defendant intentionally mislead or deceive
the plaintiff. All that is required is that the plaintiff reasonably relied
on the defendant’s conduct or representations in delaying suit.
DeLuna, 223 Ill. 2d at 83.
In the instant case, plaintiff relies on Loyola’s notification to her
of the need to be tested for HIV and Loyola’s silence with regard to
the need for HCV testing in 1996 and 1997 as somehow misleading
plaintiff into believing that the blood she received in the transfusion
was free from other diseases. Plaintiff again cites Witherell in support
of her argument. However, in that case, the defendant doctors had
repeatedly assured the plaintiff that she did not have the condition
from which she suffered and that it was not caused by the birth control
pills she was taking.
Loyola’s conduct does not meet the requirements of equitable
estoppel. That plaintiff was notified to be tested for HIV does not
suggest that she was entitled to assume the donated blood was safe
from all other risks. Plaintiff points out that it was reasonable for her
-16-
to conclude that if there was a need for further testing, Loyola would
notify her of that fact. However, Loyola did notify plaintiff to be
tested for HCV when it learned that she was at risk for that virus. We
therefore reject plaintiff’s fraudulent concealment and equitable
estoppel arguments.
CONCLUSION
We hold that plaintiff’s claim arises from patient care and that the
statute of repose contained in section 13–212(a) of the Code applies
to bar her action. We also reject plaintiff’s allegations of fraudulent
concealment and equitable estoppel. Accordingly, we affirm the
judgment of the appellate court.
Appellate court judgment affirmed.
CHIEF JUSTICE THOMAS took no part in the consideration or
decision of this case.
JUSTICE KILBRIDE, specially concurring:
The majority relies on this court’s decision in Brucker v. Mercola,
No. 102440 (December 28, 2007), in concluding that the plaintiff’s
claim arises out of patient care. In Brucker, I agreed with the
majority’s interpretation of the phrase “arising out of patient care.”
Given the facts of Brucker, however, I disagreed with the application
of that phrase because the majority placed insufficient emphasis on the
fundamental “patient care” component. Brucker, slip op. at 40
(Kilbride, J., specially concurring).
In this case, I agree that the plaintiff’s claim arises out of patient
care. The blood transfusion was undoubtedly an integral component
of plaintiff’s medical care or treatment and, therefore, is within the
plain meaning of “patient care.” See Stiffler, 965 F.2d at 141;
Brucker, slip op. at 41 (Kilbride, J., specially concurring). Plaintiff’s
claim alleging harm from the failure to warn of a possible infection
originated from the blood transfusion. Accordingly, plaintiff’s claim
arose out of patient care and falls within the scope of the medical
-17-
malpractice statute of repose. Thus, I concur in the result reached by
the majority despite its reliance on Brucker.
JUSTICE BURKE, dissenting:
In the case at bar, we are confronted with the same question we
addressed in Brucker v. Mercola, No. 102440 (December 28, 2007),
that is, whether a claim “arises out of patient care” within the meaning
of the medical malpractice statute of repose. Here, as in Brucker, the
majority holds that a claim “arises out of patient care” if there is a
“causal connection” between the claim and the medical care received
by the plaintiff. Slip op. at 12 ( “there is a causal connection between
plaintiff’s 1989 hospitalization and blood transfusion and her current
claim against Loyola. Accordingly, her claim arises out of patient
care”).
I disagreed with the majority’s interpretation of the statutory
language in Brucker, explaining that despite the majority’s assertions
to the contrary, its interpretation results in a “but for” test, which is
overly broad and could not have been intended by the legislature.
Brucker, slip op. at 49 (Burke, J., specially concurring). For the same
reasons, I respectfully dissent in the case at bar.
The alleged facts of this case are not in dispute. In the spring of
1989, plaintiff, Diane Orlak, was a patient at a Loyola University
Medical Center (the Foster G. McGaw Hospital) and, while
hospitalized, received blood transfusions. In August of 2000, Loyola
sent plaintiff a letter informing her that the blood she had received in
1989 might have been tainted with the hepatitis C virus (HCV) and
recommended that plaintiff be tested for HCV by her physician. Soon
after receiving this notification, plaintiff was tested and learned that
she was positive for HCV.
In July 2002, plaintiff filed suit against Loyola, seeking recovery
due to Loyola’s alleged negligence in: (1) failing to screen the blood
administered to her for HCV, (2) failing to notify her in a timely
fashion of the need to be tested for HCV, and (3) failing to timely
inform her that the donor whose blood she had received tested
positive for HCV. Subsequently, plaintiff amended her complaint. In
her third amended complaint, which is currently before us, plaintiff
added new allegations, namely, that the Federal Drug Administration
-18-
(FDA) issued a general memorandum in 1996 to all hospitals,
including Loyola, recommending that they notify patients who had
received blood transfusions prior to 1992 to consider getting tested
for HCV; and that the National Institute of Health (NIH) had
published a “Consensus Development Conference Statement” in
March 1997, which recommended that persons who received blood
transfusions prior to 1990 be tested for HCV. Plaintiff recast her prior
claims under the headings of medical negligence and medical battery,
and added two new counts: count I, which alleged constructive fraud,
and count IV, which alleged ordinary negligence. In count I, plaintiff
contended that because Loyola notified plaintiff in 1990 to be tested
for HIV and subsequent testing showed that she was negative for
HIV, and because Loyola did not notify her of the need to be tested
for HCV until 2000, she was lulled into a false sense of security that
the blood she had received in 1989 was safe. Plaintiff further alleged
that, as a result of Loyola’s failure to notify her of the need to be
tested for HCV until 2000, her diagnosis and treatment for HCV were
unnecessarily delayed. In count IV, plaintiff alleged that, based on the
FDA memorandum and the NIH statement, Loyola knew or should
have known, in 1996, or at the latest, 1997, of the necessity of
providing notice to her of the need to be tested for HCV and, by
delaying notice until 2000, “breached its duty to act with reasonable
care,” thereby causing her substantial injury.
Loyola moved to dismiss plaintiff’s third amended complaint,
arguing that all counts were barred by the medical malpractice statute
of repose. The circuit court granted Loyola’s motion. Plaintiff
appealed, arguing that her constructive fraud and ordinary negligence
claims should not have been dismissed because the gravamen of these
claims was Loyola’s failure to provide plaintiff with timely notice, i.e.,
a breach of an administrative duty, not subject to the medical
malpractice statute of repose The appellate court rejected the
plaintiff’s argument and affirmed the court below.
Now, in this court, the majority affirms the lower courts’ rulings.
The majority acknowledges the plaintiff’s contention that “the
question in this case is whether the injury [plaintiff] has alleged arose
from patient care or from an administrative decision by Loyola not to
send notice of the need to be tested for HCV.” Slip op. at 5.
-19-
Nevertheless, the majority never considers whether Loyola’s decision
was an administrative decision, but simply holds:
“Plaintiff’s allegations of a duty to notify her and Loyola’s
alleged violation of that duty flows from the blood transfusion
she received during her 1989 hospitalization. *** It is
apparent here that there is a causal connection between
plaintiff’s 1989 hospitalization and blood transfusion and her
current claim against Loyola.” Slip op. at 10-11.
Clearly, what the majority is saying is that, absent the blood
transfusion, plaintiff would have no claim for an alleged duty to notify.
Thus here, as in Brucker, the majority employs a but-for test for
determining whether the statute of repose applies. It is evident from
the quoted material above that the majority recognizes that plaintiff
has alleged the breach of an administrative duty, i.e., that Loyola
breached a duty to give plaintiff timely notice of the need to be tested
for HVC. Nevertheless, the majority never addresses the nature of
plaintiff’s claim, finding only that plaintiff’s claim is subject to the
statute of repose because the alleged breach of this administrative duty
would not exist but for the fact that plaintiff received a blood
transfusion at Loyola in 1989. I disagree with this analysis. As I
explained in Brucker, the focus should be on the nature of the alleged
wrong, not whether it was “causally related” to patient care. See
Brucker, slip op. at 49 (Burke, J., specially concurring). Moreover, I
find the majority’s attempts to distinguish the case at bar from
Cammon v. West Suburban Hospital Medical Center, 301 Ill. App. 3d
939 (1998), and Canas v. Al-Jabi, 282 Ga. App. 764, 639 S.E.2d 494
(2006), to be unpersuasive.
There is no analytical difference between the case at bar and the
spoliation-of-evidence claim in Cammon. In Cammon, plaintiff initially
sought recovery for “negligence in [Dr. Tomera’s] performance of the
surgeries on July 2 and 10, 1992; his misdiagnosis of the inter-
abdominal hematoma; his failure to order timely CT scans; and his
failure to achieve adequate homeostasis following the exploratory
laparotomy.” Subsequently, however, plaintiff sought recovery against
the hospital, alleging that “West Suburban breached its duty to
preserve the operative report for the exploratory laparotomy
performed on July 10, 1992, thereby prejudicing her claims against
Tomera and West Suburban.” The appellate court held that the
-20-
spoliation-of-evidence claim was not subject to the medical
malpractice statute of limitations and repose, stating:
“The breach of duty necessary to support a medical
negligence action is the defendant’s deviation from the proper
medical standard of patient care. Borowski v. Von Solbrig, 60
Ill. 2d 418, 423, 328 N.E.2d 301 (1975). The damages
suffered in such an action arise out of inappropriate patient
care. By contrast, a negligence action for spoliation of
evidence is predicated upon a breach of duty to preserve
evidence. Boyd v. Travelers Insurance Co., 166 Ill. 2d 188,
195, 652 N.E.2d 267 (1995). Although the plaintiff in an
action alleging the negligent destruction of evidence resulting
in an inability to prove a cause of action for medical
negligence must prove the merits of the underlying medical
negligence claim (see Boyd, 166 Ill. 2d at 197-98), the fact
remains that the damages suffered by the plaintiff in such a
case arise from the defendant’s destruction of evidence, not
the breach of a medical standard of patient care.” 301 Ill. App.
3d at 950.
The Cammon court recognized that a claim “arises out of patient
care,” and, thus, falls within the medical malpractice statute of repose,
if the claim is one seeking recovery for medical negligence and the
alleged breach of duty is a breach of the medical standard of care. This
is the same position I took in my special concurrence in Brucker.
Brucker, slip op. at 52 (Burke, J., specially concurring). Nevertheless,
the majority does not overturn the determination in Cammon but,
rather, finds it to be distinguishable, stating, “Cammon stands only for
the unremarkable proposition that not all negligence actions against
physicians or hospitals involve patient care.” Slip op. at 6.
The majority’s attempt to distinguish Cammon from the case at
bar cannot withstand scrutiny. The majority holds that, in Cammon,
the duty to preserve evidence “had nothing whatever to do with
patient care.” Slip op. at 6. But that is not true. If we were to apply
the majority’s “causal connection” test, the Cammon plaintiff’s
spoliation-of-evidence claim was clearly related to her medical
treatment because, absent the fact that the plaintiff in Cammon had
received medical care at the defendant hospital, she would not have a
claim for spoliation of evidence. Moreover, as noted in Cammon, the
-21-
plaintiff would have had to prove the merits of the underlying medical
negligence claim to recover.
If, as the majority holds, not all negligence actions directed to a
medical professional involve patient care and, as a result, are not
subject to the medical malpractice statute of repose, how is it that we
may determine what negligence actions do not involve patient care?
Is it not fair to say that “ordinary negligence” claims are claims which
are not predicated on a breach of the medical standard of care and,
thus, are not subject to the statute of repose? But if that is true, why
is it that the majority never even addresses the nature of plaintiff’s
claim, which, as alleged by the plaintiff, is an ordinary negligence
claim?
The better approach, in my view, was employed by the Georgia
appellate court in Canas. In Canas, the plaintiff received blood
transfusions in 1985 and, because there were no tests to detect HIV
at that time, the blood he received was not tested for HIV. Soon after,
tests were developed for the detection of HIV in donor blood and, in
1988, a Presidential Commission on the Human Immunodeficiency
Virus Epidemic issued a recommendation that all persons who
received transfusions between 1977 and 1988 should be notified “as
soon as practicable” of the need for HIV testing. The defendant
hospital
“did not implement a universal patient notification or ‘recall’
program as recommended by the Presidential Commission;
instead, it implemented a donor look-back program. In that
program, if the hospital discovered that a past blood donor
was HIV positive, then the hospital would identify all patients
who had received that donor’s blood or blood products and
notify those patients of their possible exposure to HIV.”
Because plaintiff’s donor never returned to donate blood, plaintiff was
never notified of the need to be tested. He learned he was HIV
positive several years later when he sought treatment for other
illnesses.
In Canas, the plaintiff presented evidence that the decision to
implement the donor look-back program was an administrative one,
“based on concerns about the expense, logistical complexity, and legal
implications.” The Georgia court of appeals agreed and held that the
-22-
plaintiff’s claim seeking recovery for the defendant’s failure to give
him timely notice of the need to be tested for HIV was an ordinary
negligence claim because the challenged conduct was not medical
diagnosis or treatment but, rather, an administrative decision,
unrelated to the delivery of medical care.
In the case at bar, plaintiff has alleged that Loyola employed a
donor “look-back” program, similar to the one employed in Canas,
for deciding when to notify past blood transfusion patients of the need
to be tested for HCV. Plaintiff has also alleged that the decision to
employ the donor look-back program was an administrative decision
and, therefore, as in Canas, her claim was one for ordinary negligence.
The majority does not explicitly reject the plaintiff’s argument that her
claim is one for ordinary negligence but, rather, distinguishes Canas
on the grounds that the Georgia statute of repose applies to actions
for “medical malpractice,” whereas Illinois’ statute of repose applies
to all actions “arising out of patient care.” However, as I explained in
Brucker, this is a distinction without a difference. See Brucker, slip
op. at 52-53 (Burke, J., specially concurring).
The majority does explicitly reject plaintiff’s argument that “the
fact that the requirements of section 2–622 of the Code (735 ILCS
5/2–622 (West 2002)) do not apply to her case provides further
support for her contention that her claims against Loyola do not arise
out of patient care.” Slip op. at 8. The majority holds that section
2–622 cases are irrelevant because they “focus[ ] only on actions
involving some form of medical malpractice” and “the statute of
repose at issue here encompasses a much broader range of claims.”
Slip op. at 8. Thus, the majority concludes that “the inapplicability of
section 2–622 to this case does not impact the issue of whether
plaintiff’s cause of action arises from patient care.” Slip op. at 8.
In other words, the majority recognizes plaintiff’s claim is one
alleging ordinary negligence, but holds that this fact is of no
significance. I believe this to be error. In my view, cases that draw a
distinction between medical negligence claims and ordinary negligence
claims are relevant because medical negligence claims are subject to
the statute of repose and ordinary negligence claims are not.
Moreover, the majority’s failure to recognize this leads to illogical
results.
-23-
This court’s recent decision in Heastie v. Roberts, 226 Ill. 2d 515
(2007), provides an illustration of this point. In Heastie, the plaintiff
was an emergency-room patient who had been restrained and moved
to a secluded area because he had no apparent injury, but was drunk,
disruptive and deemed a danger to himself and others. While plaintiff
was restrained, a fire broke out in the area where plaintiff was being
held. The origin of the fire could not be determined. However, there
was some evidence that the ignition source might have been a lighter
belonging to the plaintiff. Plaintiff brought a negligence action against
the hospital, as well as certain security guards, technicians, and nurses,
alleging, among other things, that defendants had been negligent
because they failed to restrain him properly, failed to search him for
contraband before restraining him, and failed to monitor him.
On appeal, the issue in Heastie was whether expert medical
testimony was necessary to establish the standard of care with regard
to plaintiff’s claim of negligence based on the hospital personnel’s
failure to search plaintiff for contraband prior to restraining him and
placing him in seclusion. Finding that “[w]hether a hospital patient
should be restrained involves the exercise of medical judgment” but
“[w]hether the patient should be searched for potentially dangerous
contraband before being restrained and sequestered does not”
(Heastie, 226 Ill. 2d at 553), we held that “plaintiff’s failure-to-search
claim *** falls within the category of ordinary negligence” and, for
that reason, expert testimony was not required. We noted, further:
“Prerestraint contraband searches are wholly unrelated to the
diagnosis or treatment of a patient’s condition. They serve no
medical function of any kind. Their purpose is purely safety
related, specifically, to insure that a patient who is going to be
restrained and then left alone will not have access to
implements which may be used to effect an escape, inflict
harm on himself or others, or destroy property. Such a
purpose bears on a hospital’s administrative and management
functions, not its delivery of medical care.” Heastie, 226 Ill.
2d at 553.
According to Heastie, then, the decision to restrain plaintiff was
a medical judgment subject to a medical standard of care, but the
decision not to search plaintiff before restraining him was an
administrative decision and, therefore, plaintiff’s claim based on that
-24-
conduct was one for ordinary negligence. This court was able to make
the analytical distinction between ordinary negligence and medical
negligence in Heastie. There is no reason we should not apply the
same analysis in the case at bar.
In the present case, plaintiff has alleged that Loyola decided to
notify transfusion recipients according to a donor look-back program,
even though it had been recommended by the FDA and NIH in 1996
and 1997 that persons who had received transfusions prior to 1992 be
notified of the need to be tested for HCV. Plaintiff further alleges that
this decision was an administrative one and that the notice which she
was allegedly entitled to receive was neither diagnosis, nor treatment,
but was related to her safety and the safety of those around her.
Accordingly, plaintiff contends that she has alleged a claim for
ordinary negligence which is not subject to the medical malpractice
statute of repose. In light of these allegations, I find it wholly
insufficient for this court to rule to the contrary based only on the fact
that “there is a causal connection between plaintiff’s 1989
hospitalization and blood transfusion and her current claim.” Slip op.
at 12.
In addition, Heastie graphically illustrates a logical anomaly
created by the majority’s interpretation of the “arising out of patient
care” language in the statute. Heastie holds that the decision not to
search a patient for contraband prior to restraining him is an
administrative decision “wholly unrelated to the diagnosis or treatment
of a patient’s condition” and, consequently, expert testimony to
establish a medical standard of care is not required. However, had the
issue been the applicability of the medical malpractice statute of
limitations and repose, there is no question that, using the majority’s
test, this same negligence claim would be subject to the statute
because it is “causally related” to plaintiff’s emergency-room care and
the “medical decision” to restrain the patient. Absent the fact that the
defendants decided to restrain plaintiff (which Heastie held was
patient care), there would have been no need to search defendant for
contraband. Thus, according to Heastie, the failure to search a patient
is a breach of an administrative decision and, as such, ordinary
negligence, yet this same ordinary negligence claim would be subject
to the medical malpractice statute of repose because it is related to
patient care. There is no logical reason for such disparate treatment.
-25-
Heastie and Cammon highlight the flaws in the majority’s analysis.
As I explained in Brucker, the “causal connection” test for deciding
whether the statute of repose applies is a “but-for” test, which is far
too broad. Moreover, the fact that the majority believes these cases to
be distinguishable demonstrates that the majority’s “causal
connection” test provides no principled or reasoned means for
deciding when the statute of repose applies and when it does not. See
Brucker, slip op. at 50 (Burke, J., specially concurring).
Finally, as noted above, the majority never looks at the nature of
the wrongful conduct, as alleged in plaintiff’s complaint, and never
resolves the question of whether plaintiff is seeking recovery for the
breach of an administrative duty or the breach of a medical standard
of care. In short, the majority never directly addresses plaintiff’s
assertion that she has alleged an ordinary negligence claim. The
necessary implication, therefore, is that it does not matter whether a
plaintiff’s claim is one for ordinary negligence. It will be subject to the
medical malpractice statute of repose simply because the claim
occurred in the context of medical care. The majority’s position
sweeps too broadly and is an unwarranted expansion of the medical
malpractice statute of repose.
In my view, the proper test for determining whether a claim “arises
out of patient care” should be whether the wrongful conduct which is
the basis for the claim is medical malpractice. See Brucker, slip op. at
51 (Burke, J., specially concurring). In such instances, the alleged
breach of duty will be a breach of the medical standard of patient care.
See Cammon, 301 Ill. App. 3d at 950.
In the case at bar, the wrongful conduct alleged in plaintiff’s
constructive fraud and ordinary negligence claims is Loyola’s failure
to give her timely notice of the need to be tested for HCV. The
damages plaintiff sought to recover were a result of that conduct, not
because she received tainted blood in the first instance. The alleged
delay in providing notice has nothing to do with the provision of
medical care to plaintiff. As pled, the alleged duty to provide notice of
updated information to blood transfusion recipients, if such a duty
exists, is an administrative one, separate and independent from the
“patient care” plaintiff received in 1989.
It is my view that plaintiff’s ordinary negligence and constructive
fraud claims do not “arise out of patient care” and are not subject to
-26-
the medical malpractice statute of repose. Accordingly, these claims
should not have been dismissed on that basis. I would reverse the
lower courts’ dismissal of plaintiff’s constructive fraud and ordinary
negligence claims and remand for further proceedings.
I note that Loyola denies that a duty to provide information to
former blood transfusion recipients exists. However, because of the
nature of my dissent, I do not reach the issue of whether plaintiff’s
complaint sufficiently alleges that Loyola owed plaintiff a duty to
notify her of the need to be tested for HCV prior to 2000. Thus, I
express no opinion on whether plaintiff sufficiently states causes of
action for constructive fraud and ordinary negligence such that these
claims would necessarily survive a motion to dismiss brought under
section 2–615 of the Code of Civil Procedure.
-27-