The opinion
Docket No. 109738.
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
____________________
KRISTEN KAUFMANN, Appellant, v. ROGER A. SCHROEDER,
M.D., et al. (Jersey Community Hospital, a Municipal Corporation,
Appellee).
Opinion filed February 25, 2011.
JUSTICE BURKE delivered the judgment of the court, with
opinion.
Justice Theis concurred in the judgment and opinion.
Justice Freeman specially concurred, with opinion, joined by
Justices Thomas and Karmeier.
Justice Garman dissented, with opinion, joined by Chief Justice
Kilbride.
OPINION
The single issue in this case is whether claims brought by
plaintiff, Kristen Kaufmann (Kaufmann), against Jersey Community
Hospital (JCH) are time-barred. Kaufmann initially filed suit against
Dr. Roger A. Schroeder (Schroeder) and JCH on December 31, 2007,
to recover for injuries suffered during a hospitalization in January
2006. The circuit court of Jersey County found that the one-year
limitation period found in section 8–101(a) of the Local
Governmental and Governmental Employees Tort Immunity Act
(Tort Immunity Act or Act) (745 ILCS 10/8–101(b) (West 2006))
applied with respect to claims brought against JCH. Because
Kaufmann’s suit was filed more than one year from the date of her
alleged injuries, the circuit court dismissed the claims against JCH as
time-barred.
Kaufmann appealed contending that her complaint was timely
filed with respect to JCH because she is seeking recovery for injuries
“arising out of patient care” and, thus, the two-year statute of
limitations in section 8–101(b) of the Tort Immunity Act applies. The
appellate court affirmed the circuit court’s dismissal order. 396 Ill.
App. 3d 729. For reasons that follow, we affirm the judgment of the
appellate court.
BACKGROUND
On December 31, 2007, Kaufmann filed an initial two-count
complaint against Schroeder and JCH. She amended the complaint on
June 23, 2008. In her amended complaint, consisting of 10 counts,
Kaufmann alleged that she had been hospitalized at JCH in January
2006 by Dr. Schroeder, who had been her obstetrician-gynecologist
since 2004. Kaufmann further alleged that during her hospitalization
she was sedated by Dr. Schroeder for “an unnecessary exam and/or
procedure which did not require sedation” and that, after she was
sedated, Dr. Schroeder committed a deviant act of a sexual nature on
her. Specifically, Kaufmann claimed that, as she began to regain
consciousness after being sedated, she became aware that Dr.
Schroeder was licking her breasts.
As to JCH, Kaufmann’s complaint contained allegations that JCH
had been aware that Dr. Schroeder had sexually attacked other
patients yet continued to permit him to examine female patients
without having a nurse or other staff member present. Kaufmann also
alleged that she notified the Illinois State Police of the incident and
the police instructed her to refrain from filing suit against Dr.
Schroeder until the police were able to collect certain unspecified
evidence regarding Dr. Schroeder’s sexual assault of Kaufmann and
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other patients.1
Counts I through III of the amended complaint were brought
against Dr. Schroeder and alleged battery, intentional infliction of
emotional distress and negligence. Counts IV through X of the
amended complaint were brought against JCH and alleged negligent
hiring, negligent retention, negligent supervision, “negligence (willful
and wanton),” intentional infliction of emotional distress, negligent
infliction of emotional distress and vicarious liability for the
misconduct of Dr. Schroeder as alleged in counts I through III.
On July 3, 2008, JCH moved for the dismissal of Kaufmann’s
amended complaint, alleging that it was time-barred. The hospital
argued that, because it is a municipal corporation, the governing
statute of limitations is section 8–101(a) of the Tort Immunity Act
(745 ILCS 10/8–101(a) (West 2006)). That provision requires that
any suit brought against a local governmental entity be commenced
within one year of the date the injury was received or the cause of
action accrued. Because Kaufmann filed suit more than one year from
the date the injury was received, JCH contended that the cause of
action should be dismissed.
Kaufmann disagreed. She argued that because her injuries arose
out of patient care, the two-year statute of limitations in section
8–101(b) of the Act (745 ILCS 10/8–101(b) (West 2006)) applied
and, thus, her complaint was timely.
The circuit court granted the hospital’s motion and dismissed
counts IV through X of Kaufmann’s complaint. Kaufmann sought
reconsideration. However, after a hearing, the circuit court denied
plaintiff’s motion and expressly held, pursuant to Supreme Court
1
This factual allegation was made in relation to Kaufmann’s alternative
argument before the appellate court that, if the one-year statute of
limitations in section 8–101(a) of the Tort Immunity Act applied, the
limitations period should be equitably tolled because she was prevented
from filing her civil suit while the criminal investigation was pending. The
appellate court found no basis for tolling the statute of limitations because
Schroeder was indicted in May 2006, which left Kaufmann more than six
months to file her claims against JCH before the one-year limitations period
expired. 396 Ill. App. 3d at 743. Kaufmann does not raise equitable tolling
as an issue in her appeal before this court.
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Rule 304(a), that there was no just reason to delay appeal. Ill. S. Ct.
R. 304(a) (eff. Jan. 1, 2006).
Plaintiff appealed and on December 8, 2009, the appellate court
filed an opinion affirming the circuit court’s dismissal of Kaufmann’s
complaint. 396 Ill. App. 3d 729. A majority of the court held that the
one-year limitations period applied because “[p]laintiff’s injuries
arose from Schroeder’s act of sexual gratification, which was clearly
separate from her patient care.” 396 Ill. App. 3d at 742. Presiding
Justice Myerscough dissented. She agreed with plaintiff that the two-
year statute of limitations applied. In her view plaintiff’s injuries
arose out of patient care because, “This is not a case of sexual assault
that just happened to occur in a medical setting, this is a case of
sexual assault that is inextricable from plaintiff’s medical care.”
We granted plaintiff’s petition for leave to appeal. Ill. S. Ct. R.
315 (eff. Feb. 26, 2010).
ANALYSIS
As noted earlier, the single issue before this court is whether, with
regard to JCH, Kaufmann’s complaint was timely filed. JCH is a
municipal corporation and, as such, the time period in which a claim
may be brought against it is limited by the Local Governmental and
Governmental Employees Tort Immunity Act. Section 8–101 of the
Act, which sets forth the limitation periods, provides in subsection
(a):
“No civil action other than an action described in subsection
(b) may be commenced in any court against a local entity or
any of its employees for any injury unless it is commenced
within one year from the date that the injury was received or
the cause of action accrued.” (Emphasis added.) 745 ILCS
10/8–101(a) (West 2006).
The exception referred to in subsection (a) and contained in
subsection (b) is as follows:
“No action for damages for injury or death against any local
public entity or public employee, 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
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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 those dates occurs first, but in no
event shall such an action be brought more than 4 years after
the date on which occurred the act or omission or occurrence
alleged in the action to have been the cause of the injury or
death.” (Emphasis added.) 745 ILCS 10/8–101(b) (West
2006).
In the case at bar, JCH argues that the circuit and appellate courts
below correctly found that the one-year limitations period in section
8–101(a) applied to the seven counts brought against it in
Kaufmann’s complaint. Kaufmann, however, contends that the lower
courts were incorrect and that the limitations period found in
subsection (b) applies because the injuries for which she seeks
recovery are injuries arising out of patient care.
The ultimate issue before this court, therefore, is whether the
injuries for which Kaufmann seeks recovery in her claims against
JCH are injuries “arising out of patient care” within the meaning of
section 8–101(b) of the Act. In the seven counts brought by
Kaufmann against JCH, Kaufmann seeks recovery based on various
claims of independent negligence by JCH, as well as its vicarious
liability for the negligence of its employee, Dr. Schroeder. However,
in all instances, Kaufmann seeks recovery for damages based on the
injuries she suffered as a result of the sexual battery committed by Dr.
Schroeder. Kaufmann concedes this to be so, but contends that the
sexual battery occurred during her hospitalization and in the course
of her treatment by Dr. Schroeder. Thus, she contends her injuries
stemming from the sexual battery arose out of patient care. We
disagree.
Although we have never interpreted section 8–101(b) of the Act,
we have interpreted the identical language contained within the
limitations provision in section 13–212 of the Code of Civil
Procedure (735 ILCS 5/13–212 (West 2006)), which pertains to civil
actions brought against a physician or hospital. See Brucker v.
Mercola, 227 Ill. 2d 502 (2007); Orlak v. Loyola University Health
System, 228 Ill. 2d 1 (2007). Section 13–212 provides:
“Except as provided in Section 13–215 of this Act [735 ILCS
5/13–215], no action for damages for injury or death against
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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
2006).
It is entirely appropriate that we should interpret the “arising out
of patient care” language contained in subsection (b) of section 8–101
of the Tort Immunity Act in conformity with section 13–212 because
the two provisions were intended to be harmonious. In 2003, the
legislature amended the Tort Immunity Act, adding subsection (b) in
an effort to bring it in alignment with section 13–212. As
Representative Hultgren explained, by adding subsection (b), a person
who suffers injuries arising out of patient care would not be
disadvantaged by a shortened limitations period simply because he or
she happened to obtain treatment at a public facility rather than a
private one. See 93d Ill. Gen. Assem., House Proceedings, April 15,
2003, at 7-8 (statements of Representative Hultgren).
Turning to our previous interpretation of the “arising out of
patient care” language, we first look to Brucker. In Brucker, this court
concluded that an injury arises out of patient care if the injury is
causally connected to the patient’s medical care and treatment. See
Brucker, 227 Ill. 2d at 523. Although we agreed that “arising out of
patient care” was to be construed broadly, we emphasized that our
interpretation was not so broad as to encompass “but for” causation.
Brucker, 227 Ill. 2d at 523-24.
Similarly, in Orlak, this court reiterated that “arising out of patient
care” did not encompass “but for” causation. Rather, it meant that the
injury had “ ‘[t]o originate; to stem (from),’ or ‘to result (from)’ ” the
patient’s medical care or treatment. See Orlak, 228 Ill. 2d at 14-15
(quoting Black’s Law Dictionary 115 (8th ed. 2004)).
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In the case before this court, Kaufmann did not allege that she was
injured because of the medical treatment she received. In other words,
she did not claim that the “unnecessary” exam and sedation she
received during her hospitalization harmed her in any way. Rather,
the harm resulted from the sexual assault. The sedation that was given
and the “unnecessary” exam (if one was, in fact, performed) were not
part of Kaufmann’s medical treatment, but simply a means by which
Schroeder was able to accomplish his sexual assault on Kaufmann.
In sum, we find that Kaufmann’s injury arose out of Dr.
Schroeder’s sexual assault and not any medical care she received
from him. The sexual assault, itself, was not medical care, nor was
there even any pretense that Dr. Schroeder’s sexual acts were
necessitated by, or in any way related to, the medical care he was
providing to Kaufmann. There was no suggestion by Schroeder that
there existed a medical reason for his actions.
CONCLUSION
Kaufmann’s injury did not arise from patient care. For this reason,
subsection (b) of the Tort Immunity Act, containing the two-year
limitations period for injuries “arising out of patient care,” is
inapplicable and, thus, the claims brought against JCH were properly
dismissed as time-barred.
For the reasons stated, the appellate court judgment is affirmed.
Affirmed.
JUSTICE FREEMAN, specially concurring:
Although I join fully in today’s decision holding that plaintiff’s
injury did not arise from patient care, I write separately to explain that
the standard the court employs is consistent with our precedent and
not, as the dissent suggests, a “significant departure” from it.
This case requires us to revisit Brucker v. Mercola, 227 Ill. 2d 502
(2007), a divided decision in which I joined in the majority opinion.
In Brucker this court addressed, as it does here, the statutory phrase
“arising out of patient care,” and looked to workers’ compensation
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cases for guidance in construing the term. In doing so, we relied on
Sisbro, Inc. v. Industrial Comm’n, 207 Ill. 2d 193 (2003), a workers’
compensation case in which the court stated:
“The ‘arising out of’ component is primarily concerned
with causal connection. To satisfy this requirement it must be
shown that the injury had its origin in some risk connected
with, or incidental to, the employment so as to create a causal
connection between the employment and the accidental
injury.” Sisbro, 207 Ill. 2d at 203.
With this construction in mind, we held in Brucker that “arising out
of patient care” simply required “a causal connection between the
patient’s medical care and the injury.” Brucker, 227 Ill. 2d at 523.
The phrase was not to be construed so broadly as to encompass “but
for” causation, but it nevertheless covered injuries which had their
origin in, or were incidental to, a patient’s medical care and treatment.
Brucker, 227 Ill. 2d at 523-24. Applying this standard, we concluded
the plaintiff’s injury arose out of patient care. In Brucker, the plaintiff
alleged she and her fetus were poisoned when her doctor negligently
sold her the wrong substance to treat a medical condition the doctor
had diagnosed. We held the injury was caused by the plaintiff’s
medical treatment.
Here, plaintiff’s injury resulted when her doctor allegedly
committed a sexual assault against her while she was hospitalized for
a urinary tract infection. According to plaintiff, the doctor licked her
breasts. Using the exact same standard applied in Brucker, it cannot
be said that the alleged sexual assault against plaintiff was caused by
her medical treatment for a urinary infection. Simply stated, the injury
did not have its origin in, nor was it incidental to, the medical
treatment for plaintiff’s infection. The only connection between this
treatment and plaintiff’s injury is that, “but for” being in the hospital
for the treatment, she would not have been in the place where the
alleged assault occurred.
Moreover, to hold that plaintiff’s injury did arise from patient care
would be to conclude that criminal acts such as the alleged sexual
assault at issue here have their origin in or are incidental to medical
treatment. I do not believe the legislature, in drafting section 8–101(b)
of the Tort Immunity Act, intended criminal acts such as sexual
assault to be included within the ambit of “patient care.” As the
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appellate court below concluded:
“To find [that the doctor’s] actions constituted patient care,
we would have to believe the General Assembly intended that
anything a physician does to a patient constitutes patient care.
We conclude the General Assembly did not have this intent.”
396 Ill. App. 3d at 741.
Mindful of the maxim that courts “must presume that when the
legislature enacted a law, it did not intend to produce absurd,
inconvenient or unjust results” (Brucker, 227 Ill. 2d at 514), I believe
today’s decision is consistent with both this court’s precedent and,
more important, the General Assembly’s intent. For these reasons,
and those expressed in today’s opinion, I join in the court’s decision.
JUSTICES THOMAS and KARMEIER join in this special
concurrence.
JUSTICE GARMAN, dissenting:
As the majority points out, the “ultimate issue” before this court
is whether the plaintiff’s complaint constitutes an “action for damages
for injury or death *** arising out of patient care” within section
8–101(b) of the Act. I agree with the majority that section 8–101(b)
should be given the same effect as the identical language of section
13–212 of the Code of Civil Procedure, for all of the enumerated
reasons. However, the majority’s treatment of Brucker and Orlak is
incomplete and overlooks both the spirit and the language of those
cases. As a result, the majority today effectively applies a new
standard that is a significant departure from our precedents and those
of the appellate court. For these reasons, I respectfully dissent.
As the majority notes, this court first discussed the meaning of
section 13–212’s “arising out of patient care” language in Brucker v.
Mercola, 227 Ill. 2d 502 (2007). In my view, a full discussion of that
case is warranted. There, Anna Brucker and her husband filed a two-
count medical malpractice action against Dr. Joseph Mercola and his
practice. The complaint alleged that, while she was pregnant, Brucker
sought advice from Dr. Mercola regarding an allergy problem.
Mercola, a doctor of osteopathic medicine, prescribed an L-glutamine
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supplement. As a service to his patients, Mercola’s office sold many
nutritional supplements, including L-glutamine. Mercola testified in
his deposition that his customers were almost all patients, but that
sometimes one of his patients would refer a friend or family member
to make a purchase. When Brucker tried to purchase the L-glutamine
from Mercola, however, she was given a bottle that instead contained
selenium. Later, it was discovered that one of Mercola’s employees
had accidentally filled several L-glutamine bottles with selenium,
because the selenium was unlabeled in the storage room and left
where L-glutamine was typically kept. Brucker followed Mercola’s
dosage instructions, believing the supplement to be L-glutamine, and
she ingested a toxic dose of selenium. Brucker, 227 Ill. 2d at 506-09.
While the action was pending, Brucker amended her complaint to
include a third count, brought on behalf of her minor son, Robert
Brucker. Count III alleged that Robert, with whom Anna was
pregnant at the time of the incident, had been poisoned in utero when
Anna ingested the selenium. The defendants moved to dismiss the
amended count, however, arguing that it was barred by section
13–212(b)’s statute of repose. Id. Section 13–212(b) provides, in
pertinent 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 8 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 where the person entitled to
bring the action was, at the time the cause of action accrued,
under the age of 18 years ***.” 735 ILCS 5/13–212(b) (West
2006).
The plaintiffs acknowledged that count III had been filed more
than eight years after the alleged injury to Robert, but they argued,
inter alia, that the complaint was one alleging simple negligence, not
an injury “arising out of patient care.”
In beginning our analysis, this court noted that “when a cause of
action is filed against a physician or other covered medical provider,
the legal theory upon which the plaintiff styles his or her claim will
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not govern whether section 13–212 applies.” Brucker, 227 Ill. 2d at
515. We referred to Hayes v. Mercy Hospital & Medical Center, 136
Ill. 2d 450 (1990), in which this court discussed the purpose and
intent behind section 13–212. In both Hayes and Brucker, the court
acknowledged that the statute of repose was enacted in response to
what the legislature viewed as a medical malpractice insurance crisis.
The statute was “viewed as necessary to prevent extended exposure
of physicians and other hospital personnel to potential liability for
their care and treatment of patients, thereby increasing an insurance
company’s ability to predict future liabilities. [Citation.] This
increased ability to predict liability was meant to assist in reducing
health-care malpractice insurance premiums.” (Internal quotation
marks omitted.) Brucker, 227 Ill. 2d at 515 (quoting Hayes, 136 Ill.
2d at 457-58). In Hayes, this court concluded that the legislative
intent could be advanced only if the statute was read in such a way
that it limited exposure to liability for injury or death arising out of
patient care under all theories of liability. Hayes, 136 Ill. 2d at 459;
see also Brucker, 227 Ill. 2d at 515-16.
The court in Brucker also contrasted section 13–212 with section
2–622 of the Code of Civil Procedure, which imposes various
pleading requirements for “any action, whether in tort, contract or
otherwise, in which the plaintiff seeks damages for injuries or death
by reason of medical, hospital, or other healing art malpractice.”
(Emphasis added.) 735 ILCS 5/2–622(a) (West 2006); Brucker, 227
Ill. 2d at 516-17. We noted that section 13–212 is broader than
section 2–622, such that there are some actions to which section
13–212 applies but section 2–622 does not. As the court later
explained, “all medical malpractice claims involve injuries arising out
of patient care, but not all injuries arising out of patient care were by
reason of medical malpractice.” Id. at 516-17, 532. Therefore, the
court did not consider the portions of the parties’ arguments that
debated whether the Bruckers’ complaint alleged “malpractice.” Id.
at 518.
Having concluded that “arising out of patient care” is not
synonymous with “medical malpractice,” we looked to the plain and
established meaning of “arising out of”:
“The phrase ‘arising out of’ has a set meaning in the law. In
any context in which it is used, the phrase has been defined
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broadly and refers to a causal connection. Miller’s definition
of ‘arising out of’ as ‘generally mean[ing] “originating from,”
“growing out of,” or “flowing from” ’ [citation] is consistent
with definitions found in other authorities. Black’s defines
‘arise’ as ‘[t]o originate; to stem (from)’ or ‘[t]o result
(from).’ Black’s Law Dictionary 115 (8th ed. 2004).
Webster’s defines ‘arise’ as ‘to originate from a specified
source.’ Webster’s Third New International Dictionary 117
(1993).” Brucker, 227 Ill. 2d at 521-22.
Because “arising out of” has a “set meaning in the law,” we
looked to how Illinois courts have construed that phrase in other
contexts. Specifically, “[t]he phrase ‘arising out of’ is construed most
often in workers’ compensation proceedings.” Brucker, 227 Ill. 2d at
521-22. The Workers’ Compensation Act (820 ILCS 305/1 et seq.
(West 2006)) provides compensation for injuries “arising out of and
in the course of” employment. 820 ILCS 301/2 (West 2006). We
noted that, in that context:
“The ‘arising out of’ component is primarily concerned
with causal connection. To satisfy this requirement it must be
shown that the injury had its origin in some risk connected
with, or incidental to, the employment so as to create a causal
connection between the employment and the accidental
injury. [Citation.] Stated otherwise, an injury arises out of
one’s employment if, at the time of the occurrence, the
employee was performing acts he was instructed to perform
by his employer, acts which he had a common law or statutory
duty to perform, or acts which the employee might reasonably
be expected to perform incident to his assigned duties.
[Citations.] A risk is incidental to the employment where it
belongs to or is connected with what an employee has to do
in fulfilling his duties.” (Internal quotation marks omitted.)
Brucker, 227 Ill. 2d at 522 (quoting Sisbro, Inc. v. Industrial
Comm’n, 207 Ill. 2d 193, 203-04 (2003)).
Importantly, we noted that “arising out of” does not encompass
mere “but for” causation under the Workers’ Compensation Act.
Thus, it is not sufficient to show only that an employee would not
have been at the location of the injury but for his or her employment,
nor is it sufficient to show only that the accident would not have
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occurred but for the fact that the employment placed the claimant in
the position “in which he was injured by a neutral (neither personal
nor related to employment) force.” Brucker, 227 Ill. 2d at 522-23
(citing USF Holland, Inc. v. Industrial Comm’n, 357 Ill. App. 3d 798,
803 (2005)).
We acknowledged that in some other contexts, “arising out of”
has been linked with “but for” causation. However, we noted that
those contexts had generally used “arising out of” in conjunction with
“relating to” and “in connection with,” such as in parts of the Pension
Code (e.g., 40 ILCS 5/5–227 (West 2006)), or they had involved
insurance policies that must be construed broadly in favor of coverage
(see, e.g., State Automobile Mutual Insurance Co. v. Kingsport
Development, LLC, 364 Ill. App. 3d 946, 953-54 (2006)). Turning
back to section 13–212, the Brucker court rejected a definition of
“arising out of” that equated to mere “but for” causation:
“Considering the above authorities, we construe ‘arising
out of patient care’ 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. This court has been defining
‘arising out of’ as referring to cause or origin since at least
1917 (see Eugene Dietzen Co. v. Industrial Board, 279 Ill. 11,
15 (1917) [(a workers’ compensation case)]), so we should
presume that the legislature was well aware of the judicial
construction of this phrase when it used it in section 13–212.”
Brucker, 227 Ill. 2d at 523-24.
Thus, in Brucker, this court adopted the same construction of
“arising out of” that courts in Illinois have used in workers’
compensation proceedings for over 90 years. Indeed, the majority
emphasized its reliance on workers’ compensation proceedings when
it responded to the specially concurring justices’ alternative
approaches, noting:
“The specially concurring justices offer no explanation for
why we should not presume that the legislature intended
‘arising out of’ to have the same meaning always assigned to
it. Moreover, in the workers’ compensation context, this court
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has for years been construing the phrase to refer to cause or
origin while not encompassing ‘but for’ causation, so the
specially concurring justices’ assertions that this is an
unworkable test are not well-taken.” Id. at 524 n.4.
Turning to the facts in Brucker, we concluded that “there is no
question” that the Bruckers alleged an injury arising out of patient
care. In rejecting the argument that the connection was mere “but for”
causation, the court opined, “Anna was not injured by some neutral
force that had nothing to do with the care and treatment defendants
provided to her. Rather, her injury was caused because she ingested
the substance in the bottle that Dr. Mercola sold to her to treat a
medical condition that Dr. Mercola had diagnosed.” Id. at 524-25.
Orlak v. Loyola University Health System, 228 Ill. 2d 1 (2007),
decided the same day as Brucker, is also instructive. There, the
plaintiff’s complaint included counts alleging constructive fraud,
medical negligence, medical battery, and ordinary negligence. Orlak,
228 Ill. 2d at 4-6. The counts all stemmed from the alleged failure of
the defendant hospital, Loyola University Health System, to timely
inform the plaintiff that she may have contracted hepatitis C from a
blood transfusion years earlier. According to the complaint, the
plaintiff was treated by Loyola in 1989 following a work-related
accident, and during her hospitalization she was given a blood
transfusion. At the time, no definitive test existed to determine the
presence of viral hepatitis in blood. In 1990, Loyola contacted the
plaintiff and recommended that she be tested for human
immunodeficiency virus (HIV). Plaintiff was tested, and the test
results were negative for HIV. In 2000, the hospital again contacted
the plaintiff and notified her that her blood donor had recently tested
positive for the hepatitis C virus, and it urged her to be tested. The
plaintiff tested positive for hepatitis C. Id.
In her ordinary negligence count, which was at issue before this
court, the Orlak plaintiff claimed that Loyola knew or should have
known by March 1997 that the plaintiff needed to be tested for
hepatitis C. She alleged a continuing breach of duty for every day
thereafter that the hospital failed to notify her. Id. at 5-6. Loyola
argued that the plaintiff’s complaint was barred in its entirety by
section 13–212. The circuit court dismissed the complaint, and the
plaintiff appealed, arguing that her ordinary negligence claim was not
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“arising out of patient care.” Id. at 6.
This court found that the ordinary negligence count did allege
injuries “arising out of patient care,” subject to the statute of repose
in section 13–212. In doing so, we rejected the plaintiff’s argument
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.” (Emphasis added.) Id. at 9. As we had
done in Brucker, we noted in Orlak that the legislature intended
“arising out of patient care” to encompass a “much broader range of
claims” than simple medical malpractice. Id. at 12. We further noted:
“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.” Id. at
14.
We also relied on Brucker’s definition of “arising out of patient care”
as “simply requiring a causal connection between the patient’s
medical care and the injury,” noting that it was not mere “but for”
causation, but “ ‘clearly covers any injuries that have their origin in,
or are incidental to, a patient’s medical care and treatment.’ ” Id. at 15
(quoting Brucker, 227 Ill. 2d at 523-24).
Applying this construction to the facts of Orlak, we
acknowledged that the plaintiff’s allegation of failure to notify did
“not involve the provision of medical care.” Orlak, 228 Ill. 2d at 16.
“However,” we held, “the omission itself cannot be viewed in a
vacuum. 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.” Id. at
16-17. We also reiterated that the purpose of the statute of repose in
section 13–212 is to curtail “potentially open-ended liability for
health-care providers” and “reduce the cost of medical malpractice
insurance and to assure its continued availability to medical
practitioners.” Id. at 17. We noted, as we had in Brucker, that
construing “arising out of patient care” narrowly would be contrary
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to that purpose. Id.
Both Brucker and Orlak relied on three cases from our appellate
court in reaching their conclusions, and those cases also inform my
analysis. First, in Miller v. Tobin, 186 Ill. App. 3d 175 (1989), the
plaintiff filed a claim alleging that a psychiatrist violated the Mental
Health and Developmental Disabilities Confidentiality Act (now 740
ILCS 110/1 et seq. (West 2006)) when the psychiatrist revealed
confidential information to the plaintiff’s wife. Miller, 186 Ill. App.
3d at 176. The appellate court held that “arising out of” is “broad and
generally means ‘originating from,’ ‘growing out of,’ or ‘flowing
from.’ ” Id. at 177. The court also noted that section 13–212 “is a
general limitations section designed to apply to all cases against
physicians arising out of patient care.” Id. Thus, the court found that
because the plaintiff and his wife had consulted the psychiatrist for
medical issues, and because the disclosure occurred as part of the
wife’s treatment, section 13–212 applied to bar the claim. Id. at 178.
In Walsh v. Barry-Harlem Corp., 272 Ill. App. 3d 418 (1995), the
plaintiff brought a consumer fraud complaint, alleging that the doctor
intentionally falsified test results and misrepresented that the plaintiff
needed to have a cataract removed and a new lens implanted. Walsh,
272 Ill. App. 3d at 420-21. Although the count at issue did not
include any injury caused by the actual surgery, the court nonetheless
held that it was “arising out of patient care,” noting that “the
plaintiff’s allegations of misconduct were inextricable from the
defendants’ diagnosis and treatment of his eyes.” Id. at 425.
Finally, in Cammon v. West Suburban Hospital Medical Center,
301 Ill. App. 3d 939 (1998), the plaintiff sought damages for the
death of her husband following surgery. Although her complaint
contained several counts alleging medical malpractice, count V of the
complaint alleged spoliation of evidence based on the hospital’s
destruction of certain records related to the incident. The trial court
dismissed count V as time-barred under section 13–212(a), but the
appellate court reversed, citing Miller. Cammon, 301 Ill. App. 3d at
950. This court in Brucker questioned Cammon’s analysis, which
focused on the breach of duty alleged by the plaintiff rather than
whether the complaint alleged an injury that originated from, grew
out of, or flowed from her husband’s care and treatment, but we
opined, “[r]egardless of whether Cammon’s duty analysis was
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appropriate, however, its conclusion was unquestionably correct.
Destroying her husband’s operative report after the fact was not part
of the care and treatment that the doctor and hospital provided to the
plaintiff’s husband. The injury that the plaintiff suffered was to her
ability to prove her lawsuit, and that injury did not arise out of patient
care.” Brucker, 227 Ill. 2d at 521.
Brucker, Orlak, and the appellate court cases cited therein make
it clear that “arising out of patient care” is given broad effect in
Illinois. Although it does not mean mere “but for” causation, it is not
limited to allegations that a medical practitioner breached a medical
standard of care, nor is it limited to injuries caused directly by the
treatment of a patient. Thus, injuries caused by the mistake of a non-
medically-trained assistant in selling nutritional supplements (as in
Brucker), by the failure of a hospital to notify a former patient of the
need for testing (as in Orlak), by the disclosure of confidential
information during the treatment of another patient (as in Miller), or
by the deliberate falsification of test results (as in Walsh) have all
been deemed to be “arising out of patient care.” As we have stated,
the standard incorporates “any injuries that have their origin in, or are
incidental to, a patient’s medical care and treatment.” Orlak, 228 Ill.
2d at 15; Brucker, 227 Ill. 2d at 523-24.
Although the majority acknowledges our broad interpretation of
“arising out of patient care,” it nonetheless concludes that plaintiff’s
injuries in this case do not arise out of patient care because
“Kaufmann’s injury arose out of Dr. Schroeder’s sexual assault and
not any medical care she received from him.” Slip op. at 7. This
conclusion overlooks the fact that the alleged sexual assault
undoubtedly had its “origin in” or was “incidental to” Schroeder’s
medical care and treatment of plaintiff. Schroeder was Kaufmann’s
obstetrician-gynecologist, whom Kaufmann consulted during her
pregnancy. As part of her care and treatment, Kaufmann was
hospitalized, and during her hospitalization, she was treated by
Schroeder. According to her complaint, Schroeder sedated plaintiff
“during an unnecessary exam and/or procedure which did not require
sedation.” It was only then, while plaintiff was hospitalized and
sedated, that the alleged sexual assault occurred, perpetrated by the
doctor who performed the allegedly unnecessary exam.
Critically, Kaufmann was not injured by a doctor or patient who
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simply happened across her during her hospitalization. She was not
the victim of a random criminal attack that coincidentally occurred
while she was at the hospital. This is not a case of mere “but for”
causation. If, as the concurring justices suggest, the only connection
between her patient care and her injury was that “ ‘but for’ being in
the hospital for the treatment, she would not have been in the place
where the alleged assault occurred,” I would agree that her injuries
were not arising out of patient care. But that is not the case before us.
According to Kaufmann’s complaint, Schroeder consulted with
Kaufmann as part of Kaufmann’s patient care. He diagnosed a
urinary problem as part of her patient care. He hospitalized her as
part of her patient care. He informed her that an examination was
necessary as part of her patient care, and he sedated her under the
guise of her patient care. The whole of Schroeder’s control over
plaintiff and his ability to commit the allegedly deviant sexual acts
were a direct result of his actual and pretextual treatment of her, and
her injuries flowing from those acts are injuries “arising out of patient
care.”
The majority notes that “[t]he sexual assault, itself, was not
medical care, nor was there even any pretense that Dr. Schroeder’s
sexual acts were necessitated by, or in any way related to, the medical
care he was providing to Kaufmann.” Slip op. at 7. However, as we
held in Orlak, the acts or omissions alleged to have caused the injury
“cannot be viewed in a vacuum” (Orlak, 228 Ill. 2d at 16-17), and we
have consistently rejected such a narrow view of a plaintiff’s
complaint. In Brucker, we rejected the plaintiff’s argument that the
mislabeling of nutritional supplements for sale was not patient care,
holding that the plaintiff was injured because she accepted a
prescription from Dr. Mercola as part of her treatment and she
followed his instructions with regard to that prescription. In Orlak, we
rejected the plaintiff’s argument that a violation, eight years after her
treatment had ended, of an ongoing administrative duty to notify her
was not “arising out of patient care,” holding that the duty to notify
arose only because she had earlier received a blood transfusion as part
of her treatment. In Walsh, which we endorsed in both Brucker and
Orlak, the court rejected the plaintiff’s argument that the falsification
of test results perpetrated to justify the performance and billing of a
medically unnecessary procedure was not “arising out of patient
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care,” holding that because the plaintiff had consulted the defendants
for eyecare, the fraud was “inextricable” from his care and treatment.
In each of these cases, this court refused to narrow its analysis of
the plaintiffs’ claims to include only the particular act or omission
alleged to have caused the injury, instead examining the totality of the
circumstances leading to the injury to determine whether it had its
“origin in” or was “incidental to” the patient’s care and treatment. Yet
in this case, the majority simply concludes that “[t]he sexual assault,
itself, was not medical care.” If this alone is enough to remove an
injury from the statute of repose in section 13–212, Brucker should
be reversed because the labeling and sale of nutritional supplements,
itself, was not medical care. Under the rule as the majority today
applies it, Orlak, Miller, and Walsh are all likewise of questionable
continuing validity.
Finally, I note that even if I agreed with the majority’s conclusion
that the sexual assault of Kaufmann can be divorced from its
circumstances and was not incidental to her treatment, several of
plaintiff’s counts against Jersey Community Hospital should
nonetheless be considered “arising out of patient care.” In her
amended complaint, plaintiff seeks damages not only for the battery,
but for vicarious liability for the unnecessary sedation, unnecessary
medication, unnecessary exam or procedure, and lack of informed
consent for that procedure that she alleges preceded the battery. Even
under the majority’s narrow view of “arising out of patient care,”
these acts, unlike sexual assault, are all “medical care” in and of
themselves. However, the majority dismisses plaintiff’s argument on
these points, opining that “the harm resulted from the sexual assault,”
and the unnecessary medical treatment was “simply a means by which
Schroeder was able to accomplish his sexual assault on Kaufmann.”
Slip op. at 6-7. According to the majority, then, it is the motives of
the physician that determine whether the acts are “arising out of
patient care.” Under such a rule, the same intentional acts alleged by
the same plaintiff under the same circumstances may have different
results depending on the mental state of the actor. The problems with
this approach are manifest. For example, taken together with Walsh,
this conclusion means that if Schroeder had performed the
unnecessary procedure so that he could illegally bill Kaufmann for the
service, as was the allegation in Walsh, then his acts would be
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“arising out of patient care,” but because he allegedly performed them
so that he could assault her, they are not.
In summary, the majority’s holding in this case represents a
striking and inexplicable departure from our established precedents
in Brucker and Orlak, as well as those of the appellate court. By
focusing exclusively on the particular mechanism of the injury,
something we have consistently refused to do, the majority reaches a
result that contravenes the legislative intent that section 13–212 be
construed broadly, an intent we have repeatedly reaffirmed. Where,
as here, the plaintiff’s injury occurred during the course of treatment
and at the hands of the doctor performing that treatment, I would hold
that it was “arising out of patient care.” For these reasons, I
respectfully dissent.
CHIEF JUSTICE KILBRIDE joins in this dissent.
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