The opinion
PRESIDING JUSTICE MYERSCOUGH, dissenting:
I respectfully dissent. I would reverse the trial court’s dismissal. The majority is correct that the phrase “arising out of patient care” in section 8 — 101(b) of the Tort Immunity Act (745 ILCS 10/8 — 101(b) (West 2006)) should be construed to mean the same thing as it does in section 13 — 212 of the Code (735 ILCS 5/13 — 212 (West 2006)). However, I disagree with the majority’s determination that plaintiff s injuries did not arise out of the patient care she received from Dr. Schroeder at Jersey Hospital. The majority correctly asks, “Instead, we must ask from what actions did plaintiffs alleged injury arise.” 396 Ill. App. 3d at 741. The majority’s answer to that question is too simplistic, “In this case, plaintiffs alleged injuries arose from Schroeder’s act of licking her breast.” 396 Ill. App. 3d at 741. This is not a case of sexual assault that just happened to occur in a medical setting. Rather, this is a case of sexual assault that is inextricable from the patient’s medical care.
First, the majority paints plaintiffs complaint with an overly broad brush, boiling it down to a mere intentional battery. But plaintiff does not simply allege battery in her complaint. The majority ignores the pleadings here. Plaintiff also alleges negligence against Schroeder for performing an unnecessary medical examination or procedure, administering unnecessary drugs or sedatives, failing to request others be present during her examination, failing to obtain her informed consent before the examination and administration of drugs and “mismanaging] the transference phenomenon.”
Plaintiff further alleges negligence against Jersey Hospital for hiring and retaining Schroeder despite knowledge that he was unfit for his position (counts IV and V), negligent and willful and wanton supervision (counts VI and VII), intentional and negligent infliction of emotional distress (counts VIII and IX), and vicarious liability (count X) for retaining Schroeder despite knowledge of allegations that he had committed deviant sexual acts on other former patients. Because the trial court dismissed counts TV through X on statute-of-limitations grounds, the merit of these allegations is not at issue on appeal.
Moreover, plaintiff alleges that all of these acts caused her injuries. That Schroeder allegedly committed these acts to set the stage for a deviant sexual act is irrelevant. Injuries from unnecessary treatment undertaken not to heal a patient but further a medical provider’s own goals arise out of patient care because the provider’s decision to render unnecessary treatment implicates his or her judgment. See Walsh, 272 Ill. App. 3d at 425, 649 N.E.2d at 618 (the plaintiffs additional medical expenses and emotional distress resulting from unnecessary eye surgery were injuries arising out of patient care because surgeons made a medical judgment that plaintiff did not need the surgery but operated anyway). Therefore, under section 13 — 212 of the Code, “patient care” can encompass even intentional wrongdoing, particularly in the form of unnecessary examinations and procedures. Cases interpreting section 13 — 212 of the Code must apply to section 8 — 101(b) of the Tort Immunity Act. Plaintiffs injuries therefore arise out of her patient care at Jersey Hospital because her allegations of misconduct are inextricable from Schroeder’s diagnosis and treatment of her urinary tract infection. See Walsh, 272 Ill. App. 3d at 425, 649 N.E.2d at 618.
Second, I disagree with the majority’s interpretation of “arising out of patient care.” The majority appears to adopt a test similar to the classic test for obscenity: “I know ‘arising out of patient care’ when I see it.” A more appropriate interpretation of “arising out of’ is one which Illinois courts have long applied to the Workers’ Compensation Act (820 ILCS 305/1 through 30 (West 2006)). Essentially, this analysis seeks to determine whether employment exposes an employee to a certain risk to a greater extent than the general public. If it does, the employee’s injury arises out of her employment. Caterpillar Tractor Co. v. Industrial Comm’n, 129 Ill. 2d 52, 58 , 541 N.E.2d 665, 667 (1989). If we adapt this test for the phrase “arising out of patient care” in section 8 — 101(b) of the Tort Immunity Act and section 13 — 212 of the Code, not only do we reach the same results in the medical-malpractice cases the majority cites, but we find that unnecessary medical procedures, unnecessary sedation, and even sexual assault may arise from patient care in appropriately limited circumstances.
I. ALLEGATIONS IN THE COMPLAINT ALLEGE INJURIES ARISING OUT OF PATIENT CARE
Our supreme court has said that injuries “arising out of patient care” are those which have their origin in, or are incidental to, the entire scope of a patient’s medical care and treatment. Brucker, 227 Ill. 2d at 523-24, 886 N.E.2d at 318-19. Accordingly, the phrase “arising out of patient care” should be read broadly. Orlak, 228 Ill. 2d at 13, 885 N.E.2d at 1006. The plaintiff nonetheless must show a causal connection between her patient care and her injury. Brucker, 227 Ill. 2d at 524, 886 N.E.2d at 319. However, this broad understanding does not encompass “but for” causation: “When the only connection between the treatment and the injury is that the patient would not have been at the place where an injury occurred but for his treatment or that the treatment placed the plaintiff in a position where he was injured by a neutral force, the injury does not arise out of patient care.” (Emphasis added.) Brucker, 227 Ill. 2d at 534, 886 N.E.2d at 324. Importantly, the Brucker court also noted that for a plaintiff to connect an injury to patient care, there must be an allegation that the medical provider committed an error in judgment or breached a medical standard of care. Brucker, 227 Ill. 2d at 536, 886 N.E.2d at 325.
At first blush, the instant case presents a straightforward instance of “but for” causation: But for plaintiff’s patient care, Schroeder would not have had an opportunity to commit the alleged deviant sexual act. Again, however, plaintiffs complaint claims not only battery (count I) but negligence regarding the unnecessary examination and sedation (count III). In essence, plaintiff alleges that Schroeder made a medical judgment when he correctly diagnosed her condition (urinary tract infection), knew she would not benefit from certain treatment (examination and sedation), yet proceeded with the unnecessary treatment as a means to his own sexual gratification. This is analogous to Walsh, where surgeons correctly diagnosed the plaintiffs condition, knew he would not benefit from certain treatment (surgery), yet proceeded with the unnecessary treatment as a means to their own financial gratification. Walsh, 272 Ill. App. 3d at 423, 649 N.E.2d at 617. As in Walsh, plaintiffs allegations of misconduct are inextricable from Schroeder’s diagnosis and treatment of her condition. (Arguably, even the alleged deviant sexual act itself implicates a medical judgment regarding patient care, namely a decision to divert legitimate treatment for a malicious sexual frolic.)
The majority rests its holding on the simplistic assertion that rape is not patient care. Because plaintiff alleges emotional distress arising from the deviant sexual act, and because there could have been no medically beneficial reason for Schroeder to lick plaintiffs breasts as part of a treatment for a urinary tract infection, the majority reasons plaintiff failed to show a relation between her treatment and her injuries. 396 Ill. App. 3d at 742. But the alleged deviant act did not occur in a vacuum — if it occurred, it occurred in a context of outrageously negligent patient care. Rape is not “patient care,” but neither is fraud: In Walsh, the doctors conferred no medical benefit upon the plaintiff by performing unnecessary surgery. However, the court rejected the plaintiffs argument that the fraudulent business aspects of the doctors’ conduct (intentional misrepresentation of test results, et cetera) were somehow separable from the plaintiff’s patient care. “[T]he plaintiff’s allegations of misconduct were inextricable from the defendants’ diagnosis and treatment of his eyes.” Walsh, 272 Ill. App. 3d at 425, 649 N.E.2d at 618. The intentional wrongdoing was so bound up with the patient care that it became impossible to separate injuries arising out of the fraud from injuries arising out of the patient care. (Of note, our supreme court discussed and approved of Walsh in both Brucker and Orlak. See Brucker, 227 Ill. 2d at 519, 886 N.E.2d at 316. Orlak, 228 Ill. 2d at 13-14, 885 N.E.2d at 1006-07.) Likewise, the plaintiff in Orlak argued that the injury she suffered from the hospital’s failure to advise her to be tested for a blood-borne virus was somehow separate from the injuries she suffered from the tainted blood itself. The supreme court disagreed: “[T]he omission itself cannot be viewed in a vacuum. Plaintiffs 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.” Orlak, 228 Ill. 2d at 16, 885 N.E.2d at 1008.
When a doctor assaults a patient during an examination, or uses patient care as a pretext for sexual misconduct, the exact cause of the patient’s injuries is difficult to assess. For example, a man is unnecessarily sedated for a prostate examination and sexually assaulted by his doctor. As a result of this incident, he develops extreme emotional distress, which manifests itself in loss of appetite and insomnia. The psychological toll caused by the sexual assault resulting in his loss of appetite cannot be separated from the sleepless nights flowing from the helplessness he felt because he was unnecessarily sedated. The injuries such a patient suffers from the violation of his bodily integrity cannot be separated from the injuries he suffers as a result of the unnecessary medical procedure. To attempt similar separation in the instant case is impossible and inconsistent with the case law.
II. CONSTRUCTION OF “ARISING OUT OF” SHOULD PARALLEL CONSTRUCTION OF SUCH LANGUAGE IN WORKERS’ COMPENSATION CASES
Section 8 — 101(b) of the Tort Immunity Act provides a two-year statute of limitations for actions seeking damages for injuries “arising out of patient care.” (Emphasis added.) 745 ILCS 10/8 — 101(b) (West 2006). Similarly, the Workers’ Compensation Act grants an employee compensation for “any injury, disablement or death arising out of and in the course of his employment.” (Emphasis added.) 820 ILCS 305/ 1(b)(3) (West 2006). In Brucker, the supreme court noted that “arising out of’ has a set meaning in the law and is construed most often in the context of the Workers’ Compensation Act:
“The phrase does not encompass ‘but for’ causation in the Workers’ Compensation Act in that it is not enough merely to show that the claimant would not have been at the place where the injury occurred but for his or her employment. [Citations.] It is also not sufficient to show that the accident would not have occurred but for the fact that the claimant’s employment placed the claimant in a position in which he was injured by a neutral (neither personal nor related to employment) force. [Citation.]” Brucker, 227 Ill. 2d at 522-23, 886 N.E.2d at 318.
While the supreme court also noted that courts have equated “arising out of’ with but-for causation in other contexts such as insurance, the court ultimately rejected that approach:
“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 [citation] 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, 886 N.E.2d at 318-19.
The supreme court noted in a footnote that there is no reason
“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 has for years been construing the phrase to refer to cause or origin while not encompassing ‘but for’ causation.” Brucker, 227 Ill. 2d at 524 n.4, 886 N.E.2d at 319 n.4.
The majority summarily dismisses this analogy to the Workers’ Compensation Act with a citation to American Jurisprudence, ignoring the cases below that clearly find injuries such as battery and assault arise out of the employment where such are risks distinctly associated with employment. Just as the nurse is more likely to be assaulted, so is the naked patient undergoing unnecessary medical procedures. See Rush-Presbyterian-St. Luke’s Medical Center v. Industrial Comm’n, 258 Ill. App. 3d 768, 773 , 630 N.E.2d 1175, 1179 (1994) (physical and psychological injuries a white-uniformed hospital dietary supervisor suffered when multiply, brutally raped in the staff area of a hospital by two intruders were found to arise out of her employment because there was evidence that her attackers mistook her for a nurse and psychiatric testimony nurses are more likely to be sexually assaulted than women in general because nurses are seen as strongly maternal and often disturbed men have Oedipal issues).
Similarly, to recover under the Workers’ Compensation Act (820 ILCS 305/1 through 30 (West 2006)), a claimant must show that his injury arises out of his employment, which means that it “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, Inc. v. Industrial Comm’n, 207 Ill. 2d 193, 203 , 797 N.E.2d 665, 672 (2003). A claimant’s risk must be compared to that faced by the general public. Illinois Institute of Technology Research Institute v. Industrial Comm’n, 314 Ill. App. 3d 149, 162 , 731 N.E.2d 795, 806 (2000). An employee might be exposed to three types of risks, namely (1) risks distinctly associated with the employment (resultant injuries are compensable); (2) risks that are personal to the employee (resultant injuries are not compensable); and (3) “neutral risks,” which lack particular employment or personal characteristics. Potenzo v. Illinois Workers’ Compensation Comm’n, 378 Ill. App. 3d 113, 116 , 881 N.E.2d 523, 527 (2007).
Compensation for neutral risks depends upon whether the claimant was exposed to a risk of injury to an extent greater than that to which the general public is exposed. Illinois Institute of Technology Research Institute, 314 Ill. App. 3d at 163 , 731 N.E.2d at 807 . If an employee is exposed to a risk common to the general public to a greater degree than other persons, the resulting injury arises out of his employment; but if the injury results from a hazard to which the employee would have been equally exposed apart from the employment or a risk personal to the employee, the injury does not arise out of his employment. Caterpillar, 129 Ill. 2d at 58-59 , 541 N.E.2d at 667 .
Intentional assaults by third parties are considered “neutral risks” unless evidence supports a finding that the attacker had a personal motive for the attack. See Village of Winnetka v. Industrial Comm’n, 250 Ill. App. 3d 240, 243 , 621 N.E.2d 150, 152 (1993). Assaults have been held to arise out of employment on a number of occasions, particularly where working conditions increase an employee’s chances of encountering a person likely to attack. County of Cook v. Industrial Comm’n, 165 Ill. App. 3d 1005, 1010 , 520 N.E.2d 896, 899 (1988) (where judge’s secretary was stabbed and robbed while eating lunch in employee parking lot, her injuries arose out of her employment because the parking lot’s proximity to the courthouse put her at increased risk for victimization); see also Potenzo, 378 Ill. App. 3d at 119 , 881 N.E.2d at 528-29 (where deliveryman was assaulted by unknown assailant while making a delivery in an alley, his injuries arose out of his employment because traveling employees are exposed to “street risks” to a higher degree than the general public); Holthaus v. Industrial Comm’n, 127 Ill. App. 3d 732, 736 , 469 N.E.2d 237, 239 (1984) (injuries public pool manager suffered when attacked by an escaped convict found to arise out of her employment because the solitary and isolated nature of her work made her “particularly vulnerable” to attack, whereas “the general public was neither required to be there nor had reason to be there”); Rush-Presbyterian, 258 Ill. App. 3d at 773 , 630 N.E.2d at 1179 (physical and psychological injuries a white-uniformed hospital dietary supervisor suffered when multiply, brutally raped in the staff area of a hospital by two intruders were found to arise out of her employment because there was evidence that her attackers mistook her for a nurse and psychiatric testimony nurses are more likely to be sexually assaulted than women in general because nurses are seen as strongly maternal and often disturbed men have Oedipal issues); C.A. Dunham Co. v. Industrial Comm’n, 16 Ill. 2d 102, 112-13 , 156 N.E.2d 560, 566 (1959) (death of traveling employee who was killed when airplane exploded due to bomb in cargo hold held to arise out of his employment because the travel requirements of his employment put him at increased risk for dying in a plane crash).
Adapted to the medical context, if a patient’s care exposes him to a risk distinctly associated with medical care or to a risk common to the general public to a greater degree than the general public, then the injury must arise out of his patient care. However, if the injury results from a hazard to which the patient would have been equally exposed apart from the patient care, or a risk personal to the patient, the injury does not arise out of patient care.
The vast majority of these negligence cases arise from risks distinctly associated with medical care: A nurse injects too much of a given drug, a doctor amputates the wrong leg, a diagnostician fails to recognize the symptoms of a certain disease, et cetera. The injuries in Orlak (contracting a blood-borne virus from a transfusion) and Stiffler (internal damage from a detached surgically implanted device) fall into this category. Like risks distinctly associated with employment in workers’ compensation cases, these injuries must always be considered to arise out of patient care.
The analysis from workers’ compensation cases, then, is most usefully applied to “neutral” risks — those neither distinctly associated with medical care nor personal to the patient. Whether an injury caused by a neutral risk “arises from patient care” depends upon whether the patient was exposed to a risk of injury to an extent greater than that to which the general public is exposed. This precludes simple cases of “but for” causation while expanding the scope of “patient care” beyond mere negligence — precisely what section 8 — 101(b) of the Tort Immunity Act intends. 745 ILCS 10/8 — 101(b) (West 2006) (applying to actions “for damages for injury or death *** whether based upon tort, or breach of contract, or otherwise” (emphases added)).
Of course, the risk analysis is predicated on a “but for” test: but for the individual’s status as a patient, she would not have been exposed to a certain risk. However, the same implicit “but for” premise is utilized in the workers’ compensation analysis. Thus, it is critical to examine the risk itself. For example, the general public is at a risk to be defrauded; however, depending on the extent to which the surgeon advertises to the public, only his patient might be exposed to the risk of unnecessary surgery as a means of fraud, as in Walsh. The general public is at risk to consume mislabeled nutritional supplements, even those sold to the public by a doctor or a hospital; however, in Brucker, the doctor essentially sold supplements only to his patients, putting only them at a higher risk. See Brucker, 227 Ill. 2d at 526-28, 886 N.E.2d at 320-21; Stiffler, 965 F.2d at 141.
Conversely, spoliation of evidence is a risk inherent in any lawsuit, not just one particular lawsuit arising from a specific act of patient care. See Cammon, 301 Ill. App. 3d at 950, 704 N.E.2d at 739 (claim that hospital was negligent in destroying patient records that plaintiff needed to support a medical-malpractice lawsuit did not arise out of patient care; plaintiffs injury was her inability to prove her medical-negligence allegations, and it arose out of the actual destruction of the documents, not out of the breach of the standard of care).
Moreover, if a patient trips on a curb in the clinic parking lot on his way to a doctor’s appointment, or slips on a puddle of liquid in the doctor’s office, his resulting injuries do not arise from his patient care; the general public is always at risk of encountering conditions like these. See Caterpillar, 129 Ill. 2d at 62-63 , 541 N.E.2d at 669 (injuries incurred when employee stepped off curb on employer’s premises did not arise out of employment because “[cjurbs, and the risks inherent in traversing them, confront all members of the public”); see also Brucker, 227 Ill. 2d at 524 n.3, 886 N.E.2d at 319 n.3.
In the instant case, plaintiffs allegations fall within this definition of “patient care.” The risk of an unnecessary medical examination or procedure is a risk distinctly associated with medical care. Arguably, unnecessary sedation might be a neutral risk because it can occur outside of a medical context (e.g., the use of so-called “date rape” drugs). However, unnecessary sedation in a medical setting involves a unique combination of (1) the availability of anaesthetics and (2) the trust relationship between health-care providers and patients. A person who would flee from a needle-wielding stranger on the street willingly rolls up his sleeve for his needle-wielding doctor because he trusts him. Therefore, regardless whether the risk of unnecessary sedation is considered neutral or distinctly associated with medical care, patients are still exposed to this risk to a greater extent than the general public.
What, then, of the alleged deviant sexual act? Are patients at a greater risk to be sexually assaulted than the general public? The answer is almost certainly no. Again, however, it is inappropriate to view a battery of the kind plaintiff alleges in a vacuum. Patients are at no higher risk of being sexually assaulted in general, but they are at an infinitely higher risk of being assaulted under the pretext of care or in the course of an otherwise legitimate medical examination. This hospital sexual assault differs fundamentally from a situation in which a doctor sexually assaults a patient on the street, or in a bar, or in the hallway leading to his office. The potential for sexual abuse in the modern medical setting is evinced by the extreme pains conscientious health-care providers take to ensure they will never be accused of it. The Department of Professional Regulation may revoke or suspend a practitioner’s medical license for “[i]mmoral conduct in the commission of any act including, but not limited to, commission of an act of sexual misconduct related to the licensee’s practice.” (Emphasis added.) 225 ILCS 60/22(20) (West 2006).
Our legislature has recognized the potential for sexual misconduct in the mental-health-care context in the Sexual Exploitation in Psychotherapy, Professional Health Services, and Professional Mental Health Services Act (Exploitation Act) (740 ILCS 140/1 through 7 (West 2006)). The Exploitation Act provides a private right of action against mental-health-care providers, psychotherapists, unlicensed health professionals, or unlicensed mental-health professionals for engaging in even consensual adult sexual relationships with their patients. 740 ILCS 140/2 (West 2006). Before this statute came into effect, Illinois courts suggested that sexual misconduct by therapists in the guise or course of treatment is a form of malpractice, or gross negligence, because it implicates the “transference phenomenon” referenced by plaintiff:
“ ‘The “transference phenomenon” *** has been defined in psychiatric practice as “a phenomenon *** by which the patient transfers feelings toward everyone else to the doctor, who then must react with a proper response, the countertransference, in order to avoid emotional involvement and assist the patient in overcoming problems.” [Citation.] The mishandling of this phenomenon, which generally results in sexual relations or involvement between the psychiatrist or therapist and the patient, has uniformly been considered as malpractice or gross negligence in other jurisdictions, whether the sexual relations were prescribed by the doctor as part of the therapy, or occurred outside the scope of treatment.’ ” Corgan v. Muehling, 143 Ill. 2d 296, 307 , 574 N.E.2d 602, 607 (1991), quoting Horak v. Biris, 130 Ill. App. 3d 140, 146 , 474 N.E.2d 13, 18 (1985).
Illinois courts have recognized that a therapist’s mishandling of the transference phenomenon by pursuing sexual contact with his patients is a breach of a therapist’s duty of due care. See Corgan, 143 Ill. 2d 296 at 307 , 574 N.E.2d at 607 ; Pavlik v. Kornhaber, 326 Ill. App. 3d 731, 741-42 , 761 N.E.2d 175, 184 (2001); St. Paul Fire & Marine Insurance Co. v. Downs, 247 Ill. App. 3d 382, 392 , 617 N.E.2d 338, 344-45 (1993).
However, an action under the Exploitation Act is distinct from a malpractice action because the therapist’s sexual misconduct must not be part of standard medical treatment. Plaintiff need not allege a failure to conform to the applicable standard of care and comply with the requirements of section 2 — 622 of the Code (735 ILCS 5/2 — 622 (West 2006)). See 740 ILCS 140(1) (f) (West 2006); Wolf v. Black Hawk College, 268 Ill. App. 3d 808, 809 , 646 N.E.2d 1, 2 (1995).
Apparently, patients undergoing psychotherapeutic care are exposed to a risk of sexual exploitation that is unique to their status as patients and, thus, by definition the risk of assault is higher than that faced by the general population. However, the “transference phenomenon” may not be recognized in any medical setting other than psychotherapy. The final allegation in count III of plaintiffs first amended complaint is Schroeder’s “mismanage[ment of] the transference phenomenon.” Count X, which seeks to establish vicarious liability against Jersey Hospital, also mentions Schroeder’s “unique position of influence over [plaintiff],” which caused her to “surrender ] almost complete control and autonomy to [Jersey Hospital] and Schroeder,” as well as the foreseeable risk of sexual contact with patients attached to gynecologists in general and Schroeder in particular. Because the amended complaint alleges only that Schroeder was a gynecologist, not a psychotherapist, nor was he performing psychotherapy, no cause of action for sexual exploitation exists under the Act. However, because Kaufmann’s status as a patient made her more vulnerable than the general population to the risks of unnecessary sedation, unnecessary examination, and a deviant sexual act (particularly because Schroeder allegedly isolated her), her alleged injuries arose out of patient care.
For these reasons, I would reverse the trial court’s judgment.