Kaufmann v. Schroeder

JUSTICE FREEMAN, specially concurring:

Although I join fully in today’s decision holding that plaintiffs 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. Mercóla, 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 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 plaintiffs 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 plaintiffs medical treatment.

Here, plaintiffs 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 plaintiffs infection. The only connection between this treatment and plaintiffs 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 plaintiffs 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 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.