Hamblin v. Ogunleye

2024 IL App (4th) 240645

• Court: Appellate Court of Illinois
• Decided: December 11, 2024
• Docket: 4-24-0645
• Status: Published

Opinion

2024 IL App (4th) 240645 FILED December 11, 2024 NO. 4-24-0645 Carla Bender 4th District Appellate IN THE APPELLATE COURT Court, IL

OF ILLINOIS

FOURTH DISTRICT

GARY HAMBLIN, Executor of the Estate of ) Appeal from the Kathleen Whorrall, Deceased, ) Circuit Court of ) McLean County Plaintiff-Appellant, ) No. 22LA151 ) v. ) ) BAMIDELE OGUNLEYE, M.D., and ) ADVANCED WOMEN’S HEALTHCARE, S.C., ) Honorable ) Donald W. Knapp Jr., Defendants-Appellees. ) Judge Presiding.

JUSTICE VANCIL delivered the judgment of the court, with opinion. Justices Steigmann and Lannerd concurred in the judgment and opinion.

OPINION

¶1 Plaintiff, Gary Hamblin, as the executor of the estate of Kathleen Whorrall, seeks

to recover on survival and wrongful death claims for the alleged negligence of defendants,

Bamidele Ogunleye, M.D., and Advanced Women’s Healthcare, S.C. (AWH), in failing to

convey pathology results to Whorrall. The trial court granted summary judgment in favor of

defendants, holding the claims were barred by the relevant statute of repose’s time constraints.

735 ILCS 5/13-212 (West 2018). On appeal, plaintiff argues the statute of repose does not apply

here because (1) AWH is not properly licensed and (2) the claims in this case are not medical

malpractice claims and do not arise out of patient care. For the reasons that follow, we affirm the

trial court’s decision. ¶2 I. BACKGROUND

¶3 On June 4, 2018, Kathleen Whorrall underwent a laparoscopic hysterectomy

performed by Bamidele Ogunleye, M.D., at OSF St. Joseph Medical Center in Bloomington,

Illinois. Dr. Ogunleye is a doctor employed by AWH, a medical corporation. According to a

surgical pathology report from June 11, 2018, Whorrall was diagnosed with a “left ovarian tumor

with features suggestive of possible sex cord tumor with annular tubules.” After sharing the

results with members of the department, the decision was made to refer the case to the

Department of Surgical Pathology at Mayo Clinic. Whorrall attended several follow up

appointments and was not informed of the pathology results. She was later informed of her

unknown diagnosis in January 2021.

¶4 Plaintiff filed his complaint on November 1, 2022, alleging medical negligence

occurring between June 4, 2018, and August 1, 2018. Defendants filed an answer and affirmative

defense based on the statute of repose and later filed a motion for summary judgment. Plaintiff

filed a motion pursuant to Illinois Supreme Court Rule 191 (eff. Jan. 4, 2013) and was granted

leave to take depositions. Plaintiff then filed an addendum to his complaint, alleging

“institutional negligence” against AWH and claiming AWH was not licensed by the Department

of Financial and Professional Regulation (Department), and therefore it was not covered by the

statute of repose. In response, defendants filed an amended motion for summary judgment.

¶5 The trial court granted defendants’ motion for summary judgment, as the claims

were barred by the statute of repose. 735 ILCS 5/13-212 (West 2018). It held the statute applied

to Dr. Ogunleye, as the suit was brought outside of the statute’s four-year period and no genuine

issue of material fact existed. As to AWH, the trial court held that—pursuant to Real v. Kim, 112

Ill. App. 3d 427 (1983), and Solich v. George & Anna Portes Cancer Prevention Center of

-2- Chicago, Inc., 158 Ill. 2d 76 (1994)—it was the intent of the General Assembly for the statute of

repose to apply to a corporate entity. Thus, as those claims were also brought outside the

statutory four-year limitation, they were barred.

¶6 This appeal followed.

¶7 II. ANALYSIS

¶8 Plaintiff advances two arguments on appeal. First, he argues AWH is not properly

licensed under the Medical Corporation Act (805 ILCS 15/1 et seq. (West 2018)) and because

the statute of repose only applies to those “duly licensed” under state law, it does not cover

AWH. Second, plaintiff argues the statute of repose does not apply to the claims in this case

because they are not medical malpractice claims, but instead are more precisely characterized as

claims of institutional negligence, and do not arise out of patient care.

¶9 The trial court granted defendants’ summary judgment. Summary judgment is

appropriate “if the pleadings, depositions, and admissions on file, together with the affidavits, if

any, show that there is no genuine issue as to any material fact and that the moving party is

entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 2022). A trial court’s

ruling on a summary judgment motion is reviewed de novo. Bagent v. Blessing Care Corp., 224

Ill. 2d 154, 163 (2007).

¶ 10 A. Licensure Required Under the Statute of Repose

¶ 11 The statute of repose in this case states:

“[N]o action for damages for injury or death against any physician, dentist,

registered nurse or hospital duly licensed under the laws of this State *** 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

-3- 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.”

735 ILCS 5/13-212(a) (West 2018).

¶ 12 We note at the outset that although the statute does not explicitly apply to medical

corporations, the First District appellate court has held that the word “physician,” as used in the

statute of repose, “includes corporations formed to practice medicine under the Medical

Corporations Act.” Real, 112 Ill. App. 3d at 437. The trial court cited this principle, and neither

party disputes it. The point of contention is on the phrase “duly licensed under the laws of this

State.” Plaintiff argues that because AWH did not have a “certificate of registration” from the

Department, as required by section 5 of the Medical Corporation Act (805 ILCS 15/5 (West

2018)), it was not “duly licensed,” as required by the statute of repose. Therefore, the question

before us is whether a medical corporation must obtain a “certificate of registration” in order to

be “duly licensed” and benefit from the protections of the statute of repose.

¶ 13 For the following reasons, we hold that a “certificate of registration” is not a

“license” under the Medical Corporation Act, and instead, a medical corporation incorporated

under the Medical Corporation Act is “duly licensed” if the physician, dentist, registered nurse,

or other practitioner or officer from whose conduct the claim arises is properly licensed under the

Medical Practice Act of 1987 (Medical Practice Act) (225 ILCS 60/1 et seq. (West 2018)).

¶ 14 1. Statutory Analysis

¶ 15 The primary objective when construing the meaning of a statute is to ascertain

and give effect to the intent of the legislature. Chatham Foot Specialists, P.C. v. Health Care

-4- Service Corp., 216 Ill. 2d 366, 382 (2005). In determining legislative intent, our inquiry begins

with an examination of the plain language of the statute. Id. We view all provisions of a statutory

enactment as a whole, and as such, words and phrases should not be construed in isolation but

must be interpreted in light of other relevant provisions of the statute. Id. In construing a statute,

we presume that the General Assembly did not intend absurdity, inconvenience, or injustice. Id.

As such, we now examine the plain language of the statutes at issue in this case.

¶ 16 Medical corporations are created and governed by the Medical Corporation Act.

Section 2 of the Medical Corporation Act provides that

“[o]ne or more persons licensed pursuant to the Medical Practice Act of 1987 ***

may form a corporation pursuant to the ‘Business Corporation Act of 1983’ ***

to own, operate and maintain an establishment for the study, diagnosis and

treatment of human ailments and injuries, whether physical or mental, and to

promote medical, surgical and scientific research and knowledge ***.” Id. § 2.

Furthermore, section 2 mandates that “medical or surgical treatment, consultation or advice may

be given by shareholders, directors, officers, agents, and employees of the corporation only if

they are licensed pursuant to the Medical Practice Act of 1987.” (Emphasis added.) Id.

¶ 17 Notably, the Medical Corporation Act does not contain any requirement that a

medical corporation itself be “licensed.” Instead, section 5 states: “No corporation shall open,

operate or maintain an establishment for any of the purposes set forth in Section 2 of this Act

without a certificate of registration from the Department.” Id. § 5. Corporations may obtain a

“certificate of registration” by submitting a written application containing the corporation’s name

and primary mailing address, the name and address of the registered agent, other information as

may be required by the Department, and payment of the $50 registration fee. Id. Upon receipt of

-5- the application, the Department investigates the corporation to ensure that the “incorporators,

officers, directors and shareholders are all licensed pursuant to the [Medical Practice Act]” and

that there are no disciplinary actions pending against any of them. Id.

¶ 18 Nearly all of the Medical Corporation Act’s uses of the term “license” refer to

individuals properly licensed under the Medical Practice Act, like the above language in section

2. For example, section 13 of the Medical Corporation Act mandates that, “[a]ll of the officers,

directors and shareholders of a corporation subject to this Act shall at all times be persons

licensed pursuant to the [Medical Practice Act].” (Emphasis added.) Id. § 13(a). Section 13 also

states that “[n]o corporation may issue any of its capital stock to anyone other than an individual

who is duly licensed under the [Medical Practice Act].” (Emphasis added.) Id. § 13(b). Section

13 adds that

“[a] corporation may, for purposes of dissolution, have as its shareholders,

directors, officers, agents, and employees individuals who are not licensed under

the [Medical Practice Act], provided that the corporation does not render any

medical services nor hold itself out as capable of or available to render medical

services during the period of dissolution.” (Emphases added.) Id. § 13(c).

Moreover, section 10 of the Medical Corporation Act states that the Department “may suspend

or revoke any certificate of registration or may otherwise discipline the certificate holder” for

several reasons, including “the revocation or suspension of the license to practice medicine of

any officer, director, shareholder or employee not promptly removed or discharged by the

corporation.” (Emphases added.) Id. § 10.

¶ 19 The only place that “license” is used relating to a corporation is in section 6.1 of

the Medical Corporation Act, which mandates that if the registration renewal fee is paid by a

-6- check that is not honored by a financial institution due to insufficient funds and the corporation

continues to practice, “an additional fee of $100 shall be imposed for practicing without a current

license.” Id. § 6.1. Section 6.1 also states:

“The Department shall notify the corporation whose certificate of registration has

lapsed, within 30 days after the discovery by the Department that such

corporation is practicing without a current certificate, that the corporation is

operating without a certificate, and of the amount due to the Department, which

shall include the lapsed renewal fee and all other fees required by this Section.”

(Emphases added.) Id.

¶ 20 Therefore, there is ambiguity in the statute regarding the terms “license” and

“certificate.” The Medical Corporation Act does not define “license.” However, section 18 of the

Medical Corporation Act states that the Illinois Administrative Procedure Act (5 ILCS 100/1-1

et seq. (West 2018)) is incorporated “as if all of the provisions” were included. 805 ILCS 15/18

(West 2018). The Illinois Administrative Procedure Act defines “license” as “the whole or part

of any agency permit, certificate, approval, registration, charter, or similar form of permission

required by law, but it does not include a license required solely for revenue purposes.”

(Emphasis added.) 5 ILCS 100/1-35 (West 2018).

¶ 21 This apparent ambiguity in the statute is illuminated by analogous case law.

¶ 22 2. Analogous Case Law

¶ 23 Plaintiff relies primarily on Solich. In Solich, the plaintiff originally brought an

action alleging that his condition could have been averted if the defendant had not negligently

failed to report to him the results of a chest X-ray taken in 1975. His wife, who eventually

succeeded him in the case after he died, asserted her own claim for loss of consortium. Solich,

-7- 158 Ill. 2d at 78. The question before our supreme court was whether the defendant not-for-profit

corporation that administered an examination of the deceased plaintiff fell under the protection

of a previous version of the statute of repose at issue in this case. Id. at 81-82.

¶ 24 The supreme court held that the defendant did not fall within the parameters of the

statute, as it was not a physician, dentist, registered nurse, or hospital and held no licenses under

the Medical Practice Act or other similar acts which require licensure. Id. at 82. Although the

court noted that the “statutory reference to physicians includes corporations formed to practice

medicine under the Medical Corporation Act” (id. (citing Real, 112 Ill. App. 3d at 436)), the

court concluded that the defendant was “not licensed and does not qualify to be licensed as a

medical corporation under that statute” (id. at 82-83). Plaintiff also relies on a line from Real,

stating that a “corporation formed to practice medicine must be licensed by the State.” Real, 112

Ill. App. 3d at 436. We follow the holdings in Solich and Real that the statute of repose only

covers medical corporations who are “duly licensed” and are properly incorporated as a medical

corporation. However, neither Solich nor Real define or reason how a medical corporation is

“duly licensed.”

¶ 25 Our supreme court’s decision in Chatham is instructive on this issue. In Chatham,

the court held that the terms “license” and “certificate of registration,” as used in the Professional

Service Corporation Act (805 ILCS 10/1 et seq. (West 2000)), are not “functionally equivalent.”

Chatham, 216 Ill. 2d at 398. There, the other statute at issue was the Podiatric Medical Practice

Act of 1987 (Podiatric Medical Practice Act) (225 ILCS 100/1 et seq. (West 2000)).

¶ 26 Plaintiff argues that because the statutes in the current case are different, Chatham

is inapplicable. We disagree due to the overwhelming similarities between the statutes in

Chatham and the statutes in the case before us. The court in Chatham analyzed provisions of the

-8- Podiatric Medical Practice Act and found that it contained a licensing structure for practitioners

and was enacted for the public health, safety, and welfare, whereas the Professional Service

Corporation Act was enacted to allow professionals to join together and incorporate. The

provisions of the Professional Service Corporation Act the court examined are similar to the

Medical Corporation Act before us now. For example, section 12 of the Professional Service

Corporation Act (805 ILCS 10/12 (West 2018)) and section 5 of the Medical Corporation Act

(805 ILCS 15/5 (West 2018)) both govern “certificates of registration” and are nearly identical,

as are section 13 of the Professional Service Corporation Act (805 ILCS 10/13 (West 2018)) and

section 10 of the Medical Corporation Act (805 ILCS 15/10 (West 2018)), which concern the

suspension or revocation of certificates of registration. Because of these striking similarities and

others, we find the reasoning in Chatham persuasive and informative.

¶ 27 In Chatham, the issue was whether a contract was void because the plaintiff failed

to obtain a certificate of registration from the Department, as required by the Professional

Service Corporation Act. The court began its analysis with the principle that “courts will not

enforce a contract involving a party who does not have a license called for by legislation that

expressly prohibits the carrying on of the particular activity without a license where the

legislation was enacted for the protection of the public, not as a revenue measure.” (Internal

quotation marks omitted.) Chatham, 216 Ill. 2d at 381. Therefore, the court stated the question

presented was “whether the [Professional Service Corporation Act’s] certificate of registration

requirement is an administrative mechanism by which professionals may provide their services

in the corporate form, or whether it is a regulatory provision intended to protect the health, safety

and welfare of the public.” Id. at 382. In other words, similar to the issue in the case before us,

-9- the Chatham court considered whether the certificate of registration required by the Professional

Service Corporation Act was a license.

¶ 28 When reviewing the Professional Service Corporation Act’s certificate

requirement, the Chatham court stated:

“Upon reviewing the relevant provisions of the Podiatric Medical Practice

Act and the [Professional Service Corporation Act], we agree with plaintiff that

the requirement imposed by section 12 of the [Professional Service Corporation

Act] on professional service corporations to obtain a certificate of registration was

not enacted as a regulatory measure to protect the public health, safety and

welfare. We hold that the appellate court erred in concluding that the terms

‘license’ and ‘certificate of registration’ are synonymous, as nothing in the

relevant statutory provisions supports the appellate court’s interpretation that a

‘license’ and a ‘certificate of registration’ are functionally equivalent.” Chatham,

216 Ill. 2d at 389.

¶ 29 The court analyzed the statutory prerequisites for a certificate of registration

under the Professional Service Corporation Act and a license under the Podiatric Medical

Practice Act. It found the prerequisites for a license are more rigorous and require the applicant

to “prove competency in that profession.” Id. at 392. In contrast, obtaining a certificate of

registration is simpler, requiring only an application and a $50 registration fee; it requires no

professional training or examination. Id. The Professional Service Corporation Act requires that

individuals seeking to incorporate must be licensed. Id. at 392-93. This is similar to the Medical

Corporation Act’s requirements for incorporation. See 805 ILCS 15/2 (West 2018). The court

reasoned:

- 10 - “In other words, the [Professional Service Corporation Act] provides that an

individual or group of individuals, who are currently ‘licensed as individuals to

engage in the profession,’ may form a professional service corporation through

which they may provide their services to the public. There is no need for the

legislature to require that the individuals forming the professional service

corporation be licensed as a prerequisite to that corporation obtaining a certificate

of registration unless a license and a certificate of registration are two separate

concepts which serve two distinct purposes.” (Emphases in original.) Chatham,

216 Ill. 2d at 393.

¶ 30 Furthermore, the court rejected language in the Professional Service Corporation

Act stating that “license” and “certificate of registration” were synonymous. Section 3.3 of the

Professional Service Corporation Act defines “license” as including a “certificate of

registration.” 805 ILCS 10/3.3 (West 2000). The Chatham court rejected this explicit language

and reasoned:

“Section 3.3 of the [Professional Service Corporation Act] defines ‘license’ as ‘a

license, certificate of registration or any other evidence’ that establishes ‘the

satisfaction of the requirements of this State *** for the practice of a professional

service.’ *** 805 ILCS 10/3.3 (West 2000). Thus, pursuant to the plain language

of section 3.3, anything deemed evidence of satisfying the state requirements to

lawfully practice a profession falls within the definition of a ‘license.’ It logically

follows, therefore, that anything called a ‘certificate of registration’ which does

not demonstrate the satisfaction of state requirements to practice a profession is

- 11 - not a ‘license’ under the [Professional Service Corporation Act].” (Emphases

omitted.) Chatham, 216 Ill. 2d at 393-94.

This line of reasoning further supports the court’s holding that whether the terms “license” and

“certificate of registration” are interchangeable depends on if they are “functionally equivalent.”

¶ 31 The court also analyzed the statutory provisions of the Professional Service

Corporation Act that require the incorporators to be licensed and keep up their licenses. Id. at

394-95. The court concluded that the Professional Service Corporation Act does not “assure

professionalism and competence in the practice of podiatry. Rather, the [Professional Service

Corporation Act] provisions underscore that the professional service corporation is simply the

vehicle by which the General Assembly allows licensed individuals to practice their profession

in the corporate form, and thereby reap the benefits of incorporation.” Id. at 396.

¶ 32 The court additionally relied on the fact that there were no civil or criminal

penalties in the Professional Service Corporation Act associated with noncompliance with the

“certificate of registration” requirement, other than simple fees. The court reasoned that larger

penalties “would indicate that the provision was enacted because it had a significant impact on

the public welfare.” Id. at 397 (citing Riggs v. Woman to Woman, Obstetrics & Gynecology,

P.C., 351 Ill. App. 3d 268, 272 (2004)). Similarly, section 13.5 of the Medical Corporation Act

states:

“Whenever the Department has reason to believe a corporation has opened, operated, or

maintained an establishment for any of the purposes for which a corporation may be

organized under this Act without a certificate of registration from the Department, the

Department may issue a notice of violation to the corporation.” 805 ILCS 15/13.5 (West

2018).

- 12 - The notice provides 30 days to either provide an answer or file an application to comply, along

with a $50 fee and $100 for each year the corporation operated without the certificate. Id. If the

corporation fails to do this, the Department “may institute disciplinary proceedings against the

corporation and may impose a civil penalty up to $1,000.” Id. Thus, like the Professional Service

Corporation Act, the lack of serious penalties indicates that the Medical Corporation Act was not

intended to protect the public welfare.

¶ 33 Further supporting its decision, the Chatham court cited Ford Motor Credit Co. v.

Sperry, 214 Ill. 2d 371 (2005). In Ford Motor, our supreme court explained that there is a

“fundamental difference between an unlicensed individual representing a party in

legal proceedings or performing activities traditionally considered to be the

‘practice of law’ and duly licensed attorneys who happen to belong to a law firm

that has not filed its registration and paid its fees pursuant to [Illinois Supreme

Court] Rule 721(c) [(eff. July 1, 2003)]. The material inquiry in assessing whether

there has been an unauthorized practice of law is whether the individual who acts

on behalf of a client is duly licensed by this court, as it is only individuals—and

not corporations—who are granted the privilege to practice law.” Id. at 387.

The court in Ford Motor reasoned that the public faced a risk of harm from unlicensed

individuals engaging in the practice of law and that an unregistered law firm did not pose a risk

of harm to the public, but, rather, harmed itself. Id. at 387-88. We find the reasoning of both the

Chatham and Ford Motor courts applicable to the interplay between the Medical Practice Act

and the Medical Corporation Act.

¶ 34 3. The Legislative Structure of the Medical Practice Act

and Medical Corporation Act

- 13 - ¶ 35 The practice of medicine is governed by the Medical Practice Act, similar to how

the practice of podiatry is governed by the Podiatric Medical Practice Act. The Medical Practice

Act, not the Medical Corporation Act, sets forth the requirements to be licensed to practice. To

apply for a license under the Medical Practice Act, an individual must submit an application,

along with satisfactory evidence of “good moral character,” “preliminary and professional

education required by [the Medical Practice Act],” and physical, mental, and professional

capability of “practicing medicine with reasonable judgment, skill, and safety.” 225 ILCS 60/9

(West 2018). In determining professional capacity, the medical board may consider the following

criteria:

“(1) Medical research in an established research facility, hospital, college or

university, or private corporation.

(2) Specialized training or education.

(3) Publication of original work in learned, medical, or scientific journals.

(4) Participation in federal, State, local, or international public health

programs or organizations.

(5) Professional service in a federal veterans or military institution.

(6) Any other professional activities deemed to maintain and enhance the

clinical capabilities of the applicant.” Id.

¶ 36 Conversely, to apply for a certificate of registration under the Medical

Corporation Act, incorporators (licensed under the Medical Practice Act) need only submit an

application and pay a registration fee. There is a difference in the purpose of a “license” and a

“certificate of registration.” Similar to the Podiatric Medical Practice Act, a “license” under the

Medical Practice Act is a substantive and regulatory check intended to (1) ensure that an

- 14 - individual is qualified to practice and (2) protect the public health, safety, and welfare. On the

other hand, a “certificate of registration” as required by the Medical Corporation Act and the

Professional Service Corporation Act is part of an administrative process by which individuals

can benefit from the corporate form and the state can raise revenue. The Medical Corporation

Act’s various provisions require that incorporators, officers, directors, shareholders, and

employees be licensed to practice, not the corporation. See 805 ILCS 15/5, 13 (West 2018). Like

the Professional Service Corporation Act, the legislative scheme of the Medical Corporation Act

demonstrates that it was intended to allow one or more individuals who are licensed under the

Medical Practice Act to perform the same professional or related services together and form a

corporation through which they can render such services to the public.

¶ 37 Also supporting our decision are the penalties for violations of the Medical

Practice Act and the Medical Corporation Act. Under the Medical Corporation Act, a “certificate

of registration” can be suspended or revoked for any of the following reasons:

“(a) the revocation or suspension of the license to practice medicine of any

officer, director, shareholder or employee not promptly removed or discharged by

the corporation; (b) unethical professional conduct on the part of any officer,

director, shareholder or employee not promptly removed or discharged by the

corporation; (c) the death of the last remaining shareholder; or (d) upon finding

that the holder of a certificate has failed to comply with the provisions of this Act

or the regulations prescribed by the Department.” Id. § 10.

It is telling that each subpart pertains to conduct by an individual, not the corporation itself.

Moreover, as discussed earlier in this decision, the financial penalties contained in the Medical

Corporation Act are minor. See id. §§ 6.1, 13.5. Contrast this with the penalties contained in the

- 15 - Medical Practice Act. Section 22 states that the Department “may revoke, suspend, place on

probation, reprimand, refuse to issue or renew, or take any other disciplinary or non-disciplinary

action as the Department may deem proper with regard to the license or permit of any person

issued under this Act, including imposing fines not to exceed $10,000.” 225 ILCS 60/22(A)

(West 2018). Violations under this section include various criminal offenses, gross negligence,

fraud, habitual or excessive drug use, practice under a false name, and the falsification of

records. Id. It is clear that violations committed by an individual under the Medical Practice Act

are more severe than those committed by a corporation under the Medical Corporation Act.

¶ 38 In sum, based on a review of case law and the statutory language, the terms

“license” and “certificate of registration” are not functionally equivalent as used in the Medical

Practice Act and Medical Corporation Act. Therefore, obtaining a “certificate of registration”

does not make a medical corporation “duly licensed,” as required by the statute of repose.

Likewise, failure to obtain a certificate does not mean a medical corporation lacks a license.

¶ 39 4. Application to This Case

¶ 40 This leaves us in a difficult position where (a) a medical corporation is covered by

the statute of repose, (b) the legislative intent of the General Assembly clearly indicates that the

statute of repose applies only to entities “duly licensed,” and (c) the Medical Corporation Act

does not require medical corporations to be licensed and therefore a medical corporation is

essentially either never “duly licensed” or always “duly licensed.” This is an absurd and illogical

outcome, which we are to avoid. As we stated earlier, in construing a statute, we presume that

the General Assembly did not intend absurdity, inconvenience, or injustice. Chatham, 216 Ill. 2d

at 382. It would certainly be an absurd and unjust result if a practitioner must be licensed in order

to benefit from the statute of repose, but a medical corporation may benefit indeterminately. It

- 16 - would also be absurd and against the intent of the Generally Assembly for a medical corporation

to never benefit from the protections of the statute of repose.

¶ 41 After a thorough review of the statutory language of the statute of repose, the

legislative scheme laid out by the Medical Corporation Act and Medical Practice Act, and the

case law examined above, it is clear that licensure to conduct the actual practice of medicine

rests on the individuals in a medical corporation. And, as the statute of repose covers actions for

damages “arising out of patient care,” we hold that a medical corporation incorporated under the

Medical Corporation Act is “duly licensed” if the physician, dentist, registered nurse, or other

practitioner or officer from whose conduct the claim arises out of is properly licensed under the

Medical Practice Act.

¶ 42 In this case, the trial court found that Dr. Ogunleye was “duly licensed” under

Illinois law and that the statute of repose applied to him. Plaintiff did not appeal that outcome.

Therefore, as the claims arise out of patient care provided by Dr. Ogunleye, an employee of

AWH who was properly licensed under Illinois law, AWH is likewise “duly licensed” and

protected by the statute of repose.

¶ 43 Plaintiff argues that the questions surrounding AWH’s registration status should

create a genuine issue of material fact. A material fact is one that, under the applicable law, could

affect the outcome of the case. Stivers v. Bean, 2014 IL App (4th) 130255, ¶ 21. Due to our

holding in this case, a medical corporation’s registration status has no bearing on its status as a

“duly licensed” corporation. Therefore, it is not a material fact.

¶ 44 B. Claims Arising Out of Patient Care

¶ 45 Plaintiff’s second contention is that AWH’s failure to inform the deceased of her

diagnosis was not a medical malpractice claim, but rather an institutional negligence claim. As

- 17 - such, the statute of repose for medical malpractice claims would not apply and we should reverse

the trial court’s decision.

¶ 46 Again, the statute of repose at issue in this case states that:

“[N]o action for damages for injury or death against any physician *** or hospital

duly licensed *** 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 *** of the existence of the injury or death for which damages are sought in

the action, whichever *** occurs first, but in no event shall such action be brought

more than 4 years after the date on which occurred the act *** alleged in such

action to have been the cause of such injury or death.” (Emphasis added.) 735

ILCS 5/13-212 (West 2018).

¶ 47 Thus, plaintiff’s arguments that the claims in this case are not medical malpractice

claims is irrelevant to the analysis; in order to enjoy the protections of the statute, the conduct

must “arise out of patient care.” Plaintiff also argues the conduct in this case does not “arise out

of patient care.” Instead, he characterizes it as institutional miscommunication. Defendant argues

the conduct did “arise out of patient care” and falls under the purview of the statute. Courts have

held that the phrase “arising out of patient care” has a broad meaning. Orlak v. Loyola University

Health System, 228 Ill. 2d 1, 14 (2007) (“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.

- 18 - ¶ 48 In Orlak, our supreme court addressed a similar set of facts. There, the plaintiff

filed a complaint against Loyola University Health System, alleging it was negligent for not

contacting her about the possibility that she contracted hepatitis C from a blood transfusion. Id.

at 4. The hospital filed a motion to dismiss under the statute of repose, stating her complaint was

time barred. The motion was granted by the trial court, and on appeal, the appellate court

affirmed the trial court’s holding. Id. The supreme court agreed, stating, “Only claims ‘arising

out of patient care’ are affected by the medical malpractice statute of repose.” Id. at 8. In order

for an injury to “arise out of patient care,” there must simply be a causal connection between the

patient’s medical care and the alleged injury. Id. at 16. The court in Orlak concluded that,

although the failure to notify the plaintiff was not medical care, the duty to notify her flowed

directly from the blood transfusion that was given in the course of treating her for burns. Id. The

injury and the medical care were, therefore, causally connected, and her claims arose out of

patient care. Id. at 17.

¶ 49 Similarly, then, plaintiff’s claim here also arises out of patient care. Whorrall

underwent surgery performed by Dr. Ogunleye at AWH. A report from that surgery included a

diagnosis of “left ovarian tumor with features suggestive of possible sex cord tumor with annular

tubules.” The case was referred to Mayo Clinic for a second opinion, which confirmed “mixed

granulosa cell tumor and sex cord stromal tumor with annular tubules.” Plaintiff alleges AWH

failed to inform Whorrall of these results, which resulted in an injury. So, just as in Orlak, her

injury was causally connected to the medical care she received, and her claim therefore “arose

out of patient care.”

¶ 50 Plaintiff’s attempts to characterize the claims in this case as “institutional

negligence” fail. Plaintiff argues two propositions: (1) that institutions may be held negligent in

- 19 - their own capacity and not merely under a respondeat superior theory and (2) that institutional

negligence is not medical malpractice. We need not address either of these arguments, as the

only issue is whether the conduct alleged of AWH “arose out of patient care,” and we conclude

that it did.

¶ 51 III. CONCLUSION

¶ 52 In conclusion, we affirm the trial court’s judgment. The statute of repose bars

plaintiff’s claims against AWH, as the claims arise out of patient care and AWH was duly

licensed as required by the statute of repose.

¶ 53 Affirmed.

- 20 - Hamblin v. Ogunleye, 2024 IL App (4th) 240645

Decision Under Review: Appeal from the Circuit Court of McLean County, No. 22-LA- 151; the Hon. Don Knapp, Judge, presiding.

Attorneys Chase T. Molchin, of Ginzkey & Molchin, LLC, of for Bloomington, for appellant. Appellant:

Attorneys Jonathan J. Bobell and Margaret M. Rhoades, of Livingston, for Barger, Brandt & Schroeder, LLP, of Bloomington, for Appellee: appellees.

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