Kaufmann v. Jersey Community Hospital

Opinion

NO. 4-08-0909 Filed 12/8/09

IN THE APPELLATE COURT

OF ILLINOIS

FOURTH DISTRICT

KRISTEN KAUFMANN, ) Appeal from Plaintiff-Appellant, ) Circuit Court of v. ) Jersey County JERSEY COMMUNITY HOSPITAL, a Municipal ) No. 07L37 Corporation, ) Defendant-Appellee, ) and ) Honorable ROGER A. SCHROEDER, M.D., ) Lois A. Bell, Defendant. ) Judge Presiding. _________________________________________________________________

JUSTICE POPE delivered the opinion of the court:

In July 2008, the trial court dismissed counts IV

through X of plaintiff Kristen Kaufmann's first amended complaint

because plaintiff failed to comply with the applicable one-year

statute of limitations under section 8-101(a) of the Local Gov-

ernmental and Governmental Employees Tort Immunity Act (Tort

Immunity Act) (745 ILCS 10/8-101(a) (West 2006)). Those seven

counts were directed at defendant Jersey Community Hospital

(Jersey Hospital). Plaintiff filed motions to reconsider in

August 2008 and November 2008, which the court denied. In Novem-

ber 2008, the court entered an order pursuant to Illinois Supreme

Court Rule 304(a) (210 Ill. 2d R. 304(a)), finding no just reason

to delay the appeal of its decision to dismiss those seven

counts. Plaintiff appeals, arguing the two-year statute of

limitations under section 8-101(b) of the Tort Immunity Act (745

ILCS 10/8-101(b) (West 2006)) should have applied. We affirm. I. BACKGROUND

In December 2007, plaintiff filed a two-count complaint

against Roger A. Schroeder, M.D., and Jersey Hospital. In June

2008, plaintiff filed her first amended complaint in this case.

Plaintiff alleged the following. Schroeder had been her

obstetrician-gynecologist since 2004. In January 2006, plaintiff

was hospitalized at Jersey Hospital with a urinary tract infec-

tion. While there, Schroeder sedated her during an unnecessary

exam that did not require sedation. While plaintiff was sedated,

Schroeder committed a "deviant act of sex" upon plaintiff. While

the information was not contained in the record, plaintiff's

counsel stated during oral argument that plaintiff found

Schroeder licking her breast when she awoke from her sedation.

Defense counsel did not object to this information being dis-

closed.

Based on information and belief, plaintiff alleged no

other physicians, nurses, or other hospital agents or employees

were present when this occurred. In addition, based on informa-

tion and belief, plaintiff alleged Schroeder had committed "devi-

ous acts of sex" upon former patients and that Jersey Hospital

had knowledge of this.

Plaintiff alleged the Illinois State Police (ISP),

which was investigating Schroeder's alleged criminal activity,

requested her not to file a civil suit against Schroeder and

Jersey Hospital until certain evidence had been collected.

Plaintiff alleged she complied with ISP's request and waited to

- 2 - consult a lawyer or file a civil suit against Schroeder or Jersey

Hospital. She filed her civil suit in December 2007.

Counts I through III of the amended complaint were

directed at Schroeder, alleging, respectively, battery, inten-

tional infliction of emotional distress, and negligence. Counts

IV through X were directed at Jersey Hospital, alleging, respec-

tively, negligent hiring, negligent retention, negligent supervi-

sion, negligence (willful and wanton), intentional infliction of

emotional distress, negligent infliction of emotional distress,

and vicarious liability. Plaintiff did not allege any specific

physical injuries. In the count alleging battery, plaintiff

alleges Schroeder's devious acts of sex were "harmful and offen-

sive contact." However, she does not allege Schroeder's devious

act of sex caused any actual physical injury. She did allege she

suffered severe and extreme emotional distress.

In July 2008, the hospital filed a motion to dismiss

plaintiff's first amended complaint pursuant to sections 2-615

and 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2-

615, 2-619 (West 2006)). That same month, the trial court dis-

missed counts IV through X. Plaintiff filed two motions to

reconsider, which were both denied.

This appeal followed.

II. ANALYSIS

On appeal, plaintiff argues the trial court erred in

failing to find the applicable statute of limitations was two

years pursuant to section 8-101(b) of the Tort Immunity Act (745

- 3 - ILCS 10/8-101(b) (West 2006)) instead of one year pursuant to

section 8-101(a) of the Tort Immunity Act (745 ILCS 10/8-101(a)

(West 2006)) because plaintiff's injuries arose out of patient

care. In the alternative, plaintiff argues if this court finds

the one-year period to be applicable, the statute of limitations

should have been equitably tolled because she was requested by

ISP not to file a civil claim until it had finished gathering

evidence.

A. Statute of Limitations

Section 8-101 of the Tort Immunity Act (745 ILCS 10/8-

101 (West 2006)) states:

"(a) No civil action other than an ac-

tion described in subsection (b) may be com-

menced 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.

(b) No action for damages for injury or

death against any local public entity or pub-

lic 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 dili-

gence should have known, or received notice

- 4 - 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 oc-

currence alleged in the action to have been

the cause of the injury or death." (Emphases

added.)

Our decision in this case rests on whether the General

Assembly meant for injuries arising from a deviant sex act com-

mitted by a doctor at a hospital to be injuries "arising out of

patient care" pursuant to section 8-101(b) of the Tort Immunity

Act (745 ILCS 10/8-101(b) (West 2006)). The legislature's intent

is best determined from the plain language of the statute. Orlak

v. Loyola University Health System, 228 Ill. 2d 1, 8, 885 N.E.2d

999, 1004 (2007). When a term is not defined by a statute, it is

to be given its plain and ordinary meaning. Orlak, 228 Ill. 2d

at 8, 885 N.E.2d at 1004. Neither section 8-101 of the Tort

Immunity Act (745 ILCS 10/8-101 (West 2006)) nor section 13-212

of the Code of Civil Procedure (Code) (735 ILCS 5/13-212 (West

2006)), which also contains the same language, defines the phrase

"arising out of patient care." In determining the plain meaning

of a statute's terms, we consider the statute in its entirety,

keeping in mind the subject it addresses, and the apparent intent

of the legislature in enacting the statute. Orlak, 228 Ill. 2d

- 5 - at 8, 885 N.E.2d at 1004.

According to plaintiff, her injuries arose from the

patient care she received at Jersey Hospital. The parties did

not cite, and this court did not find, any cases specifically

dealing with section 8-101(b) of the Tort Immunity Act (745 ILCS

10/8-101(b) (West 2006)). As a result, this is a case of first

impression with regard to section 8-101(b).

Plaintiff argues we should be guided by cases

interpreting section 13-212 of the Code (735 ILCS 5/13-212 (West

2006)), which concerns the statute of limitations for claims

involving physicians or hospitals and includes language similar

to the language of section 8-101(b) of the Tort Immunity Act (745

ILCS 10/8-101(b) (West 2006)). Section 13-212 of the Code states

in part:

"(a) Except as provided in [s]ection 13-

215 of this Act, no action for damages for

injury or death against any physician, den-

tist, registered nurse[,] or hospital duly

licensed under the laws of this State,

whether based upon tort, or breach of con-

tract, 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

- 6 - death for which damages are sought in the

action, whichever of such dates 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.

(b) Except as provided in [s]ection 13-

care shall be brought more than 8 years after

the date on which occurred the act or omis-

sion 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 ***." (Emphases

added.) 735 ILCS 5/13-212(a), (b) (West

2006).

In 2007, the Supreme Court of Illinois issued two

opinions interpreting the "arising out of patient care" language

found in section 13-212 of the Code (735 ILCS 5/13-212 (West

- 7 - 2006)). See Brucker v. Mercola, 227 Ill. 2d 502, 886 N.E.2d 306

(2007); Orlak, 228 Ill. 2d 1, 885 N.E.2d 999. We conclude the

supreme court would apply the language of section 8-101(b) of the

Tort Immunity Act (745 ILCS 10/8-101(b) (West 2006)) in the same

manner it applied the language of section 13-212 of the Code (735

ILCS 5/13-212 (West 2006)) in Brucker and Orlak, considering the

statutes contain nearly identical language. As a result, we use

the same analysis in this case as the supreme court used in

Brucker and Orlak to determine whether section 8-101(a) or (b) of

the Tort Immunity Act (745 ILCS 10/8-101(a), (b) (West 2006)) is

applicable to plaintiff's claim.

In Brucker, Anna Brucker went to Dr. Mercola's office

for an allergy consultation. In deposition testimony, Mercola

said he was "closer to a nutritionist than an internist or family

practitioner." Brucker, 227 Ill. 2d at 506, 886 N.E.2d at 308.

According to the supreme court's opinion, Dr. Mercola's

"practice involved using nutrition and nutritional supplements to

correct chronic diseases, and he prescribed traditional medicine

only sparingly." Brucker, 227 Ill. 2d at 506, 886 N.E.2d at 308.

Dr. Mercola sold many of the supplements that he prescribed as a

service for his patients because insurance usually did not cover

the cost of the supplements. Brucker, 227 Ill. 2d at 506, 886

N.E.2d at 308. Mercola sold them to his patients for signifi-

cantly less than they could purchase the supplements at health-

food stores. Brucker, 227 Ill. 2d at 506, 886 N.E.2d at 308-09.

Initially, Mercola's office ordered L-glutamine, a supplement, in

- 8 - prepackaged capsule form, but Dr. Mercola's office later ordered

it in bulk form as a way for patients to save money. Brucker,

227 Ill. 2d at 506, 886 N.E.2d at 309. According to the opinion:

"At the relevant time, Barbara Pierce, a re-

ceptionist with no medical training, was in

charge of measuring and bottling the bulk

supplements into individual bottles. How-

ever, Dr. Mercola testified in his deposition

that he took ultimate responsibility for en-

suring that the supplement bottles were fill-

ed correctly. Dr. Mercola further explained

in his deposition that, although he would

sell the supplements to a member of the gen-

eral public who requested them, he was not a

general retailer of supplements." Brucker,

227 Ill. 2d at 506, 886 N.E.2d at 309.

In fact, Mercola testified in a deposition that 99.5% of his

supplement sales were to his own patients. Brucker, 227 Ill. 2d

at 506-07, 886 N.E.2d at 309.

Mercola diagnosed Anna Brucker as suffering from a

toxic reaction to an overgrowth of candida in her body. Brucker,

227 Ill. 2d at 507, 886 N.E.2d at 309. He prescribed her L-

glutamine, an amino acid, to help repair her colon and intestinal

lining. Brucker, 227 Ill. 2d at 507, 886 N.E.2d at 309.

"At the time of the diagnosis, his office was

out of stock of that particular supplement.

- 9 - He did not, however, advise Anna to purchase

it elsewhere. Instead, he sold her what was

supposed to be L-glutamine at her next office

visit on May 25, 1995. In the meantime,

Pierce had accidentally filled some of the L-

glutamine bottles with selenium because an

unmarked package of selenium had been left in

the storage closet where the bulk L-glutamine

was typically stored." Brucker, 227 Ill. 2d

at 507, 886 N.E.2d at 309.

Anna purchased one of these bottles and became violently ill

after taking the supplement. Brucker, 227 Ill. 2d at 507, 886

N.E.2d at 309. By following the directions for the L-glutamine,

Anna took a dosage of selenium over 20,000 times the safe dosage

level for that substance. Brucker, 227 Ill. 2d at 507, 886

N.E.2d at 309.

In count I of the Bruckers' amended complaint, Anna

sought damages for her own injuries. In count II, John Brucker

sought damages for loss of consortium. Count III was brought on

behalf of Robert Grant Brucker, a minor, with whom Anna was

pregnant when she ingested the selenium. Brucker, 227 Ill. 2d at

505, 886 N.E.2d at 308. Count III alleged Robert had been poi-

soned in utero when his mother ingested the selenium powder.

Brucker, 227 Ill. 2d at 507, 886 N.E.2d at 309.

The defendants moved to dismiss count III as barred by

the applicable statute of repose found in section 13-212(b) of

- 10 - the Code (735 ILCS 5/13-212(b) (West 2006)). Brucker, 227 Ill.

2d at 508, 886 N.E.2d at 310. In granting the motion to dismiss,

the trial court:

"explained that the phrase 'arising out of

patient care' had been construed broadly and

that plaintiffs' claim on behalf of Robert

alleged an injury arising out of patient

care. Further, the court determined that the

repose period of section 13-212(b) had not

been tolled." Brucker, 227 Ill. 2d at 511,

886 N.E.2d at 311.

Plaintiffs filed a second amended complaint specifi-

cally alleging Robert's legal disability at the time of Anna's

poisoning. Brucker, 227 Ill. 2d at 511, 886 N.E.2d at 311-12.

Defendants again moved to dismiss count III, and the trial court

again dismissed the count on the same grounds. Brucker, 227 Ill.

2d at 511-12, 886 N.E.2d at 312. The First District Appellate

Court affirmed the trial court. Brucker, 227 Ill. 2d at 512, 886

N.E.2d at 312. Our supreme court then allowed plaintiff's peti-

tion for leave to appeal. Brucker, 227 Ill. 2d at 513, 886

N.E.2d at 312.

In its decision in Brucker, our supreme court made

clear certain points in interpreting the applicability of section

13-212(b) of the Code (735 ILCS 5/13-212(b) (West 2006)). First,

the court noted "the relevant question in determining whether

section 13-212 provides the applicable limitations period is not

- 11 - whether the complaint alleges medical malpractice, but whether

the complaint alleges an injury arising out of patient care."

(Emphasis added.) Brucker, 227 Ill. 2d at 516, 886 N.E.2d at

314.

Second, the supreme court construed the language "aris-

ing out of patient care" as simply "requiring a causal connection

between the patient's medical care and the injury." (Emphasis

added.) Brucker, 227 Ill. 2d at 523, 886 N.E.2d at 318. Accord-

ing to the court, the language "clearly covers any injuries that

have their origin in, or are incidental to, a patient's medical

care and treatment." Brucker, 227 Ill. 2d at 523-24, 886 N.E.2d

at 318-19.

Third, the supreme court noted the term "patient care"

encompasses "the entire scope of a person's medical care and

treatment." Brucker, 227 Ill. 2d at 524, 886 N.E.2d at 319.

Fourth, the supreme court explicitly rejected a "but

for" causation analysis. Brucker, 227 Ill. 2d at 533-34, 886

N.E.2d at 324. Thus, although the language "injuries arising

from patient care" encompasses more situations than just medical

malpractice, not all injuries occurring at a hospital or other

treatment facility arise from patient care. According to the

court:

"When the only connection between the treat-

ment and the injury is that the patient would

not have been at a place where an injury oc-

curred but for his treatment or that the

- 12 - treatment placed the plaintiff in a position

where he was injured by a neutral force, the

injury does not arise out of patient care."

Brucker, 227 Ill. 2d at 534, 886 N.E.2d at

324.

Based on the allegations in plaintiff's complaint, the

supreme court concluded:

"Here, there is no question that plain-

tiffs' complaint alleged an injury arising

out of patient care. The complaint alleged

that Anna was Dr. Mercola's patient and that

Dr. Mercola prescribed L-glutamine for Anna

but dispensed selenium to her instead. The

complaint further alleged that Anna and her

fetus, Robert, were poisoned when she in-

gested the selenium. Anna's and Robert's

injuries were caused by the care and treat-

ment provided to Anna by defendants. More-

over, it would be preposterous to argue that

this was simply a case of 'but for' causa-

tion. 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 condi-

- 13 - tion that Dr. Mercola had diagnosed." Bruck-

er, 227 Ill. 2d at 524-25, 886 N.E.2d at 319.

In Brucker, the injury arose from her patient care. Dr. Mercola

prescribed L-glutamine but mistakenly sold her a bottle marked L-

glutamine that contained selenium. Dr. Mercola's act of pre-

scribing the L-glutamine and selling what he thought was L-

glutamine to Anna Brucker was part of Anna Brucker's patient

care. Brucker, 227 Ill. 2d at 524, 886 N.E.2d at 319. As a

result, the alleged injury arose from patient care.

In deciding Brucker, the supreme court examined other

cases interpreting the "arising out of patient care" language

2006)). Brucker, 227 Ill. 2d at 518-23, 886 N.E.2d at 315-18,

examining Miller v. Tobin, 186 Ill. App. 3d 175, 542 N.E.2d 173

(1989); Walsh v. Barry-Harlem Corp., 272 Ill. App. 3d 418, 649

N.E.2d 614 (1995); Stiffler v. Lutheran Hospital, 965 F.2d 137

(7th Cir. 1992); and Cammon v. West Suburban Hospital Medical

Center, 301 Ill. App. 3d 939, 704 N.E.2d 731 (1998).

In the instant case, plaintiff relies on some of the

cases discussed in Brucker. See Miller, 186 Ill. App. 3d 175,

542 N.E.2d 173; Walsh, 272 Ill. App. 3d 418, 649 N.E.2d 614;

Stiffler, 965 F.2d 137. Plaintiff also relies on our supreme

court's decision in Orlak, 228 Ill. 2d 1, 885 N.E.2d 999. How-

ever, in each of those cases, the alleged injuries upon which the

claims were based resulted from or were caused by patient care or

- 14 - things incidental to patient care.

In Orlak, the plaintiff contracted hepatitis through a

blood transfusion. Orlak, 228 Ill. 2d at 4-5, 885 N.E.2d at

1001-02. Plaintiff sued the hospital for failing to notify her

of the need to be tested for hepatitis, which lulled her into the

false sense of security that the blood she received via the

transfusion was free of disease. Orlak, 228 Ill. 2d at 5-6, 885

N.E.2d at 1002. The court held since plaintiff's injury, upon

which her claim was based, arose from the patient care and treat-

ment she received, i.e., the blood transfusion, her cause of

action was barred by the statute of repose found in section 13-

212 of the Code (735 ILCS 5/13-212 (West 2006)). Orlak, 228 Ill.

2d at 16-17, 885 N.E.2d at 1008.

In Miller, the plaintiff alleged "that while he and his

wife were receiving marital counseling from defendant, defendant

revealed confidential information to plaintiff's wife that plain-

tiff had specifically asked defendant not to reveal." Miller,

186 Ill. App. 3d at 176, 542 N.E.2d at 173. The plaintiff argued

he was injured by the defendant's breach of an implied contract.

Miller, 186 Ill. App. 3d at 176, 542 N.E.2d at 173. The appel-

late court found the plaintiff's claim was barred by the statute

of limitations found in section 13-212 of the Code (735 ILCS

5/13-212 (West 2006)) because his injury arose out of his and his

wife's joint treatment. Miller, 186 Ill. App. 3d at 178, 542

N.E.2d at 174-75.

In Walsh, the plaintiff filed his first complaint in

- 15 - September 1992, alleging medical malpractice against the defen-

dants and another physician, Dr. Robert Levy. Walsh, 272 Ill.

App. 3d at 420, 649 N.E.2d at 615. "The plaintiff alleged that,

as a result of the defendants' and Levy's acts or omissions, he

suffered the loss of the lens of his right eye, damage requiring

additional surgery and impairment of the vision in his right

eye." Walsh, 272 Ill. App. 3d at 420, 649 N.E.2d at 615. In

April 1993, the trial court dismissed the plaintiff's first

complaint with prejudice. Walsh, 272 Ill. App. 3d at 420, 649

N.E.2d at 615. In September 1993, the plaintiff filed another

complaint, alleging the defendants violated the Consumer Fraud

and Deceptive Business Practices Act (Ill. Rev. Stat. 1989, ch.

121 1/2, par. 261 et seq.). Walsh, 272 Ill. App. 3d at 421, 649

N.E.2d at 615. The trial court also dismissed the September 1993

complaint with prejudice, finding the statute of limitations

found in section 13-212 of the Code barred the plaintiff's ac-

tion. Walsh, 272 Ill. App. 3d at 421-22, 649 N.E.2d at 616.

The plaintiff argued on appeal that his September 1993

complaint did not contain any allegations of "'injury or death

*** arising out of patient care.'" Walsh, 272 Ill. App. 3d at

422, 649 N.E.2d at 616. Instead, the plaintiff asserted "that

his allegations that the defendant intentionally misrepresented

test results and the need for surgery are allegations of fraud

that relate only to the commercial aspects of the eye-care busi-

ness." Walsh, 272 Ill. App. 3d at 422, 649 N.E.2d at 616.

In ruling against the plaintiff, the First District

- 16 - Appellate Court stated:

"[W]e believe the allegations of the

plaintiff's September 1993 complaint stated a

cause of action against a physician for an

'injury *** arising out of patient care.'

The plaintiff's complaint did contain allega-

tions that he was injured by the defendants'

acts: he incurred medical expenses for the

unnecessary surgery; he incurred additional

medical expenses to determine what was 'wrong

with his eyes following [the surgery]'; and

he suffered 'great mental distress and suf-

fering.'

The plaintiff argues that, because he

alleged no physical injury, the medical mal-

practice statute of limitations did not ap-

ply. We believe that the plaintiff's com-

plaint could be interpreted as alleging phys-

ical injury, but even if we were to conclude

that there was no allegation of physical in-

jury, this would not remove the plaintiff's

complaint from section 13-212. It is a well-

established principle of statutory construc-

tion that when a statute is 'clear and unam-

biguous a court is not at liberty to depart

from the plain language and meaning of the

- 17 - statute by reading into it exceptions, limi-

tations[,] or conditions that the legislature

did not express.' [Citation.] Contrary to

the plaintiff's argument, there is no re-

quirement in the plain language of section

13-212 that a plaintiff allege a physical

injury, and we refuse to infer such a limita-

tion.

We also believe that the plaintiff's

alleged injury arose out of patient care.

The plaintiff asserted in his September 1993

complaint that he went to the defendants

seeking advice regarding his eye condition.

The defendants then advised him to undergo

surgery, which they knew was unnecessary,

and, in fact, performed unnecessary surgery

on his eye." (Emphases in original.) Walsh,

272 Ill. App. 3d at 423, 649 N.E.2d at 616-

17.

According to the court, "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.

In Stiffler, the plaintiff brought a products-liability

suit against the defendant, Lutheran Hospital, alleging a pros-

thesis that had been medically implanted in her chest cavity

during a hernia operation was defective. Stiffler, 965 F.2d at

- 18 - 138. "[T]he prosthesis had broken away from its placement and

became tangled in her intestines, thereby causing her extreme

discomfort." Stiffler, 965 F.2d at 138. The trial court found

the plaintiff's claim was barred by the statute of repose found

in section 13-212 of the Code. Stiffler, 965 F.2d at 139. The

Seventh Circuit Court of Appeals agreed. According to the Sev-

enth Circuit:

"[The plaintiff argues] her injury did

not in fact arise 'out of patient care,' and

therefore [section] 13-212 cannot act as a

bar to her suit against the Hospital. To

support this proposition, she argues that her

injury resulted not from the Hospital's medi-

cal care, but rather from the Hospital's neg-

ligent choice and distribution of a defective

prosthetic device. That negligent act, she

maintains, was unrelated to her medical

treatment. We disagree.

The fatal flaw in this argument is that

the distinction between medical care and the

distribution of medical materials is not as

clearly delineated as Stiffler would have us

believe. Quite the contrary, medical materi-

als are so inextricably linked with every

step of today's treatment processes that

their use almost per se arises 'out of pa-

- 19 - tient care.'" Stiffler, 965 F.2d at 140.

It is clear the plaintiff's injury in Stiffler was incidental to

her surgery, which was part of her patient care.

Unlike the alleged injuries in Brucker and the other

cases cited by plaintiff, plaintiff's injuries were caused by the

alleged deviant sexual act of her physician. The parties did not

cite, and we did not find, any Illinois cases dealing with wheth-

er injuries resulting from a nonconsensual deviant sexual act

committed at a hospital by a patient's doctor "arise from patient

care." However, in Doe v. Cherwitz, 894 F. Supp. 344 (S.D. Iowa

1995), the plaintiff claimed the defendant physician, while

performing a physical examination on her in 1973, "forcibly had

sexual intercourse with her against her will." Cherwitz, 894 F.

Supp. at 345. The federal court in Cherwitz was faced with

interpreting an Iowa statute of limitations that provided actions

"for injuries to the person or wrongful death against any physi-

cian *** arising out of patient care" shall be brought "within

two years." Iowa Code Ann. §614.9.

Defendants Cherwitz and the Davenport Clinic argued

this statute of limitations barred plaintiff's claims. The

plaintiff argued her claims did not arise out of patient care and

thus the two-year statute of limitations (and six-year statute of

repose) did not apply to her claim. The court stated:

"I do not believe the Iowa Supreme Court ***

would hold if this case were presented to it,

that section 614.1(9) applies to willful non-

- 20 - treatment tortious activity by the physician,

simply because it occurred when the patient

was seeing the physician for medical reasons.

Obviously, that is not what the legislature

intended in enacting the statute, and its

careful choice of language--'arising from

patient care'--clearly limits the protection

of the statute to claims resulting from

patient[-]care activity. Rape is not

patient[-]care activity." (Emphasis in orig-

inal.) Cherwitz, 894 F. Supp. at 345-46.

Likewise, in Burke v. Snyder, 899 So. 2d 336, 337 (Fla.

App. 2005), the plaintiff sought damages against a doctor and the

treatment center where he worked, alleging the doctor committed a

sexual battery on her during a medical examination. The trial

court dismissed the complaint, finding Florida's medical-malprac-

tice statute applied to a claim against a health-care facility

and physician accused of sexual misconduct during a patient

examination. Burke, 899 So. 2d at 337. The appellate court in

Burke reversed the trial court, holding "that a claim of sexual

misconduct by a doctor during a medical examination or procedure

is not a claim 'arising out of the rendering of ... medical care

or services.' [Citation.]" Burke, 899 So. 2d at 340.

However, while Cherwitz and Burke are persuasive, we

are bound by our supreme court's decisions in Brucker and Mercol-

a. In reading those two decisions, we conclude reasonable minds

- 21 - could differ on whether section 8-101(a) or (b) (745 ILCS 10/8-

101(a), (b) (West 2006)) should apply to the case sub judice.

This is evidenced by the vigorous dissent in this case.

Our supreme court has interpreted the phrase "arising

out of patient care" broadly. Even though the court has rejected

"but for" causation, the court stated the following in making

that determination:

treatment placed the plaintiff in a position

According to the allegations in this case, it is quite clear (1)

plaintiff was injured by her doctor's actions while she was at

the hospital and (2) her doctor was definitely not a neutral

force.

However, we conclude neither our supreme court nor the

General Assembly intended for our analysis to end with a determi-

nation that Schroeder was not a neutral force. Instead, we must

ask from what actions did plaintiff's alleged injury arise. In

this case, plaintiff's alleged injuries arose from Schroeder's

act of licking her breast. The question then becomes whether

- 22 - Schroeder's act of licking plaintiff's breast was patient care.

We conclude it was not.

We can think of absolutely no medical reason why the

doctor needed or could have thought he needed to lick plaintiff's

breast as part of her general patient care while she was a pa-

tient at Jersey Hospital, being treated for a urinary tract

infection. The only reason for Schroeder to lick plaintiff's

breast was for his own sexual gratification. This act was of no

arguable benefit to plaintiff's health nor her patient care.

Schroeder's conduct was clearly separate and played no

part in the patient care plaintiff was receiving at Jersey Hospi-

tal. To find Schroeder'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.

The dissent states "[w]hen 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." Slip op. at 33. We disagree. The exact

cause of the patient's injuries is usually clear, i.e., the

alleged act constituting the assault, which in this case was

Schroeder licking plaintiff's breast.

Plaintiff's injuries arose from Schroeder's act of

sexual gratification, which was clearly separate from her patient

care. Plaintiff's hospitalization and treatment related to a

urinary tract infection. Plaintiff cites no relation between the

- 23 - injuries she suffered (battery and extreme emotional distress)

and her care and treatment for a urinary tract infection.

Plaintiff's injuries, on which her claim is based, did not arise

from her patient care. As a result, the legal theory under which

plaintiff pursued her claim against Jersey Hospital is irrele-

vant.

For plaintiff's claims against Jersey Hospital to come

within the limitations period of section 8-101(b) of the Tort

Immunity Act (745 ILCS 10/8-101(b) (West 2006)), plaintiff's

injury must have arisen out of patient care regardless of the

legal theory plaintiff used to pursue her claim. Schroeder's

alleged act of licking plaintiff's breast was clearly unrelated

to her patient care. Although her injuries were allegedly in-

flicted by a physician in a hospital, her injuries did not result

from her patient care, were completely unrelated to her patient

care, and were not incidental to her patient care. Without an

injury arising out of patient care, all of plaintiff's claims

against Jersey Hospital are untimely pursuant to the one-year

statute of limitations found in section 8-101(a) of the Tort

Immunity Act (745 ILCS 10/8-101(a) (West 2006)).

The dissent argues we should look to decisions in

workers' compensation cases to determine whether the alleged

sexual assault in this case arose from patient care. However,

even in workers' compensation cases, "sexual assaults that are

the result of motives personal to the assailant and unrelated to

the employment do not arise out of the employment and are not

- 24 - compensable." 82 Am. Jur. 2d Workers' Compensation §347, 324-25

(2003). Even if we applied the same reasoning found in workers'

compensation cases, Schroeder's motives in allegedly licking

plaintiff's breast could not have been related to her patient

care.

For the sake of clarity, we are not holding Jersey

Hospital is immune from liability simply because it is a public

entity. We are only holding plaintiff's claims against Jersey

Hospital are barred by the one-year statute of limitations found

in section 8-101(a) of the Tort Immunity Act (745 ILCS 10/8-

101(a) (West 2006)).

B. Equitable Tolling

In the alternative, plaintiff argues the one-year

statute of limitations pursuant to section 8-101(a) should have

been tolled because she was allegedly prevented from filing her

lawsuit by ISP, which allegedly asked her not to file a civil

suit while its criminal investigation was pending.

Equitable tolling may be appropriate if a plaintiff has

been prevented from asserting her rights in some extraordinary

way. Clay v. Kuhl, 189 Ill. 2d 603, 614, 727 N.E.2d 217, 223

(2000). "[E]quitable tolling, unlike equitable estoppel, applies

even when the defendant is faultless." Griffin v. Willoughby,

369 Ill. App. 3d 405, 416, 867 N.E.2d 1007, 1016 (2006), citing

Miller v. Runyon, 77 F.3d 189, 191 (7th Cir. 1996). This court

has stated:

"Where the plaintiff cannot reasonably be

- 25 - expected to sue in time because of disabil-

ity, irremediable lack of information, or

other circumstances beyond his control, the

statute of limitations will be tolled until

he is able through the exercise of proper

diligence to file his suit." Griffin, 369

Ill. App. 3d at 416, 867 N.E.2d at 1016.

Plaintiff in the case sub judice was not prevented in some ex-

traordinary way from filing her claim within the applicable

statute of limitations. She had no disability, lack of informa-

tion, or any circumstance beyond her control.

While we appreciate her desire to cooperate with a

pending ISP investigation, the record reflects Schroeder was

indicted in May 2006. Plaintiff alleges Schroeder assaulted her

in January 2006. Thus, she had more than six months to file her

claim against Jersey Hospital after Schroeder was indicted.

After Schroeder's indictment, plaintiff had no need to refrain

from filing her claim because at that point the investigation was

public knowledge. As a result, the statute of limitations cannot

be tolled.

III. CONCLUSION

For the reasons stated, we affirm the trial court's

judgment.

Affirmed.

TURNER, J., concurs.

MYERSCOUGH, P.J., dissents.

- 26 - 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 con-

strued 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 plaintiff's alleged injury arise."

Slip op. at 22. The majority's answer to that question is too

simplistic, "In this case, plaintiff's alleged injuries arose

from Schroeder's act of licking her breast." Slip op. at 22.

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 plaintiff's 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

- 27 - "mismanag[ing] 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), inten-

tional 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 IV through X on statute-of-limitations

grounds, the merit of these allegations is not at issue on ap-

peal.

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 unneces-

sary treatment implicates his or her judgment. See Walsh, 272

Ill. App. 3d at 425, 649 N.E.2d at 618 (the plaintiff’s addi-

tional 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

- 28 - and procedures. Cases interpreting section 13-212 of the Code

must apply to section 8-101(b) of the Tort Immunity Act. Plain-

tiff’s 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 'aris-

ing 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 seda-

tion, and even sexual assault may arise from patient care in

appropriately limited circumstances.

- 29 - 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 encom-

pass "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. Bruck-

er, 227 Ill. 2d at 536, 886 N.E.2d at 325.

At first blush, the instant case presents a straight-

forward 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, plain-

tiff's complaint claims not only battery (count I) but negligence

- 30 - 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 plain-

tiff’s condition, knew he would not benefit from certain treat-

ment (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, plaintiff's allega-

tions 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 asser-

tion 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 plaintiff's 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. Slip

op. at 24. 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

- 31 - is fraud: In Walsh, the doctors conferred no medical benefit upon

the plaintiff by performing unnecessary surgery. However, the

court rejected the plaintiff’s argument that the fraudulent

business aspects of the doctors’ conduct (intentional misrepre-

sentation 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. 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."

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.

- 32 - For example, a man is unnecessarily sedated for a prostate exami-

nation 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' Compensa-

tion Act grants an employee compensation for "any injury, dis-

ablement or death arising out of and in the course of his employ-

ment." (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' cau-

sation in the Workers' Compensation Act in

that it is not enough merely to show that the

- 33 - 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 neu-

tral (neither personal nor related to employ-

ment) 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 pa-

tient’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

- 34 - 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 leg-

islature intended 'arising out of' to have

the same meaning always assigned to it.

Moreover, in the workers’ compensation con-

text, this court has for years been constru-

ing 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 undergo-

ing 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

- 35 - 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. Indus-

trial 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 (re-

sultant 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

- 36 - 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

- 37 - 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 multi-

ply, brutally raped in the staff area of a hospital by two in-

truders 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

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.

- 38 - 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 dis-

ease, 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 con-

sidered to arise out of patient care.

The analysis from workers' compensation cases, then, is

most usefully applied to "neutral" risks--those neither dis-

tinctly 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 negli-

gence--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' compensa-

- 39 - tion 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 gen-

eral public is at risk to consume mislabeled nutritional supple-

ments, 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 Brucke-

r, 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;

plaintiff’s injury was her inability to prove her medical-negli-

gence 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

- 40 - employee stepped off curb on employer’s premises did not arise

out of employment because "[c]urbs, 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, plaintiff’s allegations fall

within this definition of "patient care." The risk of an unnec-

essary 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 she 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 plain-

tiff alleges in a vacuum. Patients are at no higher risk of

being sexually assaulted in general, but they are at an infi-

nitely higher risk of being assaulted under the pretext of care

- 41 - or in the course of an otherwise legitimate medical examination.

This hospital sexual assault differs fundamentally from a situa-

tion in which a doctor sexually assaults a patient on the street,

or in a bar, or in the hallway leading to his office. The poten-

tial 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 Ex-

ploitation 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 negli-

gence, because it implicates the "transference phenomenon" refer-

enced by plaintiff:

- 42 - "'The "transference phenomenon" *** has been

defined in psychiatric practice as "a phenom-

enon *** by which the patient transfers feel-

ings toward everyone else to the doctor, who

then must react with a proper response, the

countertransference, in order to avoid emo-

tional involvement and assist the patient in

overcoming problems." [Citation.] The mis-

handling 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 ju-

risdictions, 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,

- 43 - 247 Ill. App. 3d 382, 392, 617 N.E.2d 338, 344-45 (1993).

However, an action under the Exploitation Act is dis-

tinct 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 allega-

tion in count III of plaintiff's 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 exploita-

- 44 - tion 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

- 45 -