Uldrych v. VHS of Illinois

• Court: Appellate Court of Illinois
• Decided: March 2, 2010
• Docket: 1-08-3278 Rel
• Status: Published

Opinion

SECOND DIVISION FILED: March 2, 2010

No. 1-08-3278

HELEN ULDRYCH, Individually and ) APPEAL FROM THE as Special Administrator of the ) CIRCUIT COURT OF Estate of RUDOLPH ULDRYCH, Deceased, ) COOK COUNTY. ) Plaintiff, ) ) v. ) ) VHS OF ILLINOIS, INC., d/b/a ) MACNEAL HOSPITAL, ) ) Defendant and Counterplaintiff- ) No. 05 L 1597 Appellant, ) ) and ) ) CHRISTOPHER D. JOYCE, M.D., ) JEFFERY C. ZAWACKI, M.D., and ) SUBURBAN SURGICAL ASSOCIATES, ) LTD., a corporation, ) ) THE HONORABLE Defendants and Counterdefendants- ) SHELDON A. HARRIS, Appellees. ) JUDGE PRESIDING.

JUSTICE HOFFMAN delivered the opinion of the court:

VHS of Illinois, Inc., d/b/a MacNeal Hospital (MacNeal

Hospital) appeals from an order of the circuit court dismissing

its amended counterclaim for implied indemnity as time-barred

pursuant to section 13-212(a) of the Code of Civil Procedure

(Code) (735 ILCS 5/13-212(a) (West 2002)). For the reasons which

follow, we affirm. No. 1-08-3278

On February 10, 2003, Rudolph Uldrych underwent gastric

bypass surgery at MacNeal Hospital. In February of 2005, Rudolph

and his wife, Helen Uldrych, filed a medical malpractice action

alleging that Rudolph suffered severe and permanent injuries as a

result of the creation of a misconstructed bowel segment during

the February 10, 2003, surgery. Among the defendants sued by the

Uldrychs were the physicians who performed the surgery, Drs.

Christopher Joyce and Jeffrey Zawacki, and the physicians' alleged employers, Suburban Surgical Associates, Ltd. (Suburban

Surgical) and MacNeal Hospital.

Following the initiation of this lawsuit, Rudolph died and

Helen was appointed special administrator of his estate. On

August 26, 2005, Helen Uldrych filed a four-count, second-amended

complaint, setting forth claims for survival and wrongful death.

Counts I and III alleged that Dr. Joyce and Dr. Zawacki were

negligent in creating and/or failing to diagnose the

misconstructed bowel segment. These counts further alleged that Suburban Surgical was one of the physicians' employers and,

therefore, vicariously liable. Counts II and IV, on the other

hand, alleged that Drs. Joyce and Zawacki were MacNeal Hospital's

actual or apparent agents and that MacNeal Hospital was

vicariously liable for the physicians' negligent acts and

omissions.

On August 27, 2008, MacNeal Hospital filed a counterclaim

against Dr. Joyce, Dr. Zawacki, and Suburban Surgical. In its

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counterclaim, MacNeal Hospital alleged that it had agreed to pay

$1,000,000 to settle the underlying malpractice action and sought

indemnification.

On September 19, 2008, the circuit court entered an order

that dismissed the underlying medical malpractice action pursuant

to a settlement, but specifically stated that MacNeal Hospital's

counterclaim remained pending. On that same day, MacNeal

Hospital filed an amended counterclaim, alleging that Drs. Joyce and Zawacki were the actual employees or agents of Suburban

Surgical at the time the gastric bypass surgery was performed.

Nevertheless, the amended counterclaim further alleged that Dr.

Joyce, Dr. Zawacki, and Suburban Surgical owed MacNeal Hospital

an implied quasi-contractual obligation for indemnification based

on the assertions contained in the second-amended complaint that

Drs. Joyce and Zawacki were the actual or apparent agents of

MacNeal Hospital. The amended counterclaim again sought

indemnification for the $1,000,000 that MacNeal Hospital had agreed to pay to settle the underlying action.

Thereafter, Dr. Joyce, Dr. Zawacki, and Suburban Surgical

filed motions to dismiss MacNeal Hospital's amended counterclaim

pursuant to section 2-619(a)(5) of the Code (735 ILCS 5/2-

619(a)(5) (West 2002)). These motions alleged, inter alia, that

MacNeal Hospital did not file its counterclaim for implied

indemnification within the four-year statute of repose contained

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

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2002)), commonly referred to as the medical malpractice statute

of repose. On November 7, 2008, the circuit court granted the

motions and dismissed MacNeal Hospital's amended counterclaim as

time-barred. This timely appeal followed.

In urging reversal of the dismissal of its amended

counterclaim, MacNeal Hospital contends that the four-year

medical malpractice statute of repose set forth in section 13-

212(a) of the Code (735 ILCS 5/13-212(a) (West 2002)) does not bar its counterclaim for implied indemnity. MacNeal Hospital

argues that section 13-212 is inapplicable as its counterclaim is

grounded in the quasi-contractual implied duty to indemnify, not

medical malpractice.

MacNeal Hospital's amended counterclaim was dismissed

pursuant to 2-619(a)(5) of the Code, which allows for involuntary

dismissal when "the action was not commenced within the time

limited by law." 735 ILCS 5/2-619(a)(5) (West 2002). A section

2-619 motion to dismiss admits the legal sufficiency of the complaint and raises defects, defenses, or other affirmative

matters that defeat the claim. Cohen v. McDonald's Corp., 347

Ill. App. 3d 627, 632, 808 N.E.2d 1 (2004). Such a motion should

be granted if, after construing the pleadings and supporting

documents in a light most favorable to the nonmoving party, the

court finds that no set of facts can be proved upon which relief

can be granted. Webb v. Damisch, 362 Ill. App. 3d 1032, 1037,

842 N.E.2d 140 (2005). This court does not give deference to the

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circuit court's ruling on a motion to dismiss pursuant to section

2-619, but, rather, reviews the matter de novo. Fuller Family

Holdings, LLC v. Northern Trust Co., 371 Ill. App. 3d 605, 613,

863 N.E.2d 743 (2007).

As it relates to this case, section 13-212(a) of the Code

provides that:

"[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, whether based

upon tort, or breach of contract, or

otherwise, arising out of patient care shall

be brought more than 2 years after the date

on which the claimant knew, or through the

use of reasonable diligence should have

known, or received notice in writing of the

existence of the injury or death for which damages are sought in the action, whichever

of such date occurs first, but in no event

shall such action be brought more than 4

years after the date on which occurred the

act or omission or occurrence alleged in such

action to have been the cause of such injury

or death." (Emphasis added.) 735 ILCS 5/13-

212(a) (West 2002).

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In determining whether this section of the Code applies, courts

do not focus on the actual labeling of the claims. Orlak v.

Loyola University Health System, 228 Ill. 2d 1, 14, 885 N.E.2d

999 (2007). Rather, the relevant question is whether the claims

arose out of patient care. Orlak 228 Ill. 2d at 14. "Arising

out of patient care" simply requires a causal connection between

the patient's medical care and the injury. Brucker v. Mercola,

227 Ill. 2d 502, 523, 886 N.E.2d 306 (2007). This phrase has been interpreted broadly to include "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.

In Hayes v. Mercy Hospital & Medical Center, 136 Ill. 2d

450, 557 N.E.2d 873 (1990), the Illinois Supreme Court held that

third-party actions for contribution are subject to the four-year

statute of repose set forth in section 13-212(a). Hayes, 136

Ill. 2d at 460-61. In reaching this conclusion, the Hayes court

rejected the third-party plaintiffs' argument that an action for contribution does not seek recovery for the damages sustained by

the original plaintiff, but rather, seeks the enforcement of an

equitable duty to share liability among the parties responsible

for the original plaintiff's injury. The court reasoned:

"We believe that the plaintiffs'

interpretation of the medical malpractice

statute of repose unduly limits its scope and

misapprehends the purpose behind its

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enactment. It is true, as the plaintiffs

observe, that an action for contribution need

not be predicated on the same theory of

recovery as that asserted by the plaintiff in

the underlying action. [Citations.]

Nevertheless, 'the basis for a contributor's

obligation rests on his liability in tort to

the injured party' [citation.], even if the plaintiff in the direct action did not assert

the theory of liability on which the third-

party action relies. The action for

contribution apportions the damages among the

parties responsible for the original

plaintiff's injury, and the contributor is

obligated for the damages directly created by

the contributor's negligent actions. The

third-party plaintiff, therefore, is seeking from the third-party defendant those damages

proximately caused by the negligent acts of

the third-party defendant which the third-

party plaintiff may be obligated to pay in

the underlying suit. This leads us to

conclude that an action for contribution is

an 'action for damages' under the medical

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malpractice statute of repose." Hayes, 136

Ill. 2d at 456-57.

The Hayes court further observed that section 13-212 was enacted

in response to a perceived medical malpractice insurance crisis

and that a definite period in which an action was required to be

filed would enable insurance companies to predict future

liabilities and reduce health-care malpractice insurance

premiums. Hayes, 136 Ill. 2d at 457-58. The supreme court determined that, "[b]ecause a suit for contribution against an

insured for damages arising out of patient care exposes insurance

companies to the same liability as if the patient were to have

brought a direct action against the insured, we believe that the

term 'or otherwise' in the medical malpractice statute of repose

includes actions for contribution against a physician for

injuries arising out of patient care." Hayes, 136 Ill. 2d at

458.

In Ashley v. Evangelical Hospitals Corp., 230 Ill. App. 3d 513, 594 N.E.2d 1269 (1992), this court expanded the holding in

Hayes to third-party actions for implied indemnity. Ashley, 230

Ill. App. 3d at 522; see also Roberson v. Belleville Anesthesia

Associates, Ltd., 213 Ill. App. 3d 47, 51, 571 N.E.2d 1131 (1991)

(reaching a similar result). The Ashley court observed that,

much like the relationship between a third-party plaintiff and a

third-party defendant in an action for contribution, the

indemnitee in an implied indemnity claim seeks from the

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indemnitor those damages caused by the indemnitor in the

underlying suit. Ashley, 230 Ill. App. 3d at 518. This court

also noted that, similar to a suit for contribution, a claim for

indemnification exposes an insurance company to the same

liability as if the patient had brought a direct action against

the insured. Ashley, 230 Ill. App. 3d at 521. Accordingly, the

Ashley court concluded that the inclusion of third-party actions

for implied indemnity within the ambit of the medical malpractice period of repose furthers the statute's legislative intent of

enabling insurance companies to better predict future liability

by reducing the extended exposure of physicians and hospitals to

medical malpractice liability. Ashley, 230 Ill. App. 3d at 521.

In its briefs before this court, MacNeal Hospital

acknowledges this court's holding in Ashley that the four-year

medical malpractice statute of repose applies to claims for

implied indemnity. See Ashley, 230 Ill. App. 3d at 522.

Nevertheless, MacNeal Hospital contends that Ashley is no longer controlling in light of the Illinois Supreme Court's recent

decision in Travelers Casualty & Surety Co. v. Bowman, 229 Ill.

2d 461, 893 N.E.2d 583 (2008) (Travelers).

In Travelers, an insurer issued several performance bonds to

a metalworking company. After the company breached its

underlying construction contracts and the payment of claims under

the performance bonds resulted, the insurer filed suit against

the company for indemnification based on a written indemnity

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agreement the company had signed when the bonds were issued. The

company moved to dismiss the suit, arguing that the insurer's

claims were barred by the four-year statute of limitations in

section 13-214(a) of the Code (735 ILCS 5/13-214(a) (West 2002)),

applicable to construction improvements to real property. The

insurer, however, asserted that the 10-year statute of

limitations for written contracts in section 13-206 of the Code

(735 ILCS 5/13-206 (West 2002)) should apply. The Illinois Supreme Court ruled in favor of the insurer,

noting that it had long held that the nature of the plaintiff's

injury rather than the facts from which the claim arises

determines what limitations period governs. Travelers, 229 Ill.

2d at 466, citing Armstrong v. Guigler, 174 Ill. 2d 281, 286-87,

673 N.E.2d 290 (1996). Applying this analysis, the supreme court

determined that the company's liability did not emanate from a

construction-related activity but from the breach of the written

indemnity agreement, and, therefore, the four-year statute of limitations in section 13-214(a) was inapplicable. Travelers,

229 Ill. 2d at 469-70. Instead, the Travelers court concluded

that the insurer's suit was governed by the 10-year statute of

limitations for written contracts set forth in section 13-206.

Travelers, 229 Ill. 2d at 478.

Relying on the holding in Travelers that the nature of the

plaintiff's injury rather than the facts from which the claim

arises determines what limitations period applies, MacNeal

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Hospital maintains that, in determining whether its counterclaim

for implied indemnity is barred by the medical malpractice

statute of repose, we should focus on the quasi-contractual

liability it was owed by Drs. Joyce and Zawacki, not the

physicians' liability in the underlying medical malpractice

action. See Allison v. Shell Oil Co., 113 Ill. 2d 26, 28-29, 495

N.E.2d 496 (1986) (noting that a claim for quasi-contractual

implied indemnity arises from certain pre-tort relationships in which the indemnitor impliedly promised to indemnify the loss

incurred by the indemnitee). Contrary to MacNeal Hospital's

argument, however, we find Travelers to be distinguishable.

Unlike the statutes of limitations at issue in Travelers,

the medical malpractice statute of repose expressly states that

it applies to actions "arising out of patient care." Compare 735

ILCS 5/13-206, 13-214(a) (West 2002) with 735 ILCS 5/13-212(a)

(West 2002). As previously discussed, this phrase has been

interpreted broadly to include "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. Accordingly, the

medical malpractice statute of repose employs a much broader and

different test than most statutes of limitations. We, therefore,

conclude that the language in Travelers setting forth what courts

should generally consider when determining which limitations

period governs is wholly inapplicable. Rather, to determine

whether an injury has its origin in or is incidental to a

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patient's medical care and treatment and, thus, falls within the

scope of the medical malpractice statute of repose, courts must

look past the nature of the injury itself and, instead, examine

the facts from which the injury arose.

Having rejected the arguments raised by MacNeal Hospital, we

continue to adhere to this court's holding in Ashley that actions

for implied indemnity are subject to the four-year period of

repose contained in section 13-212(a) of the Code (735 ILCS 5/13- 212(a) (West 2002)). As a consequence, MacNeal Hospital's

implied indemnity claim, which was filed more than one-and-a-half

years after the expiration of the period of repose, was properly

dismissed by the circuit court.

For the foregoing reasons, we affirm the judgment of the

circuit court.

Affirmed.

CUNNINGHAM, P.J., and THEIS, J., concur.

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