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
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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
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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
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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
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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
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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-
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 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
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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.
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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
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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
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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
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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-
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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
found in section 13-212 of the Code (735 ILCS 5/13-212 (West
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
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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
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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-
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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:
"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
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.
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
assaulted than women in general because nurses are seen as
strongly maternal and often disturbed men have Oedipal issues);
C.A. Dunham Co. v. Industrial Comm'n, 16 Ill. 2d 102, 112-13, 156
N.E.2d 560, 566 (1959) (death of traveling employee who was
killed when airplane exploded due to bomb in cargo hold held to
arise out of his employment because the travel requirements of
his employment put him at increased risk for dying in a plane
crash).
Adapted to the medical context, if a patient’s care
exposes him to a risk distinctly associated with medical care or
to a risk common to the general public to a greater degree than
the general public, then the injury must arise out of his patient
care. However, if the injury results from a hazard to which the
patient would have been equally exposed apart from the patient
care, or a risk personal to the patient, the injury does not
arise out of patient care.
- 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:
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"'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,
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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-
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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
judgment.
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