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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