dissenting:
In the case at bar, we are confronted with the same question we addressed in Brucker v. Mercola, 227 Ill. 2d 502 (2007), that is, whether a claim “arises out of patient care” within the meaning of the medical malpractice statute of repose. Here, as in Brucker, the majority holds that a claim “arises out of patient care” if there is a “causal connection” between the claim and the medical care received by the plaintiff. 228 Ill. 2d at 17 (“there is a causal connection between plaintiffs 1989 hospitalization and blood transfusion and her current claim against Loyola. Accordingly, her claim arises out of patient care”).
I disagreed with the majority’s interpretation of the statutory language in Brucker, explaining that despite the majority’s assertions to the contrary, its interpretation results in a “but for” test, which is overly broad and could not have been intended by the legislature. Brucker, 227 Ill. 2d at 563 (Burke, J., specially concurring). For the same reasons, I respectfully dissent in the case at bar.
The alleged facts of this case are not in dispute. In the spring of 1989, plaintiff, Diane Orlak, was a patient at a Loyola University Medical Center (the Foster G. Mc-Gaw Hospital) and, while hospitalized, received blood transfusions. In August of 2000, Loyola sent plaintiff a letter informing her that the blood she had received in 1989 might have been tainted with the hepatitis C virus (HCV) and recommended that plaintiff be tested for HCV by her physician. Soon after receiving this notification, plaintiff was tested and learned that she was positive for HCV
In July 2002, plaintiff filed suit against Loyola, seeking recovery due to Loyola’s alleged negligence in: (1) failing to screen the blood administered to her for HCV (2) failing to notify her in a timely fashion of the need to be tested for HCV and (3) failing to timely inform her that the donor whose blood she had received tested positive for HCV. Subsequently, plaintiff amended her complaint. In her third amended complaint, which is currently before us, plaintiff added new allegations, namely, that the Federal Drug Administration (FDA) issued a general memorandum in 1996 to all hospitals, including Loyola, recommending that they notify patients who had received blood transfusions prior to 1992 to consider getting tested for HCV; and that the National Institute of Health (NIH) had published a “Consensus Development Conference Statement” in March 1997, which recommended that persons who received blood transfusions prior to 1990 be tested for HCV Plaintiff recast her prior claims under the headings of medical negligence and medical battery, and added two new counts: count I, which alleged constructive fraud, and count IV which alleged ordinary negligence. In count I, plaintiff contended that because Loyola notified plaintiff in 1990 to be tested for HIV and subsequent testing showed that she was negative for HIV and because Loyola did not notify her of the need to be tested for HCV until 2000, she was lulled into a false sense of security that the blood she had received in 1989 was safe. Plaintiff further alleged that, as a result of Loyola’s failure to notify her of the need to be tested for HCV until 2000, her diagnosis and treatment for HCV were unnecessarily delayed. In count IV plaintiff alleged that, based on the FDA memorandum and the NIH statement, Loyola knew or should have known, in 1996, or at the latest, 1997, of the necessity of providing notice to her of the need to be tested for HCV and, by delaying notice until 2000, “breached its duty to act with reasonable care,” thereby causing her substantial injury.
Loyola moved to dismiss plaintiff’s third amended complaint, arguing that all counts were barred by the medical malpractice statute of repose. The circuit court granted Loyola’s motion. Plaintiff appealed, arguing that her constructive fraud and ordinary negligence claims should not have been dismissed because the gravamen of these claims was Loyola’s failure to provide plaintiff with timely notice, i.e., a breach of an administrative duty, not subject to the medical malpractice statute of repose. The appellate court rejected the plaintiffs argument and affirmed the court below.
Now, in this court, the majority affirms the lower courts’ rulings. The majority acknowledges the plaintiffs contention that “the question in this case is whether the injury [plaintiff] has alleged arose from patient care or from an administrative decision by Loyola not to send notice of the need to be tested for HCV” 228 Ill. 2d at 8. Nevertheless, the majority never considers whether Loyola’s decision was an administrative decision, but simply holds:
“Plaintiffs 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. *** It is apparent here that there is a causal connection between plaintiffs 1989 hospitalization and blood transfusion and her current claim against Loyola.” 228 Ill. 2d at 11-12. Clearly, what the majority is saying is that, absent
the blood transfusion, plaintiff would have no claim for an alleged duty to notify. Thus here, as in Brucker, the majority employs a but-for test for determining whether the statute of repose applies. It is evident from the quoted material above that the majority recognizes that plaintiff has alleged the breach of an administrative duty, i.e., that Loyola breached a duty to give plaintiff timely notice of the need to be tested for HCV Nevertheless, the majority never addresses the nature of plaintiff’s claim, finding only that plaintiffs claim is subject to the statute of repose because the alleged breach of this administrative duty would not exist but for the fact that plaintiff received a blood transfusion at Loyola in 1989.1 disagree with this analysis. As I explained in Brucker, the focus should be on the nature of the alleged wrong, not whether it was “causally related” to patient care. See Brucker, 227 Ill. 2d at 563 (Burke, J., specially concurring). Moreover, I find the majority’s attempts to distinguish the case at bar from Common v. West Suburban Hospital Medical Center, 301 Ill. App. 3d 939 (1998), and Canas v. Al-Jabi, 282 Ga. App. 764, 639 S.E.2d 494 (2006), to be unpersuasive.
There is no analytical difference between the case at bar and the spoliation-of-evidence claim in Common. In Common, plaintiff initially sought recovery for “negligence in [Dr. Tomera’s] performance of the surgeries on July 2 and 10, 1992; his misdiagnosis of the inter-abdominal hematoma; his failure to order timely CT scans; and his failure to achieve adequate homeostasis following the exploratory laparotomy.” Subsequently, however, plaintiff sought recovery against the hospital, alleging that “West Suburban breached its duty to preserve the operative report for the exploratory laparotomy performed on July 10, 1992, thereby prejudicing her claims against Tornera and West Suburban.” Cammon, 301 Ill. App. 3d at 942-43. The appellate court held that the spoliation-of-evidence claim was not subject to the medical malpractice statute of limitations and repose, stating:
“The breach of duty necessary to support a medical negligence action is the defendant’s deviation from the proper medical standard of patient care. Borowski v. Von Solbrig, 60 Ill. 2d 418, 423, 328 N.E.2d 301 (1975). The damages suffered in such an action arise out of inappropriate patient care. By contrast, a negligence action for spoliation of evidence is predicated upon a breach of duty to preserve evidence. Boyd v. Travelers Insurance Co., 166 Ill. 2d 188, 195, 652 N.E.2d 267 (1995). Although the plaintiff in an action alleging the negligent destruction of evidence resulting in an inability to prove a cause of action for medical negligence must prove the merits of the underlying medical negligence claim (see Boyd, 166 Ill. 2d at 197-98), the fact remains that the damages suffered by the plaintiff in such a case arise from the defendant’s destruction of evidence, not the breach of a medical standard of patient care.” 301 Ill. App. 3d at 950.
The Cammon court recognized that a claim “arises out of patient care,” and, thus, falls within the medical malpractice statute of repose, if the claim is one seeking recovery for medical negligence and the alleged breach of duty is a breach of the medical standard of care. This is the same position I took in my special concurrence in Brucker. Brucker, 227 Ill. 2d at 566-67 (Burke, J., specially concurring). Nevertheless, the majority does not overturn the determination in Cammon but, rather, finds it to be distinguishable, stating, “Cammon stands only for the unremarkable proposition that not all negligence actions against physicians or hospitals involve patient care.” 228 Ill. 2d at 10.
The majority’s attempt to distinguish Cammon from the case at bar cannot withstand scrutiny. The majority holds that, in Cammon, the duty to preserve evidence “had nothing whatever to do with patient care.” 228 Ill. 2d at 9-10. But that is not true. If we were to apply the majority’s “causal connection” test, the Cammon plaintiffs spoliation-of-evidence claim was clearly related to her medical treatment because, absent the fact that the plaintiff in Cammon had received medical care at the defendant hospital, she would not have a claim for spoliation of evidence. Moreover, as noted in Cammon, the plaintiff would have had to prove the merits of the underlying medical negligence claim to recover.
If, as the majority holds, not all negligence actions directed to a medical professional involve patient care and, as a result, are not subject to the medical malpractice statute of repose, how is it that we may determine what negligence actions do not involve patient care? Is it not fair to say that “ordinary negligence” claims are claims which are not predicated on a breach of the medical standard of care and, thus, are not subject to the statute of repose? But if that is true, why is it that the majority never even addresses the nature of plaintiff’s claim, which, as alleged by the plaintiff, is an ordinary negligence claim?
The better approach, in my view, was employed by the Georgia appellate court in Canas. In Canas, the plaintiff received blood transfusions in 1985 and, because there were no tests to detect HIV at that time, the blood he received was not tested for HIV Soon after, tests were developed for the detection of HIV in donor blood and, in 1988, a Presidential Commission on the Human Immunodeficiency Virus Epidemic issued a recommendation that all persons who received transfusions between 1977 and 1988 should be notified “as soon as practicable” of the need for HIV testing. The defendant hospital
“did not implement a universal patient notification or ‘recall’ program as recommended by the Presidential Commission; instead, it implemented a ‘donor look-back’ program. In that program, if the hospital discovered that a past blood donor was HIV positive, then the hospital would identify all patients who had received that donor’s blood or blood products and notify those patients of their possible exposure to HIV” Canos, 282 Ga. App. at 768, 639 S.E.2d at 504.
Because plaintiff’s donor never returned to donate blood, plaintiff was never notified of the need to be tested. He learned he was HIV positive several years later when he sought treatment for other illnesses.
In Canas, the plaintiff presented evidence that the decision to implement the donor look-back program was an administrative one, “based on concerns about the expense, logistical complexity, and legal implications.” Canas, 282 Ga. App. at 790, 639 S.E.2d at 518. The Georgia court of appeals agreed and held that the plaintiffs claim seeking recovery for the defendant’s failure to give him timely notice of the need to be tested for HIV was an ordinary negligence claim because the challenged conduct was not medical diagnosis or treatment but, rather, an administrative decision, unrelated to the delivery of medical care.
In the case at bar, plaintiff has alleged that Loyola employed a donor “look-back” program, similar to the one employed in Canas, for deciding when to notify past blood transfusion patients of the need to be tested for HCV Plaintiff has also alleged that the decision to employ the donor look-back program was an administrative decision and, therefore, as in Canas, her claim was one for ordinary negligence. The majority does not explicitly reject the plaintiffs argument that her claim is one for ordinary negligence but, rather, distinguishes Canas on the grounds that the Georgia statute of repose applies to actions for “medical malpractice,” whereas Illinois’ statute of repose applies to all actions “arising out of patient care.” However, as I explained in Brucker, this is a distinction without a difference. See Brucker, 227 Ill. 2d at 566-67 (Burke, J., specially concurring).
The majority does explicitly reject plaintiff’s argument that “the fact that the requirements of section 2 — 622 of the Code (735 ILCS 5/2 — 622 (West 2002)) do not apply to her case provides further support for her contention that her claims against Loyola do not arise out of patient care.” 228 Ill. 2d at 12. The majority holds that section 2 — 622 cases are irrelevant because they “focus [ ] only on actions involving some form of medical malpractice” and “the statute of repose at issue here encompasses a much broader range of claims.” 228 Ill. 2d at 12. Thus, the majority concludes that “the inapplicability of section 2 — 622 to this case does not impact the issue of whether plaintiff’s cause of action arises from patient care.” 228 Ill. 2d at 12.
In other words, the majority recognizes plaintiff’s claim is one alleging ordinary negligence, but holds that this fact is of no significance. I believe this to be error. In my view, cases that draw a distinction between medical negligence claims and ordinary negligence claims are relevant because medical negligence claims are subject to the statute of repose and ordinary negligence claims are not. Moreover, the majority’s failure to recognize this leads to illogical results.
This court’s recent decision in Heastie v. Roberts, 226 Ill. 2d 515 (2007), provides an illustration of this point. In Heastie, the plaintiff was an emergency-room patient who had been restrained and moved to a secluded area because he had no apparent injury, but was drunk, disruptive and deemed a danger to himself and others. While plaintiff was restrained, a fire broke out in the area where plaintiff was being held. The origin of the fire could not be determined. However, there was some evidence that the ignition source might have been a lighter belonging to the plaintiff. Plaintiff brought a negligence action against the hospital, as well as certain security guards, technicians, and nurses, alleging, among other things, that defendants had been negligent because they failed to restrain him properly, failed to search him for contraband before restraining him, and failed to monitor him.
On appeal, the issue in Heastie was whether expert medical testimony was necessary to establish the standard of care with regard to plaintiff’s claim of negligence based on the hospital personnel’s failure to search plaintiff for contraband prior to restraining him and placing him in seclusion. Finding that “[wjhether a hospital patient should be restrained involves the exercise of medical judgment” but “[wjhether the patient should be searched for potentially dangerous contraband before being restrained and sequestered does not” (Heastie, 226 Ill. 2d at 553), we held that “plaintiffs failure-to-search claim *** falls within the category of ordinary negligence” and, for that reason, expert testimony was not required. We noted, further:
“Prerestraint contraband searches are wholly unrelated to the diagnosis or treatment of a patient’s condition. They serve no medical function of any kind. Their purpose is purely safety related, specifically, to insure that a patient who is going to be restrained and then left alone will not have access to implements which may be used to effect an escape, inflict harm on himself or others, or destroy property. Such a purpose bears on a hospital’s administrative and management functions, not its delivery of medical care.” Heastie, 226 Ill. 2d at 553.
According to Heastie, then, the decision to restrain plaintiff was a medical judgment subject to a medical standard of care, but the decision not to search plaintiff before restraining him was an administrative decision and, therefore, plaintiffs claim based on that conduct was one for ordinary negligence. This court was able to make the analytical distinction between ordinary negligence and medical negligence in Heastie. There is no reason we should not apply the same analysis in the case at bar.
In the present case, plaintiff has alleged that Loyola decided to notify transfusion recipients according to a donor look-back program, even though it had been recommended by the FDA and NIH in 1996 and 1997 that persons who had received transfusions prior to 1992 be notified of the need to be tested for HCV Plaintiff further alleges that this decision was an administrative one and that the notice which she was allegedly entitled to receive was neither diagnosis, nor treatment, but was related to her safety and the safety of those around her. Accordingly, plaintiff contends that she has alleged a claim for ordinary negligence which is not subject to the medical malpractice statute of repose. In light of these allegations, I find it wholly insufficient for this court to rule to the contrary based only on the fact that “there is a causal connection between plaintiffs 1989 hospitalization and blood transfusion and her current claim.” 228 Ill. 2d at 17.
In addition, Heastie graphically illustrates a logical anomaly created by the majority’s interpretation of the “arising out of patient care” language in the statute. Heastie holds that the decision not to search a patient for contraband prior to restraining him is an administrative decision “wholly unrelated to the diagnosis or treatment of a patient’s condition” and, consequently, expert testimony to establish a medical standard of care is not required. However, had the issue been the applicability of the medical malpractice statute of limitations and repose, there is no question that, using the majority’s test, this same negligence claim would be subject to the statute because it is “causally related” to plaintiffs emergency-room care and the “medical decision” to restrain the patient. Absent the fact that the defendants decided to restrain plaintiff (which Heastie held was patient care), there would have been no need to search defendant for contraband. Thus, according to Heastie, the failure to search a patient is a breach of an administrative decision and, as such, ordinary negligence, yet this same ordinary negligence claim would be subject to the medical malpractice statute of repose because it is related to patient care. There is no logical reason for such disparate treatment.
Heastie and Cammon highlight the flaws in the majority’s analysis. As I explained in Brucker, the “causal connection” test for deciding whether the statute of repose applies is a “but-for” test, which is far too broad. Moreover, the fact that the majority believes these cases to be distinguishable demonstrates that the majority’s “causal connection” test provides no principled or reasoned means for deciding when the statute of repose applies and when it does not. See Brucker, 227 Ill. 2d at 563 (Burke, J., specially concurring).
Finally, as noted above, the majority never looks at the nature of the wrongful conduct, as alleged in plaintiffs complaint, and never resolves the question of whether plaintiff is seeking recovery for the breach of an administrative duty or the breach of a medical standard of care. In short, the majority never directly addresses plaintiff’s assertion that she has alleged an ordinary negligence claim. The necessary implication, therefore, is that it does not matter whether a plaintiff’s claim is one for ordinary negligence. It will be subject to the medical malpractice statute of repose simply because the claim occurred in the context of medical care. The majority’s position sweeps too broadly and is an unwarranted expansion of the medical malpractice statute of repose.
In my view, the proper test for determining whether a claim “arises out of patient care” should be whether the wrongful conduct which is the basis for the claim is medical malpractice. See Brucker, 227 Ill. 2d at 566 (Burke, J., specially concurring). In such instances, the alleged breach of duty will be a breach of the medical standard of patient care. See Cammon, 301 Ill. App. 3d at 950.
In the case at bar, the wrongful conduct alleged in plaintiff’s constructive fraud and ordinary negligence claims is Loyola’s failure to give her timely notice of the need to be tested for HCV The damages plaintiff sought to recover were a result of that conduct, not because she received tainted blood in the first instance. The alleged delay in providing notice has nothing to do with the provision of medical care to plaintiff. As pled, the alleged duty to provide notice of updated information to blood transfusion recipients, if such a duty exists, is an administrative one, separate and independent from the “patient care” plaintiff received in 1989.
It is my view that plaintiffs ordinary negligence and constructive fraud claims do not “arise out of patient care” and are not subject to the medical malpractice statute of repose. Accordingly, these claims should not have been dismissed on that basis. I would reverse the lower courts’ dismissal of plaintiffs constructive fraud and ordinary negligence claims and remand for further proceedings.
I note that Loyola denies that a duty to provide information to former blood transfusion recipients exists. However, because of the nature of my dissent, I do not reach the issue of whether plaintiff’s complaint sufficiently alleges that Loyola owed plaintiff a duty to notify her of the need to be tested for HCV prior to 2000. Thus, I express no opinion on whether plaintiff sufficiently states causes of action for constructive fraud and ordinary negligence such that these claims would necessarily survive a motion to dismiss brought under section 2 — 615 of the Code of Civil Procedure.