{ "id": 4288541, "name": "KRISTEN KAUFMANN, Appellant, v. ROGER A. SCHROEDER, M.D., et al. (Jersey Community Hospital, a Municipal Corporation, Appellee)", "name_abbreviation": "Kaufmann v. Schroeder", "decision_date": "2011-02-25", "docket_number": "No. 109738", "first_page": "194", "last_page": "217", "citations": [ { "type": "official", "cite": "241 Ill. 2d 194" } ], "court": { "name_abbreviation": "Ill.", "id": 8772, "name": "Illinois Supreme Court" }, "jurisdiction": { "id": 29, "name_long": "Illinois", "name": "Ill." }, "cites_to": [ { "cite": "396 Ill. App. 3d 729", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4293237 ], "weight": 5, "pin_cites": [ { "page": "742" }, { "page": "744", "parenthetical": "Myerscough, EJ., dissenting" }, { "page": "743" } ], "opinion_index": 0, "case_paths": [ "/ill-app-3d/396/0729-01" ] }, { "cite": "227 Ill. 2d 502", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5705778 ], "weight": 3, "year": 2007, "pin_cites": [ { "page": "523" }, { "page": "523-24" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/227/0502-01" ] }, { "cite": "228 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5706340 ], "weight": 2, "year": 2007, "pin_cites": [ { "page": "14-15", "parenthetical": "quoting Black's Law Dictionary 115 (8th ed. 2004)" } ], "opinion_index": 0, "case_paths": [ "/ill-2d/228/0001-01" ] }, { "cite": "396 Ill. App. 3d 729", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4293237 ], "pin_cites": [ { "page": "741" } ], "opinion_index": 1, "case_paths": [ "/ill-app-3d/396/0729-01" ] }, { "cite": "227 Ill. 2d 502", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5705778 ], "weight": 4, "year": 2007, "pin_cites": [ { "page": "523" }, { "page": "523-24" }, { "page": "514" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/227/0502-01" ] }, { "cite": "207 Ill. 2d 193", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 974996 ], "weight": 2, "year": 2003, "pin_cites": [ { "page": "203" } ], "opinion_index": 1, "case_paths": [ "/ill-2d/207/0193-01" ] }, { "cite": "227 Ill. 2d 502", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5705778 ], "weight": 18, "year": 2007, "pin_cites": [ { "page": "506-09" }, { "page": "515" }, { "page": "515" }, { "page": "515-16" }, { "page": "516-17" }, { "page": "516-17, 532" }, { "page": "518" }, { "page": "521-22" }, { "page": "521-22" }, { "page": "522" }, { "page": "523-24" }, { "page": "524-25" }, { "page": "523-24" }, { "page": "521" }, { "page": "523-24" } ], "opinion_index": 2, "case_paths": [ "/ill-2d/227/0502-01" ] }, { "cite": "228 Ill. 2d 1", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 5706340 ], "weight": 15, "year": 2007, "pin_cites": [ { "page": "4-6" }, { "page": "5-6" }, { "page": "6" }, { "page": "9" }, { "page": "12" }, { "page": "14" }, { "page": "15" }, { "page": "16" }, { "page": "16-17" }, { "page": "17" }, { "page": "15" }, { "page": "16-17" } ], "opinion_index": 2, "case_paths": [ "/ill-2d/228/0001-01" ] }, { "cite": "207 Ill. 2d 193", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 974996 ], "year": 2003, "pin_cites": [ { "page": "203-04" } ], "opinion_index": 2, "case_paths": [ "/ill-2d/207/0193-01" ] }, { "cite": "136 Ill. 2d 450", "category": "reporters:state", "reporter": "Ill. 2d", "case_ids": [ 3255119 ], "weight": 3, "year": 1990, "pin_cites": [ { "page": "457-58" }, { "page": "459" } ], "opinion_index": 2, "case_paths": [ "/ill-2d/136/0450-01" ] }, { "cite": "357 Ill. App. 3d 798", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4136134 ], "year": 2005, "pin_cites": [ { "page": "803" } ], "opinion_index": 2, "case_paths": [ "/ill-app-3d/357/0798-01" ] }, { "cite": "364 Ill. App. 3d 946", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 4262401 ], "year": 2006, "pin_cites": [ { "page": "953-54" } ], "opinion_index": 2, "case_paths": [ "/ill-app-3d/364/0946-01" ] }, { "cite": "279 Ill. 11", "category": "reporters:state", "reporter": "Ill.", "case_ids": [ 4881786 ], "year": 1917, "pin_cites": [ { "page": "15" } ], "opinion_index": 2, "case_paths": [ "/ill/279/0011-01" ] }, { "cite": "186 Ill. App. 3d 175", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 2655225 ], "weight": 5, "year": 1989, "pin_cites": [ { "page": "176" }, { "page": "177" }, { "page": "178" } ], "opinion_index": 2, "case_paths": [ "/ill-app-3d/186/0175-01" ] }, { "cite": "272 Ill. App. 3d 418", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 252547 ], "weight": 3, "year": 1995, "pin_cites": [ { "page": "420-21" }, { "page": "425" } ], "opinion_index": 2, "case_paths": [ "/ill-app-3d/272/0418-01" ] }, { "cite": "301 Ill. App. 3d 939", "category": "reporters:state", "reporter": "Ill. App. 3d", "case_ids": [ 257128 ], "weight": 2, "year": 1998, "pin_cites": [ { "page": "950" } ], "opinion_index": 2, "case_paths": [ "/ill-app-3d/301/0939-01" ] } ], "analysis": { "cardinality": 1290, "char_count": 44167, "ocr_confidence": 0.74, "pagerank": { "raw": 5.6377584278412884e-08, "percentile": 0.3521435033471063 }, "sha256": "cf55ec45af6d7a8bb3f07399b1d55f9cb6b34e3392ab6efb7b8f324d4efe1627", "simhash": "1:bab73f7a966492fc", "word_count": 7184 }, "last_updated": "2023-07-14T21:49:30.571673+00:00", "provenance": { "date_added": "2019-08-29", "source": "Harvard", "batch": "2018" }, "casebody": { "judges": [], "parties": [ "KRISTEN KAUFMANN, Appellant, v. ROGER A. SCHROEDER, M.D., et al. (Jersey Community Hospital, a Municipal Corporation, Appellee)." ], "opinions": [ { "text": "JUSTICE BURKE\ndelivered the judgment of the court, with opinion.\nJustice Theis concurred in the judgment and opinion.\nJustice Freeman specially concurred, with opinion, joined by Justices Thomas and Karmeier.\nJustice Garman dissented, with opinion, joined by Chief Justice Kilbride.\nOPINION\nThe single issue in this case is whether claims brought by plaintiff, Kristen Kaufmann (Kaufmann), against Jersey Community Hospital (JCH) are time-barred. Kaufmann initially filed suit against Dr. Roger A. Schroeder (Schroeder) and JCH on December 31, 2007, to recover for injuries suffered during a hospitalization in January 2006. The circuit court of Jersey County found that the one-year limitation period found in section 8 \u2014 101(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act or Act) (745 ILCS 10/8 \u2014 101(b) (West 2006)) applied with respect to claims brought against JCH. Because Kaufmann\u2019s suit was filed more than one year from the date of her alleged injuries, the circuit court dismissed the claims against JCH as time-barred.\nKaufmann appealed contending that her complaint was timely filed with respect to JCH because she is seeking recovery for injuries \u201carising out of patient care\u201d and, thus, the two-year statute of limitations in section 8 \u2014 101(b) of the Tort Immunity Act applies. The appellate court affirmed the circuit court\u2019s dismissal order. 396 Ill. App. 3d 729. For reasons that follow, we affirm the judgment of the appellate court.\nBACKGROUND\nOn December 31, 2007, Kaufmann filed an initial two-count complaint against Schroeder and JCH. She amended the complaint on June 23, 2008. In her amended complaint, consisting of 10 counts, Kaufmann alleged that she had been hospitalized at JCH in January 2006 by Dr. Schroeder, who had been her obstetrician-gynecologist since 2004. Kaufmann further alleged that during her hospitalization she was sedated by Dr. Schroeder for \u201can unnecessary exam and/or procedure which did not require sedation\u201d and that, after she was sedated, Dr. Schroeder committed a deviant act of a sexual nature on her. Specifically, Kaufmann claimed that, as she began to regain consciousness after being sedated, she became aware that Dr. Schroeder was licking her breasts.\nAs to JCH, Kaufmann\u2019s complaint contained allegations that JCH had been aware that Dr. Schroeder had sexually attacked other patients yet continued to permit him to examine female patients without having a nurse or other staff member present. Kaufmann also alleged that she notified the Illinois State Police of the incident and the police instructed her to refrain from filing suit against Dr. Schroeder until the police were able to collect certain unspecified evidence regarding Dr. Schroeder\u2019s sexual assault of Kaufmann and other patients.\nCounts I through III of the amended complaint were brought against Dr. Schroeder and alleged battery, intentional infliction of emotional distress and negligence. Counts IV through X of the amended complaint were brought against JCH and alleged negligent hiring, negligent retention, negligent supervision, \u201cnegligence (willful and wanton),\u201d intentional infliction of emotional distress, negligent infliction of emotional distress and vicarious liability for the misconduct of Dr. Schroeder as alleged in counts I through III.\nOn July 3, 2008, JCH moved for the dismissal of Kaufmann\u2019s amended complaint, alleging that it was time-barred. The hospital argued that, because it is a municipal corporation, the governing statute of limitations is section 8 \u2014 101(a) of the Tort Immunity Act (745 ILCS 10/8 \u2014 101(a) (West 2006)). That provision requires that any suit brought against a local governmental entity be commenced within one year of the date the injury was received or the cause of action accrued. Because Kauf-mann filed suit more than one year from the date the injury was received, JCH contended that the cause of action should be dismissed.\nKaufmann disagreed. She argued that because her injuries arose out of patient care, the two-year statute of limitations in section 8 \u2014 101(b) of the Act (745 ILCS 10/ 8 \u2014 101(b) (West 2006)) applied and, thus, her complaint was timely.\nThe circuit court granted the hospital\u2019s motion and dismissed counts IV through X of Kaufmann\u2019s complaint. Kaufmann sought reconsideration. However, after a hearing, the circuit court denied plaintiff\u2019s motion and expressly held, pursuant to Supreme Court Rule 304(a), that there was no just reason to delay appeal. Ill. S. Ct. R. 304(a) (eff. Jan. 1, 2006).\nPlaintiff appealed and on December 8, 2009, the appellate court filed an opinion affirming the circuit court\u2019s dismissal of Kaufmann\u2019s complaint. 396 Ill. App. 3d 729. A majority of the court held that the one-year limitations period applied because \u201c[pllaintiff s injuries arose from Schroeder\u2019s act of sexual gratification, which was clearly separate from her patient care.\u201d 396 Ill. App. 3d at 742. Presiding Justice Myerscough dissented. She agreed with plaintiff that the two-year statute of limitations applied. In her view plaintiffs injuries arose out of patient care because, \u201cThis 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 patient\u2019s medical care.\u201d 396 Ill. App. 3d at 744 (Myerscough, EJ., dissenting).\nWe granted plaintiffs petition for leave to appeal. Ill. S. Ct. R. 315 (eff. Feb. 26, 2010).\nANALYSIS\nAs noted earlier, the single issue before this court is whether, with regard to JCH, Kaufmann\u2019s complaint was timely filed. JCH is a municipal corporation and, as such, the time period in which a claim may be brought against it is limited by the Local Governmental and Governmental Employees Tort Immunity Act. Section 8 \u2014 101 of the Act, which sets forth the limitation periods, provides in subsection (a):\n\u201cNo civil action other than an action described in subsection (b) may be commenced 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.\u201d (Emphasis added.) 745 ILCS 10/8 \u2014 101(a) (West 2006).\nThe exception referred to in subsection (a) and contained in subsection (b) is as follows:\n\u201cNo action for damages for injury or death against any local public entity or public 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 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 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 occurrence alleged in the action to have been the cause of the injury or death.\u201d (Emphasis added.) 745 ILCS 10/8 \u2014 101(b) (West 2006).\nIn the case at bar, JCH argues that the circuit and appellate courts below correctly found that the one-year limitations period in section 8 \u2014 101(a) applied to the seven counts brought against it in Kaufmann\u2019s complaint. Kaufmann, however, contends that the lower courts were incorrect and that the limitations period found in subsection (b) applies because the injuries for which she seeks recovery are injuries arising out of patient care.\nThe ultimate issue before this court, therefore, is whether the injuries for which Kaufmann seeks recovery in her claims against JCH are injuries \u201carising out of patient care\u201d within the meaning of section 8 \u2014 101(b) of the Act. In the seven counts brought by Kaufmann against JCH, Kaufmann seeks recovery based on various claims of independent negligence by JCH, as well as its vicarious liability for the negligence of its employee, Dr. Schroeder. However, in all instances, Kaufmann seeks recovery for damages based on the injuries she suffered as a result of the sexual battery committed by Dr. Schroeder. Kaufmann concedes this to be so, but contends that the sexual battery occurred during her hospitalization and in the course of her treatment by Dr. Schroeder. Thus, she contends her injuries stemming from the sexual battery arose out of patient care. We disagree.\nAlthough we have never interpreted section 8 \u2014 101(b) of the Act, we have interpreted the identical language contained within the limitations provision in section 13\u2014 212 of the Code of Civil Procedure (735 ILCS 5/13 \u2014 212 (West 2006)), which pertains to civil actions brought against a physician or hospital. See Brucker v. Mercola, 227 Ill. 2d 502 (2007); Orlak v. Loyola University Health System, 228 Ill. 2d 1 (2007). Section 13 \u2014 212 provides:\n\u201cExcept as provided in Section 13 \u2014 215 of this Act [735 ILCS 5/13 \u2014 215], no 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 he 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.\u201d (Emphasis added.) 735 ILCS 5/13 \u2014 212(a) (West 2006).\nIt is entirely appropriate that we should interpret the \u201carising out of patient care\u201d language contained in subsection (b) of section 8 \u2014 101 of the Tort Immunity Act in conformity with section 13 \u2014 212 because the two provisions were intended to be harmonious. In 2003, the legislature amended the Tort Immunity Act, adding subsection (b) in an effort to bring it in alignment with section 13 \u2014 212. As Representative Hultgren explained, by adding subsection (b), a person who suffers injuries arising out of patient care would not be disadvantaged by a shortened limitations period simply because he or she happened to obtain treatment at a public facility rather than a private one. See 93d Ill. Gen. Assem., House Proceedings, April 15, 2003, at 7-8 (statements of Representative Hultgren).\nTurning to our previous interpretation of the \u201carising out of patient care\u201d language, we first look to Brucker. In Brucker, this court concluded that an injury arises out of patient care if the injury is causally connected to the patient\u2019s medical care and treatment. See Brucker, 227 Ill. 2d at 523. Although we agreed that \u201carising out of patient care\u201d was to be construed broadly, we emphasized that our interpretation was not so broad as to encompass \u201cbut for\u201d causation. Brucker, 227 Ill. 2d at 523-24.\nSimilarly, in Orlak, this court reiterated that \u201carising out of patient care\u201d did not encompass \u201cbut for\u201d causation. Rather, it meant that the injury had \u201c \u2018[t]o originate; to stem (from),\u2019 or \u2018to result (from)\u2019 \u201d the patient\u2019s medical care or treatment. See Orlak, 228 Ill. 2d at 14-15 (quoting Black\u2019s Law Dictionary 115 (8th ed. 2004)).\nIn the case before this court, Kaufmann did not allege that she was injured because of the medical treatment she received. In other words, she did not claim that the \u201cunnecessary\u201d exam and sedation she received during her hospitalization harmed her in any way. Rather, the harm resulted from the sexual assault. The sedation that was given and the \u201cunnecessary\u201d exam (if one was, in fact, performed) were not part of Kaufmann\u2019s medical treatment, but simply a means by which Schroeder was able to accomplish his sexual assault on Kaufmann.\nIn sum, we find that Kaufmann\u2019s injury arose out of Dr. Schroeder\u2019s sexual assault and not any medical care she received from him. The sexual assault, itself, was not medical care, nor was there even any pretense that Dr. Schroeder\u2019s sexual acts were necessitated by, or in any way related to, the medical care he was providing to Kaufmann. There was no suggestion by Schroeder that there existed a medical reason for his actions.\nCONCLUSION\nKaufmann\u2019s injury did not arise from patient care. For this reason, subsection (b) of the Tort Immunity Act, containing the two-year limitations period for injuries \u201carising out of patient care,\u201d is inapplicable and, thus, the claims brought against JCH were properly dismissed as time-barred.\nFor the reasons stated, the appellate court judgment is affirmed.\nAffirmed.\nThis factual allegation was made in relation to Kaufmann\u2019s alternative argument before the appellate court that, if the one-year statute of limitations in section 8 \u2014 101(a) of the Tort Immunity Act applied, the limitations period should be equitably tolled because she was prevented from filing her civil suit while the criminal investigation was pending. The appellate court found no basis for tolling the statute of limitations because Schroeder was indicted in May 2006, which left Kaufmann more than six months to file her claims against JCH before the one-year limitations period expired. 396 Ill. App. 3d at 743. Kaufmann does not raise equitable tolling as an issue in her appeal before this court.", "type": "majority", "author": "JUSTICE BURKE" }, { "text": "JUSTICE FREEMAN,\nspecially concurring:\nAlthough I join fully in today\u2019s decision holding that plaintiffs injury did not arise from patient care, I write separately to explain that the standard the court employs is consistent with our precedent and not, as the dissent suggests, a \u201csignificant departure\u201d from it.\nThis case requires us to revisit Brucker v. Merc\u00f3la, 227 Ill. 2d 502 (2007), a divided decision in which I joined in the majority opinion. In Brucker this court addressed, as it does here, the statutory phrase \u201carising out of patient care,\u201d and looked to workers\u2019 compensation cases for guidance in construing the term. In doing so, we relied on Sisbro, Inc. v. Industrial Comm\u2019n, 207 Ill. 2d 193 (2003), a workers\u2019 compensation case in which the court stated:\n\u201cThe \u2018arising out of component is primarily concerned with causal connection. To satisfy this requirement it must be shown that the injury 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.\u201d Sisbro, 207 Ill. 2d at 203.\nWith this construction in mind, we held in Brucker that \u201carising out of patient care\u201d simply required \u201ca causal connection between the patient\u2019s medical care and the injury.\u201d Brucker, 227 Ill. 2d at 523. The phrase was not to be construed so broadly as to encompass \u201cbut for\u201d causation, but it nevertheless covered injuries which had their origin in, or were incidental to, a patient\u2019s medical care and treatment. Brucker, 227 Ill. 2d at 523-24. Applying this standard, we concluded the plaintiffs injury arose out of patient care. In Brucker, the plaintiff alleged she and her fetus were poisoned when her doctor negligently sold her the wrong substance to treat a medical condition the doctor had diagnosed. We held the injury was caused by the plaintiffs medical treatment.\nHere, plaintiffs injury resulted when her doctor allegedly committed a sexual assault against her while she was hospitalized for a urinary tract infection. According to plaintiff, the doctor licked her breasts. Using the exact same standard applied in Brucker, it cannot be said that the alleged sexual assault against plaintiff was caused by her medical treatment for a urinary infection. Simply stated, the injury did not have its origin in, nor was it incidental to, the medical treatment for plaintiffs infection. The only connection between this treatment and plaintiffs injury is that, \u201cbut for\u201d being in the hospital for the treatment, she would not have been in the place where the alleged assault occurred.\nMoreover, to hold that plaintiffs injury did arise from patient care would be to conclude that criminal acts such as the alleged sexual assault at issue here have their origin in or are incidental to medical treatment. I do not believe the legislature, in drafting section 8 \u2014 101(b) of the Tort Immunity Act, intended criminal acts such as sexual assault to be included within the ambit of \u201cpatient care.\u201d As the appellate court below concluded:\n\u201cTo find [that the doctor\u2019s] 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.\u201d 396 Ill. App. 3d at 741.\nMindful of the maxim that courts \u201cmust presume that when the legislature enacted a law, it did not intend to produce absurd, inconvenient or unjust results\u201d (Brucker, 227 Ill. 2d at 514), I believe today\u2019s decision is consistent with both this court\u2019s precedent and, more important, the General Assembly\u2019s intent. For these reasons, and those expressed in today\u2019s opinion, I join in the court\u2019s decision.\nJUSTICES THOMAS and KARMEIER join in this special concurrence.", "type": "concurrence", "author": "JUSTICE FREEMAN," }, { "text": "JUSTICE GARMAN,\ndissenting:\nAs the majority points out, the \u201cultimate issue\u201d before this court is whether the plaintiffs complaint constitutes an \u201caction for damages for injury or death *** arising out of patient care\u201d within section 8 \u2014 101(b) of the Act. I agree with the majority that section 8 \u2014 101(b) should be given the same effect as the identical language of section 13 \u2014 212 of the Code of Civil Procedure, for all of the enumerated reasons. However, the majority\u2019s treatment of Brucker and Orlak is incomplete and overlooks both the spirit and the language of those cases. As a result, the majority today effectively applies a new standard that is a significant departure from our precedents and those of the appellate court. For these reasons, I respectfully dissent.\nAs the majority notes, this court first discussed the meaning of section 13 \u2014 212\u2019s \u201carising out of patient care\u201d language in Brucker v. Merc\u00f3la, 227 Ill. 2d 502 (2007). In my view, a full discussion of that case is warranted. There, Anna Brucker and her husband filed a two-count medical malpractice action against Dr. Joseph Merc\u00f3la and his practice. The complaint alleged that, while she was pregnant, Brucker sought advice from Dr. Merc\u00f3la regarding an allergy problem. Merc\u00f3la, a doctor of osteopathic medicine, prescribed an L-glutamine supplement. As a service to his patients, Mercola\u2019s office sold many nutritional supplements, including L-glutamine. Merc\u00f3la testified in his deposition that his customers were almost all patients, but that sometimes one of his patients would refer a friend or family member to make a purchase. When Brucker tried to purchase the L-glutamine from Merc\u00f3la, however, she was given a bottle that instead contained selenium. Later, it was discovered that one of Mercola\u2019s employees had accidentally filled several L-glutamine bottles with selenium, because the selenium was unlabeled in the storage room and left where L-glutamine was typically kept. Brucker followed Mercola\u2019s dosage instructions, believing the supplement to be L-glutamine, and she ingested a toxic dose of selenium. Brucker, 227 Ill. 2d at 506-09.\nWhile the action was pending, Brucker amended her complaint to include a third count, brought on behalf of her minor son, Robert Brucker. Count III alleged that Robert, with whom Anna was pregnant at the time of the incident, had been poisoned in \u00fatero when Anna ingested the selenium. The defendants moved to dismiss the amended count, however, arguing that it was barred by section 13 \u2014 212(b)\u2019s statute of repose. Id. Section 13\u2014 212(b) provides, in pertinent part:\n\u201cExcept as provided in Section 13 \u2014 215 of this Act, no 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 8 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 where the person entitled to bring the action was, at the time the cause of action accrued, under the age of 18 years ***.\u201d 735 ILCS 5/13 \u2014 212(b) (West 2006).\nThe plaintiffs acknowledged that count III had been filed more than eight years after the alleged injury to Robert, but they argued, inter alia, that the complaint was one alleging simple negligence, not an injury \u201carising out of patient care.\u201d\nIn beginning our analysis, this court noted that \u201cwhen a cause of action is filed against a physician or other covered medical provider, the legal theory upon which the plaintiff styles his or her claim will not govern whether section 13 \u2014 212 applies.\u201d Brucker, 227 Ill. 2d at 515. We referred to Hayes v. Mercy Hospital & Medical Center, 136 Ill. 2d 450 (1990), in which this court discussed the purpose and intent behind section 13 \u2014 212. In both Hayes and Brucker, the court acknowledged that the statute of repose was enacted in response to what the legislature viewed as a medical malpractice insurance crisis. The statute was \u201cviewed as necessary to prevent extended exposure of physicians and other hospital personnel to potential liability for their care and treatment of patients, thereby increasing an insurance company\u2019s ability to predict future liabilities. [Citation.] This increased ability to predict liability was meant to assist in reducing health-care malpractice insurance premiums.\u201d (Internal quotation marks omitted.) Brucker, 227 Ill. 2d at 515 (quoting Hayes, 136 Ill. 2d at 457-58). In Hayes, this court concluded that the legislative intent could be advanced only if the statute was read in such a way that it limited exposure to liability for injury or death arising out of patient care under all theories of liability. Hayes, 136 Ill. 2d at 459; see also Brucker, 227 Ill. 2d at 515-16.\nThe court in Brucker also contrasted section 13 \u2014 212 with section 2 \u2014 622 of the Code of Civil Procedure, which imposes various pleading requirements for \u201cany action, whether in tort, contract or otherwise, in which the plaintiff seeks damages for injuries or death by reason of medical, hospital, or other healing art malpractice.\u201d (Emphasis added.) 735 ILCS 5/2 \u2014 622(a) (West 2006); Brucker, 227 Ill. 2d at 516-17. We noted that section 13\u2014 212 is broader than section 2 \u2014 622, such that there are some actions to which section 13 \u2014 212 applies but section 2 \u2014 622 does not. As the court later explained, \u201call medical malpractice claims involve injuries arising out of patient care, but not all injuries arising out of patient care were by reason of medical malpractice.\u201d Id. at 516-17, 532. Therefore, the court did not consider the portions of the parties\u2019 arguments that debated whether the Bruckers\u2019 complaint alleged \u201cmalpractice.\u201d Id. at 518.\nHaving concluded that \u201carising out of patient care\u201d is not synonymous with \u201cmedical malpractice,\u201d we looked to the plain and established meaning of \u201carising out of\u2019:\n\u201cThe phrase \u2018arising out of has a set meaning in the law. In any context in which it is used, the phrase has been defined broadly and refers to a causal connection. Miller\u2019s definition of \u2018arising out of\u2019 as \u2018generally mean[ing] \u201coriginating from,\u201d \u201cgrowing out of,\u201d or \u201cflowing from\u201d \u2019 [citation] is consistent with definitions found in other authorities. Black\u2019s defines \u2018arise\u2019 as \u2018[t]o originate; to stem (from)\u2019 or \u2018[t]o result (from).\u2019 Black\u2019s Law Dictionary 115 (8th ed. 2004). Webster\u2019s defines \u2018arise\u2019 as \u2018to originate from a specified source.\u2019 Webster\u2019s Third New International Dictionary 117 (1993).\u201d Brucker, 227 Ill. 2d at 521-22.\nBecause \u201carising out of\u2019 has a \u201cset meaning in the law,\u201d we looked to how Illinois courts have construed that phrase in other contexts. Specifically, \u201c[t]he phrase \u2018arising out of is construed most often in workers\u2019 compensation proceedings.\u201d Brucker, 227 Ill. 2d at 521-22. The Workers\u2019 Compensation Act (820 ILCS 305/1 et seq. (West 2006)) provides compensation for injuries \u201carising out of and in the course of\u2019 employment. 820 ILCS 305/2 (West 2006). We noted that, in that context:\n\u201cThe \u2018arising out of component is primarily concerned with causal connection. To satisfy this requirement it must be shown that the injury 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. [Citation.] Stated otherwise, an injury arises out of one\u2019s employment if, at the time of the occurrence, the employee was performing acts he was instructed to perform by his employer, acts which he had a common law or statutory duty to perform, or acts which the employee might reasonably be expected to perform incident to his assigned duties. [Citations.] A risk is incidental to the employment where it belongs to or is connected with what an employee has to do in fulfilling his duties.\u201d (Internal quotation marks omitted.) Brucker, 227 Ill. 2d at 522 (quoting Sisbro, Inc. v. Industrial Comm\u2019n, 207 Ill. 2d 193, 203-04 (2003)).\nImportantly, we noted that \u201carising out of\u2019 does not encompass mere \u201cbut for\u201d causation under the Workers\u2019 Compensation Act. Thus, it is not sufficient to show only that an employee would not have been at the location of the injury but for his or her employment, nor is it sufficient to show only that the accident would not have occurred but for the fact that the employment placed the claimant in the position \u201cin which he was injured by a neutral (neither personal nor related to employment) force.\u201d Brucker, 221 Ill. 2d at 522-23 (citing USF Holland, Inc. v. Industrial Comm\u2019n, 357 Ill. App. 3d 798, 803 (2005)).\nWe acknowledged that in some other contexts, \u201carising out of\u201d has been linked with \u201cbut for\u201d causation. However, we noted that those contexts had generally used \u201carising out of\u2019 in conjunction with \u201crelating to\u201d and \u201cin connection with,\u201d such as in parts of the Pension Code {e.g., 40 ILCS 5/5 \u2014 227 (West 2006)), or they had involved insurance policies that must be construed broadly in favor of coverage (see, e.g., State Automobile Mutual Insurance Co. v. Kingsport Development, LLC, 364 Ill. App. 3d 946, 953-54 (2006)). Turning back to section 13 \u2014 212, the Brucker court rejected a definition of \u201carising out of\u2019 that equated to mere \u201cbut for\u201d causation:\n\u201cConsidering the above authorities, we construe \u2018arising out of patient care\u2019 simply as requiring a causal connection between the patient\u2019s medical care and the injury. While the phrase does not need to he construed so broadly as to encompass \u2018but for\u2019 causation, it clearly covers any injuries that have their origin in, or are incidental to, a patient\u2019s medical care and treatment. This court has been defining \u2018arising out of as referring to cause or origin since at least 1917 (see Eugene Dietzen Co. v. Industrial Board, 279 Ill. 11, 15 (1917) [(a workers\u2019 compensation case)]), so we should presume that the legislature was well aware of the judicial construction of this phrase when it used it in section 13 \u2014 212.\u201d Brucker, 227 Ill. 2d at 523-24.\nThus, in Brucker, this court adopted the same construction of \u201carising out of\u201d that courts in Illinois have used in workers\u2019 compensation proceedings for over 90 years. Indeed, the majority emphasized its reliance on workers\u2019 compensation proceedings when it responded to the specially concurring justices\u2019 alternative approaches, noting:\n\u201cThe specially concurring justices offer no explanation for why we should not presume that the legislature intended \u2018arising out of to have the same meaning always assigned to it. Moreover, in the workers\u2019 compensation context, this court has for years been construing the phrase to refer to cause or origin while not encompassing \u2018but for\u2019 causation, so the specially concurring justices\u2019 assertions that this is an unworkable test are not well-taken.\u201d Id. at 524 n.4.\nTurning to the facts in Brucker, we concluded that \u201cthere is no question\u201d that the Bruckers alleged an injury arising out of patient care. In rejecting the argument that the connection was mere \u201cbut for\u201d causation, the court opined, \u201cAnna 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. Merc\u00f3la sold to her to treat a medical condition that Dr. Merc\u00f3la had diagnosed.\u201d Id. at 524-25.\nOrlak v. Loyola University Health System, 228 Ill. 2d 1 (2007), decided the same day as Brucker, is also instructive. There, the plaintiffs complaint included counts alleging constructive fraud, medical negligence, medical battery, and ordinary negligence. Orlak, 228 Ill. 2d at 4-6. The counts all stemmed from the alleged failure of the defendant hospital, Loyola University Health System, to timely inform the plaintiff that she may have contracted hepatitis C from a blood transfusion years earlier. According to the complaint, the plaintiff was treated by Loyola in 1989 following a work-related accident, and during her hospitalization she was given a blood transfusion. At the time, no definitive test existed to determine the presence of viral hepatitis in blood. In 1990, Loyola contacted the plaintiff and recommended that she be tested for human immunodeficiency virus (HIV). Plaintiff was tested, and the test results were negative for HIV In 2000, the hospital again contacted the plaintiff and notified her that her blood donor had recently tested positive for the hepatitis C virus, and it urged her to be tested. The plaintiff tested positive for hepatitis C. Id.\nIn her ordinary negligence count, which was at issue before this court, the Orlak plaintiff claimed that Loyola knew or should have known by March 1997 that the plaintiff needed to be tested for hepatitis C. She alleged a continuing breach of duty for every day thereafter that the hospital failed to notify her. Id. at 5-6. Loyola argued that the plaintiffs complaint was barred in its entirety by section 13 \u2014 212. The circuit court dismissed the complaint, and the plaintiff appealed, arguing that her ordinary negligence claim was not \u201carising out of patient care.\u201d Id. at 6.\nThis court found that the ordinary negligence count did allege injuries \u201carising out of patient care,\u201d subject to the statute of repose in section 13 \u2014 212. In doing so, we rejected the plaintiffs argument that \u201cby using the phrase \u2018arising out of patient care,\u2019 the legislature intended the statute of repose to govern claims based on events that involve actual patient care.'\u201d (Emphasis added.) Id. at 9. As we had done in Brucker, we noted in Orlak, that the legislature intended \u201carising out of patient care\u201d to encompass a \u201cmuch broader range of claims\u201d than simple medical malpractice. Id. at 12. We further noted:\n\u201cIt is clear that the legislature intended the statute of repose to operate in a very broad manner and it has been interpreted in that manner by courts addressing the issue. The question is not whether the plaintiff has alleged medical negligence or ordinary negligence. Rather, the sole issue is whether the plaintiff\u2019s claim arose from patient care.\u201d Id. at 14.\nWe also relied on Brucker\u2019s definition of \u201carising out of patient care\u201d as \u201csimply requiring a causal connection between the patient\u2019s medical care and the injury,\u201d noting that it was not mere \u201cbut for\u201d causation, but \u201c \u2018clearly covers any injuries that have their origin in, or are incidental to, a patient\u2019s medical care and treatment.\u2019 \u201d Id. at 15 (quoting Brucker, 227 Ill. 2d at 523-24).\nApplying this construction to the facts of Orlak, we acknowledged that the plaintiffs allegation of failure to notify did \u201cnot involve the provision of medical care.\u201d Orlak, 228 Ill. 2d at 16. \u201cHowever,\u201d we held, \u201cthe omission itself cannot be viewed in a vacuum. Plaintiffs allegations of a duty to notify her and Loyola\u2019s 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.\u201d Id. at 16-17. We also reiterated that the purpose of the statute of repose in section 13 \u2014 212 is to curtail \u201cpotentially open-ended liability for health-care providers\u201d and \u201creduce the cost of medical malpractice insurance and to assure its continued availability to medical practitioners.\u201d Id. at 17. We noted, as we had in Brucker, that construing \u201carising out of patient care\u201d narrowly would be contrary to that purpose. Id.\nBoth Brucker and Orlak relied on three cases from our appellate court in reaching their conclusions, and those cases also inform my analysis. First, in Miller v. Tobin, 186 Ill. App. 3d 175 (1989), the plaintiff filed a claim alleging that a psychiatrist violated the Mental Health and Developmental Disabilities Confidentiality Act (now 740 ILCS 110/1 et seq. (West 2006)) when the psychiatrist revealed confidential information to the plaintiffs wife. Miller, 186 Ill. App. 3d at 176. The appellate court held that \u201carising out of\u2019 is \u201cbroad and generally means \u2018originating from,\u2019 \u2018growing out of,\u2019 or \u2018flowing from.\u2019 \u201d Id. at 177. The court also noted that section 13 \u2014 212 \u201cis a general limitations section designed to apply to all cases against physicians arising out of patient care.\u201d Id. Thus, the court found that because the plaintiff and his wife had consulted the psychiatrist for medical issues, and because the disclosure occurred as part of the wife\u2019s treatment, section 13 \u2014 212 applied to bar the claim. Id. at 178.\nIn Walsh v. Barry-Harlem, Corp., 272 Ill. App. 3d 418 (1995), the plaintiff brought a consumer fraud complaint, alleging that the doctor intentionally falsified test results and misrepresented that the plaintiff needed to have a cataract removed and a new lens implanted. Walsh, 272 Ill. App. 3d at 420-21. Although the count at issue did not include any injury caused by the actual surgery, the court nonetheless held that it was \u201carising out of patient care,\u201d noting that \u201cthe plaintiffs allegations of misconduct were inextricable from the defendants\u2019 diagnosis and treatment of his eyes.\u201d Id. at 425.\nFinally, in Cammon v. West Suburban Hospital Medical Center, 301 Ill. App. 3d 939 (1998), the plaintiff sought damages for the death of her husband following surgery. Although her complaint contained several counts alleging medical malpractice, count V of the complaint alleged spoliation of evidence based on the hospital\u2019s destruction of certain records related to the incident. The trial court dismissed count V as time-barred under section 13 \u2014 212(a), but the appellate court reversed, citing Miller. Common, 301 Ill. App. 3d at 950. This court in Brucker questioned Common\u2019s analysis, which focused on the breach of duty alleged by the plaintiff rather than whether the complaint alleged an injury that originated from, grew out of, or flowed from her husband\u2019s care and treatment, but we opined, \u201c[rjegardless of whether Common\u2019s duty analysis was appropriate, however, its conclusion was unquestionably correct. Destroying her husband\u2019s operative report after the fact was not part of the care and treatment that the doctor and hospital provided to the plaintiffs husband. The injury that the plaintiff suffered was to her ability to prove her lawsuit, and that injury did not arise out of patient care.\u201d Brucker, 227 Ill. 2d at 521.\nBrucker, Orlak, and the appellate court cases cited therein make it clear that \u201carising out of patient care\u201d is given broad effect in Illinois. Although it does not mean mere \u201cbut for\u201d causation, it is not limited to allegations that a medical practitioner breached a medical standard of care, nor is it limited to injuries caused directly by the treatment of a patient. Thus, injuries caused by the mistake of a non-medically-trained assistant in selling nutritional supplements (as in Brucker), by the failure of a hospital to notify a former patient of the need for testing (as in Orlak), by the disclosure of confidential information during the treatment of another patient (as in Miller), or by the deliberate falsification of test results (as in Walsh) have all been deemed to be \u201carising out of patient care.\u201d As we have stated, the standard incorporates \u201cany injuries that have their origin in, or are incidental to, a patient\u2019s medical care and treatment.\u201d Orlak, 228 Ill. 2d at 15; Brucker, 227 Ill. 2d at 523-24.\nAlthough the majority acknowledges our broad interpretation of \u201carising out of patient care,\u201d it nonetheless concludes that plaintiffs injuries in this case do not arise out of patient care because \u201cKaufmann\u2019s injury arose out of Dr. Schroeder\u2019s sexual assault and not any medical care she received from him.\u201d 241 Ill. 2d at 201. This conclusion overlooks the fact that the alleged sexual assault undoubtedly had its \u201corigin in\u201d or was \u201cincidental to\u201d Schroeder\u2019s medical care and treatment of plaintiff. Schroeder was Kaufmann\u2019s obstetrician-gynecologist, whom Kaufmann consulted during her pregnancy. As part of her care and treatment, Kaufmann was hospitalized, and during her hospitalization, she was treated by Schroeder. According to her complaint, Schroeder sedated plaintiff \u201cduring an unnecessary exam and/or procedure which did not require sedation.\u201d It was only then, while plaintiff was hospitalized and sedated, that the alleged sexual assault occurred, perpetrated by the doctor who performed the allegedly unnecessary exam.\nCritically, Kaufmann was not injured by a doctor or patient who simply happened across her during her hospitalization. She was not the victim of a random criminal attack that coincidentally occurred while she was at the hospital. This is not a case of mere \u201cbut for\u201d causation. If, as the concurring justices suggest, the only connection between her patient care and her injury was that \u201c \u2018but for\u2019 being in the hospital for the treatment, she would not have been in the place where the alleged assault occurred\u201d (241 Ill. 2d at 203 (Freeman, J., specially concurring, joined by Thomas and Karmeier, JJ.)), I would agree that her injuries were not arising out of patient care. But that is not the case before us. According to Kaufmann\u2019s complaint, Schroeder consulted with Kaufmann as part of Kaufmann\u2019s patient care. He diagnosed a urinary problem as part of her patient care. He hospitalized her as part of her patient care. He informed her that an examination was necessary as part of her patient care, and he sedated her under the guise of her patient care. The whole of Schroeder\u2019s control over plaintiff and his ability to commit the allegedly deviant sexual acts were a direct result of his actual and pretextual treatment of her, and her injuries flowing from those acts are injuries \u201carising out of patient care.\u201d\nThe majority notes that \u201c[t]he sexual assault, itself, was not medical care, nor was there even any pretense that Dr. Schroeder\u2019s sexual acts were necessitated by, or in any way related to, the medical care he was providing to Kaufmann.\u201d 241 Ill. 2d at 201. However, as we held in Orlak, the acts or omissions alleged to have caused the injury \u201ccannot be viewed in a vacuum\u201d (Orlak, 228 Ill. 2d at 16-17), and we have consistently rejected such a narrow view of a plaintiffs complaint. In Brucker, we rejected the plaintiffs argument that the mislabeling of nutritional supplements for sale was not patient care, holding that the plaintiff was injured because she accepted a prescription from Dr. Merc\u00f3la as part of her treatment and she followed his instructions with regard to that prescription. In Orlak, we rejected the plaintiffs argument that a violation, eight years after her treatment had ended, of an ongoing administrative duty to notify her was not \u201carising out of patient care,\u201d holding that the duty to notify arose only because she had earlier received a blood transfusion as part of her treatment. In Walsh, which we endorsed in both Brucker and Orlak, the court rejected the plaintiffs argument that the falsification of test results perpetrated to justify the performance and billing of a medically unnecessary procedure was not \u201carising out of patient care,\u201d holding that because the plaintiff had consulted the defendants for eyecare, the fraud was \u201cinextricable\u201d from his care and treatment.\nIn each of these cases, this court refused to narrow its analysis of the plaintiffs\u2019 claims to include only the particular act or omission alleged to have caused the injury, instead examining the totality of the circumstances leading to the injury to determine whether it had its \u201corigin in\u201d or was \u201cincidental to\u201d the patient\u2019s care and treatment. Yet in this case, the majority simply concludes that \u201c[t]he sexual assault, itself, was not medical care.\u201d If this alone is enough to remove an injury from the statute of repose in section 13 \u2014 212, Brucker should be reversed because the labeling and sale of nutritional supplements, itself, was not medical care. Under the rule as the majority today applies it, Orlak, Miller, and Walsh are all likewise of questionable continuing validity.\nFinally, I note that even if I agreed with the majority\u2019s conclusion that the sexual assault of Kaufmann can be divorced from its circumstances and was not incidental to her treatment, several of plaintiff\u2019s counts against Jersey Community Hospital should nonetheless be considered \u201carising out of patient care.\u201d In her amended complaint, plaintiff seeks damages not only for the battery, but for vicarious liability for the unnecessary sedation, unnecessary medication, unnecessary exam or procedure, and lack of informed consent for that procedure that she alleges preceded the battery. Even under the majority\u2019s narrow view of \u201carising out of patient care,\u201d these acts, unlike sexual assault, are all \u201cmedical care\u201d in and of themselves. However, the majority dismisses plaintiffs argument on these points, opining that \u201cthe harm resulted from the sexual assault,\u201d and the unnecessary medical treatment was \u201csimply a means by which Schroeder was able to accomplish his sexual assault on Kaufmann.\u201d 241 Ill. 2d at 201. According to the majority, then, it is the motives of the physician that determine whether the acts are \u201carising out of patient care.\u201d Under such a rule, the same intentional acts alleged by the same plaintiff under the same circumstances may have different results depending on the mental state of the actor. The problems with this approach are manifest. For example, taken together with Walsh, this conclusion means that if Schroeder had performed the unnecessary procedure so that he could illegally bill Kaufmann for the service, as was the allegation in Walsh, then his acts would be \u201carising out of patient care,\u201d but because he allegedly performed them so that he could assault her, they are not.\nIn summary, the majority\u2019s holding in this case represents a striking and inexplicable departure from our established precedents in Brucker and Orlak, as well as those of the appellate court. By focusing exclusively on the particular mechanism of the injury, something we have consistently refused to do, the majority reaches a result that contravenes the legislative intent that section 13 \u2014 212 be construed broadly, an intent we have repeatedly reaffirmed. Where, as here, the plaintiffs injury occurred during the course of treatment and at the hands of the doctor performing that treatment, I would hold that it was \u201carising out of patient care.\u201d For these reasons, I respectfully dissent.\nCHIEF JUSTICE KILBRIDE joins in this dissent.", "type": "dissent", "author": "JUSTICE GARMAN," } ], "attorneys": [ "Jacqueline Brandenburg-Rees, of Brandenburg-Rees & Rees, of Chicago, for appellant.", "Judith C. Brostron and Tricia J. Mueller, of Lashly & Baer, P.C., of St. Louis, Missouri, for appellee." ], "corrections": "", "head_matter": "(No. 109738.\nKRISTEN KAUFMANN, Appellant, v. ROGER A. SCHROEDER, M.D., et al. (Jersey Community Hospital, a Municipal Corporation, Appellee).\nOpinion filed February 25, 2011.\nJacqueline Brandenburg-Rees, of Brandenburg-Rees & Rees, of Chicago, for appellant.\nJudith C. Brostron and Tricia J. Mueller, of Lashly & Baer, P.C., of St. Louis, Missouri, for appellee." }, "file_name": "0194-01", "first_page_order": 204, "last_page_order": 227 }