Bradley v. Sandoz Nutrition Corp.

• Decision Date: 14 July 1995
• Docket Number: No. 1-94-1416,1-94-1416
• Citation: 274 Ill.App.3d 381,210 Ill.Dec. 663,653 N.E.2d 858
• Parties: , 210 Ill.Dec. 663 John Michael BRADLEY, Special Administrator of the Estate of Greta Bradley, deceased, Plaintiff, v. SANDOZ NUTRITION CORPORATION et al., Defendants (Sandoz Nutrition Corporation, Third-Party Plaintiff-Appellant; Parkside Human Services, Inc. et al., Third-Party Defendants- Appellees).
• Court: United States Appellate Court of Illinois

Page 858

653 N.E.2d 858

274 Ill.App.3d 381, 210 Ill.Dec. 663

John Michael BRADLEY, Special Administrator of the Estate of Greta Bradley, deceased, Plaintiff, v. SANDOZ NUTRITION CORPORATION et al., Defendants (Sandoz Nutrition Corporation, Third-Party Plaintiff-Appellant; Parkside Human Services, Inc. et al Third-Party Defendants- Appellees).

No. 1-94-1416.

Appellate Court of Illinois First District, Sixth Division.

July 14, 1995.

Oppenheimer, Wolff & Donnelly, Chicago, for appellants (David C. Bohrer and M. Thaddeus Murphy, of counsel).

Cassiday, Schade & Gloor, Chicago, for appellees (Rudolf G. Schade, Jr. and Sandra E. Kupelian, of counsel).

Justice RAKOWSKI delivered the opinion of the court:

This is a wrongful death action which allegedly arises out of the participation of the decedent, Greta Bradley, in a medically supervised weight management program. John Bradley (plaintiff), administrator of the decedent's estate, filed a fourth amended complaint (complaint) seeking damages from Sandoz Nutrition Corporation (Sandoz), the manufacturer of the nutritional supplement prescribed during the program, and Dr. Ralph Napolitano, the decedent's treating physician. Seeking contribution, Sandoz filed a cross-claim against Dr. Napolitano and a third-party complaint against Parkside Human Services, Inc. and Lutheran General Hospital (collectively referred to as Lutheran General), the health services corporations responsible for the operation of the program and the health and welfare of the participants. The trial court dismissed the third-party complaint as untimely, and this appeal was taken pursuant to Supreme Court Rule 304(a) (134 Ill.2d R. 304(a)). The issue on appeal is whether Sandoz timely filed its third-party complaint for contribution against Lutheran General.

The original complaint in this wrongful death action was filed on November 15, 1990, naming Sandoz and Lutheran General as party defendants. At that time, plaintiff's sole legal theory was that Sandoz and Lutheran General were strictly liable in tort based upon their alleged manufacture and distribution of the Optifast weight management program and nutritional supplement. The complaint was amended twice in response to motions to strike filed by Sandoz. As of the third-amended complaint, filed on February 7, 1991, no new parties were added and plaintiff's legal theory was still limited to strict liability.

Plaintiff was granted leave to file a fourth amended complaint on May 23, 1991, which Sandoz answered on July 1, 1991. The fourth amended complaint added both a new defendant, Dr. Ralph Napolitano, and a new legal theory, medical malpractice. Plaintiff alleged that Dr. Napolitano committed malpractice by allowing the decedent to lose weight at a rapid rate after two electrocardiographic recordings documented QT interval prolongations. Plaintiff's complaint was supported by a letter from plaintiff's consultant identifying specific electrocardiogram (EKG) tests and related records. This was the first reference made by the plaintiff to Dr. Napolitano's negligent monitoring of the decedent's EKG readings as an alleged cause of the decedent's injuries.

On July 30, 1991, Sandoz brought a motion to compel the plaintiff to comply with Sandoz's previously filed interrogatories and requests for production. (Written discovery requests were originally filed on January 4, 1991.) The motion was granted on August 6, 1991. On September 4, 1991, the plaintiff produced the decedent's medical records including the EKG readings referenced in the fourth amended complaint.

Sandoz then reviewed the records with its consulting experts, and as a result, concluded that both Dr. Napolitano and Lutheran General failed to properly interpret the decedent's EKG tests and consequently allowed the decedent to lose too much weight for too long a period of time without receiving sufficient caloric intake.

On June 4, 1993, Sandoz was granted leave and filed a cross-claim for contribution against Dr. Napolitano and a third-party complaint for contribution against Lutheran General. (Lutheran General was dismissed without prejudice from the plaintiff's case-in-chief on November 23, 1992, based upon Lutheran General's certification of Sandoz as the manufacturer of the product identified by the plaintiff in his complaint.) Lutheran General moved to dismiss Sandoz's third-party complaint as time-barred under Section 13-212 of the Illinois Code of Civil Procedure (735 ILCS 5/13-212 (West 1992)), which the trial court granted. Section 13-212 provides in relevant part:

"[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."

Sandoz first contends that the medical malpractice statute is not applicable to its third-party complaint and that its complaint was timely pursuant to Section 5 of the Contribution Act (740 ILCS 100/5 (West 1992)) and the interpretation of the statutory language in Laue v. Leifheit (1984), 105 Ill.2d 191, 196, 85 Ill.Dec. 340, 473 N.E.2d 939, Section 5 provides "A cause of action for contribution among joint tortfeasors may be asserted by a separate action before or after payment, by counterclaim or by third-party complaint in a pending action."

In Laue, the court interpreted Section 5 as providing that a contribution claim may be asserted by a "separate action before or after payment" where no suit is pending, but when there is an action pending, the contribution claim must be asserted by counterclaim or third-party claim in that action. Laue, 105 Ill.2d at 196, 85 Ill.Dec. 340, 473 N.E.2d 939.

Sandoz argues that the filing of its third-party complaint was timely under the principles set forth in Laue because it filed its contribution claim during the pendency of the underlying action. However, Laue established a procedural requirement that an action for contribution must be filed during the pendency of the underlying direct action. The decision does not hold that all actions for contribution brought within the time that an underlying suit is pending are timely. Hayes v. Mercy Hospital & Medical Center (1990), 136 Ill.2d 450, 460, 145 Ill.Dec. 894, 557 N.E.2d 873.

In Hayes, the court applied the 4 year repose portion of Section 13-212(a) to determine whether a third-party claim for contribution was timely filed. The Hayes court stated that:

"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." (Hayes, 136 Ill.2d at 457, 145 Ill.Dec. 894, 557 N.E.2d 873.)

The Hayes court thus concluded that an action for contribution was an "action for damages" under the medical malpractice statute of repose. (Hayes, 136 Ill.2d at 457, 145 Ill.Dec. 894, 557 N.E.2d 873.) (See also Vogt v. Corbett (1990), 138 Ill.2d 482, 150 Ill.Dec. 560, 563 N.E.2d 447; Clardy v. Rapistan Division of Lear Siegler (1993), 254 Ill.App.3d 1066, 194 Ill.Dec. 133, 627 N.E.2d 249.) Also noted by the Hayes court was the fact that the enactment of the medical malpractice statute was a response by the General Assembly to a perceived medical malpractice insurance crisis. Because a suit for contribution against an insured for damages arising out of patient care exposes insurance companies to the same liability as in the underlying action, the term "or otherwise" in the medical malpractice statute includes actions for contribution against a physician for injuries arising out of patient care.

We do not find any merit in Sandoz's attempt to distinguish Hayes because it involved the repose portion of the statute. The reasoning in Hayes applies equally to the limitations section. Accordingly, Sandoz's third-party claim for contribution is an action for damages against a physician and hospital. Therefore, the applicable statute of limitations is the two year time period found in Section 13-212(a).

Having determined the statute of limitations applicable to the contribution claim, we next address the question of when the statute began to run. Sandoz contends that assuming that the medical malpractice statute of limitations is applicable to its third-party complaint, it should be able to utilize the discovery rule which is set forth in the statute. Sandoz argues that the statute did not begin to run until September 4, 1991,...