Gavlin v. Adventist Bolingbrook Hosp.

• Docket Number: Appeal No. 3-20-0282
• Decision Date: 03 January 2022
• Citation: Gavlin v. Adventist Bolingbrook Hosp., 2022 IL App (3d) 200282, 196 N.E.3d 1141 (Ill. App. 2022)
• Parties: Linda GAVLIN, as Special Administrator of the Estate of Jennifer Andrules, a disabled person, Plaintiff-Appellee, v. ADVENTIST BOLINGBROOK HOSPITAL, d/b/a Amita Health Adventist Medical Center, Bolingbrook, and Lakewood Nursing and Rehabilitation Center, LLC, Defendants (Lakewood Nursing and Rehabilitation Center, LLC, Defendant-Appellant).
• Court: Appellate Court of Illinois

2022 IL App (3d) 200282

196 N.E.3d 1141

Linda GAVLIN, as Special Administrator of the Estate of Jennifer Andrules, a disabled person, Plaintiff-Appellee,

v.ADVENTIST BOLINGBROOK HOSPITAL, d/b/a Amita Health Adventist Medical Center, Bolingbrook, and Lakewood Nursing and Rehabilitation Center, LLC, Defendants

(Lakewood Nursing and Rehabilitation Center, LLC, Defendant-Appellant).

Appeal No. 3-20-0282

Appellate Court of Illinois, Third District.

Opinion Filed January 3, 2022

Omar Fayez and Colin Foster, of Huston, May & Fayez LLC, of Chicago, for appellant.

Jerome Vinkler, of Vinkler Law Offices Ltd., and Kelsey J. Burge, law school graduate, both of Burr Ridge, for appellee.

JUSTICE LYTTON delivered the judgment of the court, with opinion.

¶ 1 In 2016, plaintiff Linda Gavlin, as special administrator of the estate of Jennifer Andrules, filed suit against defendant Adventist Bolingbrook Hospital, doing business as Amita Health Adventist Medical Center, Bolingbrook (Adventist), alleging medical negligence. In 2019, plaintiff filed an amended two-count complaint, alleging medical negligence against Adventist and a new defendant, Lakewood Nursing and Rehabilitation Center, LLC (Lakewood). Lakewood filed a motion to dismiss, asserting that the claim against it was untimely. The trial court initially granted Lakewood's motion but later reversed its decision. The court then certified a question for interlocutory review. Lakewood filed an application for interlocutory appeal, which we granted. We answer the certified question in the negative and remand for further proceedings.

¶ 2 BACKGROUND

¶ 3 Jennifer Andrules is a disabled person. On May 16, 2014, Andrules was taken to Adventist for a medical evaluation. While at Adventist, Andrules suffered a fall, which resulted in a fracture to the right femoral head of her right leg. Andrules underwent surgery for that injury.

¶ 4 On May 22, 2014, Andrules was discharged from Adventist and admitted to Lakewood. On June 3, 2014, Andrules suffered a fall at Lakewood and fractured her right leg, necessitating a second surgery on that leg.

¶ 5 On May 2, 2016, Northern Trust, as special administrator of Andrules's estate, filed a complaint against Adventist, alleging medical negligence. The "Certificate of Merit of Reviewing Physician" attached to the complaint addressed Andrules's first fall at Adventist and also referred to Andrules's "second fall" at Lakewood. On May 18, 2018, the director of nursing at Lakewood, Barbara Braun, was deposed and testified about Andrules's June 3, 2014, fall at Lakewood.

¶ 6 On February 11, 2019, Linda Gavlin, as special administrator of Andrules's estate, filed a third-amended, two-count complaint. Count I alleged medical negligence against Adventist, and count II alleged medical negligence against Lakewood. The reviewing physician's certificate alleged: "Lakewood and its staff were negligent in their care and treatment of Jenny Andrules resulting in her fall on June 3, 2014, necessitating a second more extensive surgery, with pain, disability and damages some of which will remain permanent and continue for the rest of her life and increased living costs and expenses ***."

¶ 7 Lakewood filed a motion to dismiss count II of the third-amended complaint, arguing that the allegations against it were untimely. The trial court initially granted Lakewood's motion to dismiss. Gavlin filed a motion to reconsider, which the trial court granted, reversing its earlier ruling and denying Lakewood's motion to dismiss. The court's order stated: "Lakewood may file an interlocutory appeal pursuant to [Supreme Court Rule] 308 and shall submit proposed certified questions to Plaintiff for review and possible agreement ***."

¶ 8 Lakewood filed a "Motion to Approve Certified Question Pursuant to [Illinois Supreme Court Rule] 308," and Gavlin filed a motion objecting to interlocutory appeal and Lakewood's certified question. Following a hearing, the trial court denied Gavlin's motion and granted Lakewood's motion. The trial court approved the following certified question for interlocutory appeal:

"Does Plaintiff's removal of the disability tolling statute ( 735 ILCS 5/13-211 ) by filing a Complaint against Joint Tortfeasor A, act as a removal of the disability tolling statute as to Joint Tortfeasor B, if Plaintiff pled actual knowledge of Joint Tortfeasor B's involvement?"

Lakewood filed an application for leave to appeal with this court, which we granted.

¶ 9 ANALYSIS

¶ 10 Rule 308(a) provides:

"When the trial court, in making an interlocutory order not otherwise appealable, finds that the order involves a question of law as to which there is substantial ground for difference of opinion and that an immediate appeal from the order may materially advance the ultimate termination of the litigation, the court shall so state in writing, identifying the question of law involved. Such a statement may be made at the time of the entry of the order or thereafter on the court's own motion or on motion of any party. The Appellate Court may thereupon in its discretion allow an appeal from the order." Ill. S. Ct. R. 308(a) (eff. Oct. 1, 2019).

The scope of review in an interlocutory appeal under Rule 308 is limited to the question certified by the trial court, which, because it is a question of law, is reviewed de novo. Moore v. Chicago Park District , 2012 IL 112788, ¶ 9, 365 Ill.Dec. 547, 978 N.E.2d 1050.

¶ 11 Here, the certified question requires us to examine the interplay between the statutes of limitations and repose for medical negligence actions ( 735 ILCS 5/13-212(a) (West 2018)) and the disability tolling statutes ( 735 ILCS 5/13-211(a), 212(c) (West 2018)). Section 13-212(a) of the Code of Civil Procedure (Code) is "bifurcated, providing both a statute of limitations and a statute of repose" for medical negligence actions.

Kanne v. Bulkley , 306 Ill. App. 3d 1036, 1040, 240 Ill.Dec. 97, 715 N.E.2d 784 (1999). It provides in pertinent 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, *** 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." 735 ILCS 5/13-212(a) (West 2018).

¶ 12 The medical negligence statute of limitations "has been read within the context of the ‘discovery rule’ to mean that the two-year malpractice limitations period begins to run when the party ‘knows or reasonably should know of his injury and also knows or reasonably should know that it was wrongfully caused.’ " Young v. McKiegue , 303 Ill. App. 3d 380, 387, 236 Ill.Dec. 907, 708 N.E.2d 493 (1999). The purpose of a statute of repose is "to curtail the ‘long tail’ of liability that may result from the discovery rule." Snyder v. Heidelberger , 2011 IL 111052, ¶ 10, 352 Ill.Dec. 176, 953 N.E.2d 415. A statute of repose places "a cap on the applicability of the discovery rule so that the outer limit terminates the possibility of liability after a definite period of time, regardless of a potential plaintiff's lack of knowledge of his cause of action." Serafin v. Seith , 284 Ill. App. 3d 577, 588, 219 Ill.Dec. 794, 672 N.E.2d 302 (1996).

¶ 13 Sections 13-211(a) and 13-212(c) of the Code constitute tolling provisions applicable in negligence actions. Section 13-211(a) applies to general negligence actions and provides: "If the person entitled to bring an action ***, at the time the cause of action accrued, is *** under a legal disability, then he or she may bring the action within 2 years after *** the disability is removed." 735 ILCS 5/13-211(a) (West 2018). Section 13-212(c), which applies to medical negligence claims, provides: "If the person entitled to bring an action described in this Section is, at the time the cause of action accrued, under a legal disability other than being under the age of 18 years, then the period of limitations does not begin to run until the disability is removed." Id. § 13-212(c) (West 2018).

¶ 14 Disability tolling statutes apply to both statutes of limitations and statutes of repose. See Brucker v. Mercola , 227 Ill. 2d 502, 550-51, 319 Ill.Dec. 543, 886 N.E.2d 306 (2007) ; DeLuna v. Burciaga , 223 Ill. 2d 49, 65, 306 Ill.Dec. 136, 857 N.E.2d 229 (2006) ; Bruso v. Alexian Brothers Hospital , 178 Ill. 2d 445, 452-53, 227 Ill.Dec. 532, 687 N.E.2d 1014 (1997). When a plaintiff in a medical negligence action is under a legal disability, such as mental incompetency, the action is subject to the tolling provision of section 13-212 and not the repose period. See 735 ILCS 5/13-212 (West 2018) ; Bruso , 178 Ill. 2d at 461, 227 Ill.Dec. 532, 687 N.E.2d 1014.

¶ 15 Disability tolling provisions are necessary to protect the interests of mentally disabled people and preserve their day in court until they are able to bring suit on their own. See Fess v. Parke, Davis & Co. , 113 Ill. App. 3d 133, 135, 68 Ill.Dec. 858, 446 N.E.2d 1255 (1983). Through tolling statutes, Illinois courts have "repeatedly protected the rights of those under a disability when a cause of action arose."

Mickiewicz v. Generations at Regency, LLC , 2020 IL App (1st) 181771, ¶ 22, 442 Ill.Dec. 557, 160 N.E.3d 130. Tolling statutes also uphold the policy that protects minors and disabled people "from being deprived of an adjudication of their rights through no fault of their own." Girman v. County of Cook , 103 Ill. App. 3d 897, 900, 59 Ill.Dec. 534, 431 N.E.2d 1291 (1981).

¶ 16 "Illinois law has long recognized that incompetents are favored...