Orlak v. Loyola University Health System

• Decision Date: 28 December 2007
• Docket Number: No. 102534.,102534.
• Parties: Diane ORLAK, Appellant, v. LOYOLA UNIVERSITY HEALTH SYSTEM et al., Appellees.
• Court: Illinois Supreme Court

885 N.E.2d 999

228 Ill.2d 1

Diane ORLAK, Appellant, v. LOYOLA UNIVERSITY HEALTH SYSTEM et al., Appellees.

No. 102534.

Supreme Court of Illinois.

December 28, 2007.

Richard J. Prendergast, Chicago (Michael T. Layden, of counsel), for appellant.

Eugene A. Schoon, Tamar B. Kelber, Amy D. McBride, Elizabeth C. Scott, of Sidley Austin LLP, Chicago, for appellee Loyola University Health System.

OPINION

Justice GARMAN delivered the judgment of the court, with opinion:

In July 2002, plaintiff, Diane Orlak, sued defendant Loyola University Health System (Loyola) in the circuit court of Cook County, alleging that Loyola was liable to her for an alleged failure to notify her in a timely manner that she may have contracted hepatitis C (HCV) from a blood transfusion that she received in 1989 during hospitalization for injuries sustained in an accident. The circuit court granted Loyola's motion to dismiss, finding that plaintiff's action was barred by the statute of repose contained in section 13-212(a) of the Code of Civil Procedure (Code) (735 ILCS 5/13-212(a) (West 2002)). The appellate court affirmed (No. 1-04-0401 (unpublished order under Supreme Court Rule 23)) and we granted plaintiff's petition for leave to appeal (210 Ill.2d R. 315).

BACKGROUND

Plaintiff was hospitalized at Foster G. McGaw Hospital in Maywood, Illinois, in April and May 1989, for burns suffered during a work-related accident. During the course of her hospitalization, plaintiff was given a blood transfusion. Because plaintiff was unconscious at the time, her mother signed a consent form for the transfusion. That form stated in part, "In making such request and in giving such consent, I hereby acknowledge that I have been informed that there is no known definitive test for the determination of the existence or non-existence of viral hepatitis in blood and that I fully understand that the transfusion or administration of blood or blood components to me may result in viral hepatitis or other untoward reactions." Sometime in 1990, Loyola advised plaintiff to be tested for the presence of the human immunodeficiency virus (HIV). Plaintiff underwent testing and tested negative for the presence of the virus. In August 2000, Loyola notified plaintiff by letter that she should be tested for HCV because her blood donor had recently tested positive for the virus. After being tested, plaintiff learned that the test was positive for HCV.

In her third amended complaint, plaintiff alleged that following Loyola's advice to her in 1990 to be tested for HIV, she reasonably believed that, after testing negative for that virus, the blood she had received was safe and free from deadly disease. She also took issue with Loyola's statement in its August 2000 letter that at the time she received her blood transfusion, no reliable tests for HCV were available. She alleged that in 1996, the Food and Drug Administration (FDA) issued a memorandum to hospitals advising them to notify patients who received blood transfusions prior to 1992 to be tested for the presence of HCV. Plaintiff also alleged that in 1997 the National Institutes of Health (NIH) published a "Consensus Development Conference Statement," which found that HCV progresses at a slow rate with no symptoms in the majority of patients during the first 20 years after infection. The NIH also found that HCV patients who consume alcoholic beverages are at greater risk of rapidly developing cirrhosis of the liver and end-stage liver disease. The NIH recommended that individuals who had received blood transfusions prior to 1990 should be tested for HCV. According to plaintiff, the NIH report was posted on the Internet in April 1997 and was published in the Journal of Hepatology in September 1997.

Plaintiff's complaint contained counts alleging constructive fraud, medical negligence, medical battery, and ordinary negligence. In count I, for constructive fraud, plaintiff alleged that Loyola's failure to inform her of the need to be tested for HCV at the time it advised her to be tested for HIV lulled her into a false sense of security that the blood she had received was free of disease. She alleged that her reliance in that regard was justifiable and reasonable. In count IV, for ordinary negligence, plaintiff alleged that in 1996 and 1997 Loyola knew or should have known of the need for plaintiff to be tested for HCV and that, beginning in 1996, or at the latest in March 1997, Loyola owed plaintiff a duty of reasonable care to notify her that she had potentially contracted HCV through her blood transfusion and that she needed to be tested. Plaintiff also alleged that for every day thereafter that the duty existed, Loyola continued to breach its duty of care by failing to notify plaintiff of the potential for infection and the need to be tested.

Loyola filed a motion to dismiss all counts (735 ILCS 5/2-619(a)(5) (West 2002)) on the ground that plaintiff's action was time-barred. Loyola argued that plaintiff's cause of action arose out of patient care stemming from her 1989 hospitalization and blood transfusion. Thus, the medical malpractice statute of repose (735 ILCS 5/13-212(a) (West 2002)) was applicable. Loyola argued that this applied as well to plaintiff's claims for constructive fraud and ordinary negligence. The circuit court agreed and dismissed plaintiff's complaint with prejudice.

The appellate court affirmed. With respect to plaintiff's ordinary negligence claim, the court rejected her argument that because she was no longer a patient and she challenged only the failure to timely give notice of the need for testing, her cause of action did not arise out of patient care. The appellate court also rejected plaintiff's constructive fraud and equitable estoppel claims. No. 1-04-0401 (unpublished order under Supreme Court Rule 23).

ANALYSIS

I

A motion to dismiss under section 2-619 of the Code admits the legal sufficiency of the complaint, but asserts some affirmative matter that defeats the claim. King v. First Capital Financial Services Corp., 215 Ill.2d 1, 12, 293 Ill.Dec. 657, 828 N.E.2d 1155 (2005). In ruling on the motion, the circuit court must interpret all pleadings and supporting documents in the light most favorable to the nonmoving party. Borowiec v. Gateway 2000, Inc., 209 Ill.2d 376, 383, 283 Ill.Dec. 669, 808 N.E.2d 957 (2004). Our standard of review in this appeal is de novo. DeSmet v. County of Rock Island, 219 Ill.2d 497, 504, 302 Ill.Dec. 466, 848 N.E.2d 1030 (2006).

II

Plaintiff argues that the circuit and appellate courts erred in holding that the four-year medical malpractice statute of repose applies to bar her claim for ordinary negligence. That statute provides in part:

"Except as provided in Section 13-215 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 2 years after the date on which the claimant knew, or through the use of reasonable diligence should have known, or received notice in writing of the existence of the injury or death for which damages are sought in the action, whichever of such date occurs first, but in no event shall such action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in such action to have been the cause of such injury or death." (Emphasis added.) 735 ILCS 5/13-212(a) (West 2002).

This statute contains both a two-year period of limitations and a four-year period of repose. The two-year limitations period is triggered by the plaintiff's discovery of the injury; in contrast, the four-year repose period is triggered by the occurrence of the act or omission that caused the injury. The only exception to the four-year statute of repose is the fraudulent-concealment exception contained in section 13-215 of the Code (735 ILCS 5/13-215 (West 2002)). The statute of repose sometimes bars actions even before the plaintiff has discovered the injury. While this may result in harsh consequences, the legislature enacted the statute of repose for the specific purpose of curtailing the "long tail" exposure to medical malpractice claims brought about by the advent of the discovery rule. Anderson v. Wagner, 79 Ill.2d 295, 312, 37 Ill.Dec. 558, 402 N.E.2d 560 (1979).

Only claims "arising out of patient care" are affected by the medical malpractice statute of repose. Our analysis of this issue is governed by familiar principles of statutory construction. The cardinal rule of statutory construction is to ascertain and give effect to the intent of the legislature. Murray v. Chicago Youth Center, 224 Ill.2d 213, 235, 309 Ill.Dec. 310, 864 N.E.2d 176 (2007). That intent is best gleaned from the words of the statute itself, and where the statutory language is clear and unambiguous, it must be given effect. General Motors Corp. v. State of Illinois Motor Vehicle Review Board, 224 Ill.2d 1, 13, 308 Ill.Dec. 611, 862 N.E.2d 209 (2007). A court should interpret a statute, where possible, according to the plain and ordinary meaning of the language used. Paris v. Feder, 179 Ill.2d 173, 177, 227 Ill.Dec. 800, 688 N.E.2d 137 (1997). In determining the plain meaning of a statute's terms, we consider the statute in its entirety, keeping in mind the subject it addresses, and the apparent intent of the legislature in enacting the statute. People v. Perry, 224 Ill.2d 312, 323, 309 Ill.Dec. 330, 864 N.E.2d 196 (2007). Issues of statutory construction are reviewed de novo. Paris, 179 Ill.2d at 177-78, 227 Ill.Dec. 800, 688 N.E.2d 137.

Plaintiff argues that the question in this case is whether the injury she 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. She argues that, under the appellate court's construction of the...