Pederson v. West

• Decision Date: 05 October 1990
• Docket Number: No. 1-89-2061,1-89-2061
• Citation: 205 Ill.App.3d 200,150 Ill.Dec. 48,562 N.E.2d 578
• Parties: , 150 Ill.Dec. 48 Charlene PEDERSON and John Norton, Plaintiffs, v. James WEST and Yellow Cab Company, Defendants (James West and Yellow Cab Company, Third-Party Plaintiffs-Appellants, v. Dr. Charles W. MERCIER, Third-Party Defendant-Appellee).
• Court: United States Appellate Court of Illinois

Page 578

562 N.E.2d 578

205 Ill.App.3d 200, 150 Ill.Dec. 48

Charlene PEDERSON and John Norton, Plaintiffs, v. James WEST and Yellow Cab Company, Defendants (James West and Yellow Cab Company, Third-Party Plaintiffs-Appellants, v. Dr. Charles W MERCIER, Third-Party Defendant-Appellee).

No. 1-89-2061.

Appellate Court of Illinois First District, Sixth Division.

Oct. 5, 1990.

Allen L. Wiederer, Chicago, for appellants.

Wildman, Harrold, Allen & Dixon, of One IBM Plaza, Chicago (Ruth E. VanDemark, Donald R. McGarrah, Timothy W. Heath and Ellen Keefe-Garner, of counsel), for appellee.

Justice EGAN delivered the opinion of the court:

The issues in this case are whether an action for equitable apportionment is subject to the statute of limitations and repose applicable to medical malpractice claims (Ill.Rev.Stat.1987, ch. 110, par. 13-212(a)) and whether the defense of the statute of limitations and repose was itself timely raised in the trial court.

On November 20, 1981, Charlene Pederson (Pederson) and John Norton (Norton) were passengers in a taxicab owned by Yellow Cab Company (Yellow Cab) and driven by James West (West); they were injured when the taxicab in which they were riding collided with another taxicab. On December 29, 1981, Pederson saw Dr. Charles W. Mercier (Mercier) for treatment of a neck injury suffered in the accident. Mercier prescribed two drugs, Prednisone and Indocine. Pederson developed a bleeding ulcer allegedly as a result of taking these drugs in combination; she was hospitalized on January 5, 1982, and underwent emergency surgery during which a portion of her stomach was removed.

On April 8, 1982, Pederson and Norton filed suit against Yellow Cab and West seeking damages for their injuries, including the aggravation "of a previous condition of [Pederson's] stomach, [which] caus[ed] it to ulcer and require surgery." Yellow Cab was served on May 4, 1982, and West was served on May 5, 1982. Yellow Cab appeared and answered the complaint on May 18, 1982. West, represented by the same attorneys as Yellow Cab, eventually filed his appearance and answer on May 16, 1985.

Apparently, after Yellow Cab had taken Pederson's discovery deposition, it filed supplemental interrogatories on December 7, 1982. These interrogatories were directed at the drugs prescribed by Mercier, seeking "the full name of the drug to which the plaintiff is allergic," the substance of any conversations with Mercier after her appointment with him but before she was admitted to the hospital, and any advice rendered to her by Mercier. On September 9, 1983, the judge ordered that a subpoena issue requiring Mercier to appear for a discovery deposition by Yellow Cab. On April 6, 1984, the judge granted leave for issuance of subpoenas for depositions of the two doctors who treated Pederson at the hospital, and the one doctor who examined her. On June 4, 1985, Yellow Cab and West indicated in their response to a request for production that they had transcripts of the depositions of the plaintiffs, Mercier, and the other doctors.

On January 17, 1986, Yellow Cab and West filed their third-party complaint for equitable apportionment against Mercier. This filing was made four years and twelve days after Mercier's allegedly negligent conduct occurred and three years, nine months and nine days after the plaintiffs' original complaint was filed. The third-party complaint alleged that Mercier was negligent in prescribing Indocine and Prednisone in combination, thus causing a new and different injury to Pederson. The third-party plaintiffs asked that Mercier "be obliged to pay those sums that the trier of fact would equitably apportion as to his conduct in causing the upper GI distress suffered * * * by [Pederson]."

On October 28, 1986, Mercier filed his answer to the amended third-party complaint in which he denied the allegations of negligence.

On April 13, 1989, Mercier orally moved for leave to file the affirmative defense of the statute of limitations and repose to the amended third-party complaint; a written motion was filed on April 17, 1989. On June 7 the case was set for trial on July 7. On June 16, before the court had ruled on the motion for leave to file the affirmative defense, Mercier filed a motion for summary judgment pursuant to section 2-1005 of the Code of Civil Procedure (Ill.Rev.Stat.1987, ch. 110, par. 2-1005) based on the statute of limitations and repose in section 13-212 of the Code (Ill.Rev.Stat.1987, ch. 110, par. 13-212). On June 26 the trial judge granted Mercier leave to file his affirmative defense. On July 10 the judge dismissed the plaintiffs' underlying action, which apparently was settled, and granted Mercier's motion for summary judgment against Yellow Cab and West on the ground that the third-party complaint was time barred under section 13-212(a) of the Code of Civil Procedure. Ill.Rev.Stat.1987, ch. 110, par. 13-212(a).

The first issue is whether the trial judge erred in concluding that the statute of limitations and repose in section 13-212(a) of the Code of Civil Procedure (Ill.Rev.Stat.1987, ch. 110, par. 13-212(a)) applies to equitable actions in general and to an action for equitable apportionment in particular. Section 13-212(a) provides:

"[N]o action for damages for injury or death against any physician * * *, 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.) Ill.Rev.Stat.1987, ch. 110, par. 13-212(a).

We judge that Hayes v. Mercy Hospital & Medical Center (1990), 136 Ill.2d 450, 145 Ill.Dec. 894, 557 N.E.2d 873, is dispositive and is a clear rejection of the argument of Yellow Cab and West. In Hayes the underlying plaintiff sued several defendants including a physician. The physician was dismissed pursuant to a stipulation with the plaintiff. The other defendants filed third-party complaints "in contribution" against the physician almost four years and ten months after the injury to the underlying plaintiff allegedly caused by the physician. The appellate court affirmed the dismissal of the third-party complaints on the ground that they were barred by the four-year period of repose governing medical malpractice claims. (Hayes v. Mercy Hospital & Medical Center (1989), 180 Ill.App.3d 441, 129 Ill.Dec. 372, 535 N.E.2d 1137.) After oral argument in this court, the supreme court affirmed the appellate court making the following observations:

"We believe that the medical malpractice statute of repose bars any action after the period of repose seeking damages against a physician or other enumerated health-care provider for injury or death arising out of patient care, whether at law or in equity.

Because we find that the statute of repose is not limited to actions at law, we need not address the plaintiffs' argument that this court's decision in Doyle v. Rhodes, 101 Ill.2d at 1 [77 Ill.Dec. 759, 461 N.E.2d 382], established the principle that an action for contribution is a suit in equity." (Emphasis added.) (136 Ill.2d at 456, 145 Ill.Dec. 894, 557 N.E.2d 873.)

* * * * * *

" * * * [W]e believe that the term 'or otherwise' in the medical malpractice statute of repose includes actions for contribution against a physician for injuries arising out of patient care. * * * The inclusion of the term 'or otherwise' following more restrictive language in the statute seems to us to indicate that the legislature intended the term to be all-inclusive. We believe that the term demonstrates the General Assembly's desire at the time it originally enacted the statute to limit a physician's exposure to liability for damages for injury or death arising out of patient care under all theories of liability, whether then existing or not." (Emphasis added.) 136 Ill.2d at 458-59, 145 Ill.Dec. 894, 557 N.E.2d 873. We must express recognition that the third-party complaint before us is for "equitable apportionment" and the third-party complaint in Hayes was for "contribution." In our judgment, the entitlements of the complaints are immaterial. The character of a pleading is to be determined from its contents rather than its label. (Barnes v. Southern Railway Co. (1987), 116 Ill.2d 236, 107 Ill.Dec. 581, 507 N.E.2d 494.) Both third-party complaints maintain that the underlying plaintiff was allegedly injured due to the negligence of the third-party plaintiffs and that the underlying plaintiff suffered additional injury later due to the negligence of medical personnel; both third-party complaints seek money from the medical personnel. An action for "contribution" under the facts alleged in the Hayes complaint is just as "equitable" in nature as is an action for "equitable apportionment" under the facts alleged in this complaint. The Hayes court identified Doyle v. Rhodes (1984), 101 Ill.2d 1, 77 Ill.Dec. 759, 461 N.E.2d 382, as a holding that an action for contribution was an equitable action. (136 Ill.2d at 456; see also Van Jacobs v. Parikh (1981), 97 Ill.App.3d 610, 52 Ill.Dec. 770, 422 N.E.2d 979 (complaint couched in terms of equitable apportionment alleged a claim for contribution).) For these reasons, we conclude under the authority of Hayes that the trial court properly dismissed the third-party complaint on the ground that it was not timely filed.

The third-party plaintiffs maintain, alternatively, that Mercier waived the defense of the statute of repose by failing to assert it timely in the trial court.

The third-party complaint was filed on ...