Sexual battery claim against physician before high court.


The appellate court erred in disregarding the context of Kristen Kaufmann’s claim. The court focused on the moment of the January 2006 sexual battery by Roger A. Schroeder, M.D., rather than his treatment of her since 2004. It ignored the totality of Kaufmann’s care, including her stay at Jersey Hospital as well as Dr. Schroeder’s treatment. “We are all born mad. Some remain so,” the playwright Samuel Beckett wrote in Waiting for Godot. A newborn cannot make sense out of the world. It takes a realization of associations, and understanding of context, for the babe to become a rationale human being. Similarly, Kaufmann’s actions cannot be understood without considering her involvement as a patient obtaining medical care. In being blind to the totality of the situation under which Plaintiff was sedated while being treated by Dr. Schroeder at the hospital, the court’s decision conflicts with this Court’s decisions in Brucker v. Mercola, 227 Ill. 2d 502 (2007) and Orlak v. Loyola University Health System, 228 Ill. 2d 1 (2007) as well as decisions by lower Illinois appellate courts.


  1. I. It is appropriate to consider 735 ILCS 5/13-212 in interpreting the Tort Immunity Act amendment.

At issue is the meaning of the June 4, 2003 amendment to the Tort Immunity Act extending the statute of limitations to two years in actions 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…” 745 ILCS 10/8-101(b). Given that no cases have interpreted this statute, the parties and the court below appropriately looked to Brucker, Orlak, and other cases interpreting parallel language in 735 ILCS 5/13-212, which sets forth a statute of limitations and statute of repose for tort, breach of contract or other actions against any physician, dentist, registered nurse or licensed hospital.

  1. II. Illinois courts have repeatedly interpreted section 3-212 to apply to claims not involving medical malpractice.

In interpreting section 3-212, this Court and other Illinois courts have interpreted “the  arising out of patient care” language” to apply to claims that did not simply allege medical malpractice. In Brucker, a receptionist assistant to Dr. Joseph Mercola mistakenly put selenium into a bottle sold as L-Glutamine that was sold to Dr. Mercola’s patient, Anna Marie Bruckner. The accompanying directions called for mixing a teaspoon of powder with a glass of water, which was an amount more than 20,000 times the safe dosage of selenium. Anna Brucker was pregnant at the time. She and her husband sued Dr. Mercola, alleging that their son was poisoned in utero when Anna ingested the selenium powder.

This Court rejected arguments that the statute of repose limit imposed by section 13-212 was not applicable, whether Dr. Mercola’s acts were deemed to be medical malpractice by a physician or ordinary negligence by a retail vendor of supplements. It noted that the legislature passed 735 ILCS 5/2-622(a) (West 2006) and thus knows to address medical malpractice when it wishes to do so. The court then stated,

Because the legislature instead made section 13-212 applicable when the plaintiff seeks damages for injury or death, whether in tort, breach or contract, or otherwise, arising out of patient care, we must presume that the legislature did not intend “patient care” to be synonymous  with “medical malpractice.” Perhaps the easiest way to state the point is that all medical malpractice claims involve injuries arising out of patient care, but not all injures arising out of patient care were by reason of medical malpractice.

Brucker, 227 Ill.2d at 532. Whether the claim was for ordinary negligence or medical malpractice, the court found, “[b]oth actions are covered by section 13-212(b) if the injury arose out of patient care.” Id. at 533. Thus, the negligent packaging of the wrong chemical in a bottle meant for another medication fell under section 13-212. It made no difference that the negligent act itself could hardly be deemed “patient care”.

The Supreme Court further stated that “[s]ection 3-212(b) is broader than section 2-622(a) [relating to medical malpractice claims], and it is clear that there are some situations in which a plaintiff would have to file within the time limits prescribed by section 13-212(b), but would not have to attach an attorney’s affidavit or a health professional’s report.” Id. at 517.

In Orlak, the Court reached the same conclusions, finding that the statute of repose provision of section13-212(a) applied to bar an action alleging a hospital’s failure over the course of 11 years to notify the plaintiff that a transfusion should be tested for viral hepatitis. The plaintiff sought to characterize the matter as an administrative failure that was independent of the care she received years earlier. This Court rejected that argument, finding,

It 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’s claim arose from patient care. The word “arise” is defined in Black’s Law Dictionary as “[t]o originate; to stem (from),” or “to result (from).” Black’s Law Dictionary 115 (8th ed. 2004). “Arise” is also defined elsewhere as “to originate from a source.” Merriam-Webster’s Collegiate Dictionary 66 (11th ed. 2006).

Orlak, supra, 228 Ill.2d at 14-15. Given this broad meaning of the word “arise”, the Court found, as it found in Brucker, that the statute simply required

“a causal connection between the patient’s medical care and the injury. While the phrase does not need to be construed so broadly as to encompass ‘but for’ causation, it clearly covers any injuries that have their origin in, or are incidental to, a patient’s medical care and treatment.” Brucker, 227 Ill. 2d at 523-24, 2007 Ill. LEXIS 1838, at *31.

Orlak, 228 Ill. 2d at 15.

III.        Kaufmann’s injuries arose out of her patient care.

Here, Plaintiff’s injuries had their origin in and were incidental to her medical care and treatment at Jersey Community Hospital for a urinary tract infection. Had she not been in treatment, Dr. Schroeder would not have had the opportunity to commit his sexually deviant act. His act arose out of her treatment; it was not a mere happenstance. Dr. Schroeder did not, by chance, fall out of a cabinet, hitting Kaufmann on the head and knocking her out. As her doctor, he sedated her. He was able to sedate Kaufmann and then perform his deviant sexual act because of his presence as her physician at the hospital.

Orlak discusses several cases in which lower appellate courts gave the same interpretation to the parallel “arising out of patient care” language of section 13-212(a) years before the Illinois Legislature revised the Tort Immunity Statute by adding section 8-101(b) with language parallel to section 13-212(a). Had the legislature wished to narrow the scope of section 8-101(b) to only address medical malpractice situations rather than a gamut  of circumstances arising out of patient care, it could have, and would have, dropped the broad “arising out of” language. The legislature also could have restricted the statute’s application to medical malpractice tort claims, rather than claims based upon “tort, or breach of contract, or otherwise”. But it chose not to do so.

IV.       Legislative intent is clear as to the amendment of the Tort Immunity Act, given prior court decisions on section 13-212(a).

As this Court has explained, the “cardinal rule of statutory construction is to ascertain and give effect to the intent of the legislature. …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. …A court should interpret a statute, where possible, according to the plain and ordinary meaning of the language used.” Orlak, supra, at 228 Ill.2d at 8. (Citations omitted.)

The plain meaning of section 8-101(b) is the same meaning of section 13-212(a), given the parallel construction. This Court is well familiar with the broad interpretation of the “arising out of patient care” language made by appellate courts prior to 2003; it discussed the precedents in depth in both Orlak and Bruckner.

Time and again, plaintiffs seeking to avoid the statute of limitations or the statute of repose contained in section 13-212 have argued, as Jersey Community Hospital argues here, that their case did not involve patient care, and, therefore, should not fall under the statute. Time and again, Illinois courts have rejected that assertion, finding that the phase “arising out of” has significance.

In 1989 in Miller v. Tobin, 186 Ill App.3d 175 (2d Dist. 1989), plaintiff alleged that the defendant, a psychiatrist, revealed confidential information to the patient’s wife, who also was seeing the defendant for marriage counseling. Plaintiff alleged breach of contract and violation of the Mental Health Developmental Disabilities and Confidentiality Act. Though the trial court concluded that plaintiff’s complaint was not a malpractice action, it granted defendant’s motion to dismiss, ruling that the limitations set forth in section 13-212 did apply because his injury arose out of treatment by the defendant. The appellate court affirmed, finding that “the pertinent issue is not whether plaintiff’s suit alleges malpractice, but whether plaintiff’s injuries arose out of patient care.” Id. at 174. That an illegal breach of confidence could hardly be deemed to be “patient care” made no difference since the plaintiff and his wife were under treatment and therefore the alleged breach arose out of patient care.

Here, defendant alleges that Dr. Schroeder’s deviant acts were not patient care. No matter. They arose within the context of treatment. They arose out of patient care and therefore are encompassed by 8-101(b).

Similarly, in Walsh v. Barry-Harlem Corp., 272 Ill.App.3d 418 (1st Dist. 1995), the appellate court upheld the dismissal of a complaint that alleged that doctors fraudulently performed unnecessary eye surgery, resulting in economic loss. The court noted, citing Hayes v. Mercy Hospital & Medical Center, 136 Ill.2d 450, 459 (Ill. 1990) that the words in section 13-212 “or otherwise” were meant to be “all inclusive. Walsh, supra, 272 Ill.App.3d at 422. Further, the court cited the broad meaning of the plain language covering “injury … arising out of patient care” and found it would apply even though no physical injury was alleged in the complaint. Thus, plaintiff’s economic fraud complaint came under section 13-212, even though purposefully performing unnecessary surgery bears more similarity to an intentional battery than to patient care. But the surgery arose out of the medical care rendered to plaintiff, and that made the statute apply however the care was characterized. Similarly, here Dr. Schroeder’s unnecessary administration of sedation and ensuing deviant sexual battery on Plaintiff arose out of her medical care, no matter how the sedation and battery themselves are characterized.

The Seventh Circuit also has given broad reach to section 13-212. In Stiffler v. Lutheran Hospital, 965 F.2d 137 (7th Cir. 1992), plaintiff suffered injury when a prosthetic device implanted in her chest broke off and became entangled in her intestines. She filed a products liability action, but the court found that section 13-212 barred the claim since it arose out of patient care; the court noted that medical materials are so “inextricably linked” with treatment that their use “almost per se arises ‘out of patient care.’” Id. at 140-141. Here, Dr. Schroeder’s sedation of Kaufmann was inextricably linked both to his provision of medical care and his subsequent battery.

Defendant argues that Dr. Schroeder’s use of drugs and ensuing deviant sexual act could have happened anywhere. But it cannot and does not deny that it happened at the hospital where Kaufmann was undergoing care for a urinary tract infection. One can always speculate that anything can happen anywhere. But such speculation does not erase the fact that the wrongful acts alleged here arose out of the care that Kaufmann was receiving at the hospital. Her exposure to Dr. Schroeder was not a happenstance occurrence, but part of her care in the hospital and her continuing care by the physician. Dr. Schroeder had access to her because of the hospital’s trust and her trust, a trust that was reinforced by the hospital environment.

  1. V. Defendant’s out-of-state cases addressed medical malpractice and are thus irrelevant as well as lacking precedential authority in Illinois.

Defendant, as did the appellate court, cited two out-of-state cases – Doe v. Cherwitz, 894 F. Supp 344 (S.D. Iowa 1995) and Burke v. Snyder, 899 So.2d 336 (Fla App. 2005), in an effort to support the claim that the alleged wrongful acts by Dr. Schroeder did not arise from patient care. In addition to not being precedent in Illinois courts, the cases themselves fail to bolster defendant’s argument. In Burke, the court concluded that “the claim of sexual misconduct in this case is not a claim arising out of negligent medical treatment.” Id. at 341. But, as discussed, in Illinois, neither section 13-212(b) nor section 9-101(b) are restricted to claims arising out of negligent treatment, i.e. medical malpractice. Rather, they may sound in “tort, breach of contract, or otherwise” and need only arise out of patient care, not negligent patient care. Cherwitz is similarly distinguishable since the case addressed Iowa Code § 614.1(9) addressing “Malpractice. … arising out of patient care.” Cherwitz, 894 F. Supp. at 345. As this Court has found, allegations of malpractice are not requisite to a section 13-212(b) action. Neither should they be requisite in an action based on section 9-101(b), given its parallel wording.

This Court and Illinois appellate courts have consistently found section 13-212(b) to be unambiguous. The same lack of ambiguity exists in the parallel plain and ordinary wording of section 8-101(b). It is thus not appropriate to speculate based on a legislator’s brief and vague oral comment cited by Defendant as to the meaning of the section intended by the entire legislature. Rather, the language of the statute must control.

Dr. Schroeder’s deviant battery upon Kaufmann occurred at Defendant’s hospital and arose out of her treatment at the facility. No matter how that battery and accompanying sedation are characterized – as negligence, an intentional tort, breach of contract, or otherwise – the wrongful acts fall under section 9-101(b) of the Tort Immunity Act. This Court and Illinois appellate courts have set forth the standards for applying the parallel language embodied in section 13-212. Those standards are based upon principles of statutory interpretation, not on an inequitable and illogical notion that the statute of limitation and repose should only apply to deny plaintiffs the right to sue, and never to allow it.


WHEREFORE, the Illinois Trial Lawyers Association, as amicus curiae, requests that this Court reverse the Appellate Court’s decision and remand the case for further proceedings.

Respectfully submitted,

Illinois Trial Lawyers Association

By:       __________________________

William Lazarus

William Lazarus, ARDC #6187706

18400 Maple Creek Dr., Suite 500

Tinley Park, IL 60477

(708) 444-0220

(708) 249-3034 (fax)