APPEAL from the Appellate Court for the Second District; heard
in that court on appeal from the Circuit Court of Lake County;
the Hon. LLOYD A. VAN DEUSEN, Judge, presiding.
MR. JUSTICE WARD DELIVERED THE OPINION OF THE COURT:
James Gertz, a minor, by his mother, Ann Gertz, filed a complaint in the circuit court of Lake County alleging that Vern A. Campbell, Sr., the defendant and the third-party plaintiff, injured James Gertz when he negligently drove his auto against Gertz, who was standing on the shoulder of a road. Campbell later filed a third-party action against Dr. H.M. Snyder, the physician who treated Gertz, alleging malpractice in his treatment of Gertz and seeking indemnity for any damages which might be assessed against Campbell under Gertz's complaint which were attributable to the malpractice of Dr. Snyder. The trial court dismissed the third-party complaint on the motion of Dr. Snyder, but that judgment was reversed by the appellate court, that court holding that Campbell had stated a cognizable claim for "equitable apportionment." (4 Ill. App.3d 806.) We granted the third-party defendant's (Snyder's) petition for leave to appeal.
The third-party complaint against Dr. Snyder alleged that after Gertz sustained the injuries from Campbell's automobile, Gertz was admitted to the emergency room of the McHenry Hospital in McHenry, where he was examined by Dr. Snyder.
The complaint alleged in detail what the examinations of the plaintiff disclosed and charged that Gertz's condition upon his admission called for immediate surgery "to repair the occluded artery and veins in the plaintiff's right leg." It charged Dr. Snyder was negligent in waiting 17 hours to perform this surgery, and that as a proximate result of this delay "the tissues in the lower portion of the plaintiff's right leg became necrotic and it thereby became necessary to amputate the plaintiff's right leg between the knee and the ankle." It further alleged that "but for the said failure and neglect of Dr. Snyder, the tissue in the plaintiff's right leg would not have become necrotic with the resultant amputation, and the plaintiff could reasonably have anticipated a normal recovery from a broken leg."
Campbell declared that he would be liable for the aggravation of Gertz's injury caused by the negligence of Dr. Snyder, and he asked that he be given, should he be found liable to Gertz, "indemnity and judgment against Dr. Snyder for the amount of damages caused to the plaintiff [Gertz] as a result of the new injury or aggravation of the plaintiff's existing injuries caused by the neglect and failure of Dr. Snyder."
The third-party defendant, Snyder, contends that the appellate court erred in reversing the trial court's dismissal. If Campbell's complaint is to be regarded as one for indemnity, dismissal was proper, he says, because in Illinois indemnity may be had only where there is an express or implied contract of indemnity, or where there exists a "qualitative distinction between the negligence of the two tortfeasors." (Chicago & Illinois Midland Ry. Co. v. Evans Construction Co., 32 Ill.2d 600, 603.) This qualitative distinction will be drawn only, Snyder argues: (1) where the indemnitee, though without fault himself, is required to respond in damages, as where a principal or employer is held for the negligence of his agent or employee, or (2) where the disparity in fault is so great that the indemnitor's negligence may be considered as active while that of the indemnitee may be said to have been only passive. Here, Snyder points out, there was of course no contract of indemnity, and the negligence of Campbell was certainly active and not passive.
Next, Snyder directs attention to the distinction to be drawn between indemnity and contribution. In Suvada v. White Motor Co., 32 Ill.2d 612, 624, we quoted, he notes, Prosser on Torts (3d ed. 1964) that: "There is an important distinction between contribution, which distributes the loss among the tort-feasors by requiring each to pay his proportionate share, and indemnity, which shifts the entire loss from one tort feasor who has been compelled to pay it to the shoulders of another who should bear it instead."
Pointing out that Campbell seeks recovery from him of only a portion of whatever judgment Gertz obtains against Campbell, Snyder argues that Campbell here is attempting to recover what is in reality contribution. There cannot be contribution between joint tortfeasors in Illinois, Snyder says, noting Chicago & Illinois Midland Ry. Co. v. Evans Construction Co., 32 Ill.2d 600, and therefore the trial court properly dismissed the third-party action if the complaint is considered as seeking contribution.
It is appropriate to observe that this case comes before us on the pleadings, and that "all facts well pleaded will be taken as true." Suvada v. White Motor Co., 32 Ill.2d 612, 613.
Campbell is seeking recovery from Snyder, not in the total amount of the judgment Gertz might obtain against him but only "for the amount of damages caused to the plaintiff as a result of the injury or aggravation of the plaintiff's existing injuries caused by the neglect and failure of Dr. Snyder." Campbell, as the original tortfeasor, says he is liable not only for the damages resulting from his automobile striking Gertz, which he alleges to have been only those for a fractured leg, but also for the additional damages suffered by Gertz as a result of Dr. Snyder's negligent failure to perform immediate surgery, which added damages Campbell alleges to be those for the amputation of Gertz's leg between the knee and the ankle. Thus, Campbell claims from Dr. Snyder the amount of damages to be awarded the plaintiff attributable to the amputation of his leg, which he says was caused by an independent negligence of Snyder.
Considering the claims of Campbell's complaint it is obvious that what Campbell sought here was not contribution or indemnity in the traditional form. He did not ask that Dr. Snyder be required to share the whole burden of the plaintiff's recovery nor did he ask to be indemnified to the extent of the entire recovery by the plaintiff. He did, however, ask that he be indemnified for the entire amount of the damages assignable to Snyder's fault.
We would observe that Campbell correctly states he is to be liable to the plaintiff for the negligence of Snyder as well as his own. In this State, and generally, a person injured through another's negligence can recover from the original tortfeasor not only for the original injury but for any aggravation of the injury caused by a physician's malpractice, assuming that there was no want of ordinary care by the injured in the selection of the physician. Chicago City Ry. Co. v. Saxby, 213 Ill. 274; see also, Prosser, Handbook of the Law of Torts (4th ed. 1971), par. 61.
Next it should be said, contrary to one of the positions taken by Snyder, that the appellate court properly considered that Campbell and Dr. Snyder were not joint tortfeasors and thus our holdings prohibiting contribution between joint tortfeasors have no applicability. There was no concert in the conduct of Campbell and Dr. Snyder. Inter alia, neither had control over the acts of the other; the plaintiff's cause of action is based on claimed violations of different duties owed the plaintiff by the original tortfeasor and the physician. The wrongful conduct and the injuries sustained were at different times. The physician in a case as here is not liable for the negligence of the original tortfeasor. Other courts, too, have concluded that under circumstances as here the original tortfeasor and the one charged with malpractice are not to be deemed joint tortfeasors. Fisher v. Milwaukee Electric Ry. & Light Co. (1920), 173 Wis. 57, 180 N.W. 269; Herrero v. Atkinson (1964), 227 Cal.App.2d 69, 38 Cal.Rptr. 490; see also, Prosser, Joint Torts and Several Liability, 25 Cal. L. Rev. 413 (1937).
Turning to Snyder's other contention, we do not consider that the right to indemnity must be unalterably restricted to the outlines he has described. The right should be capable of development to meet perceived requirements for just solutions in questions involving multiple tortfeasors. The historical aversion of courts to compare the fault of tortfeasors when contribution or indemnity has been sought has not prevented them from developing concepts which allowed indemnity when equity required. As an example, courts came to contrast the faults of an active tortfeasor with that of a passive one and to allow indemnity to the less culpable offender. And to illustrate there can and should be a continuing search for better solutions, the Court of Appeals of ...