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03/09/89 Brenda Hayes, Adm'r of the v. Mercy Hospital and Medical

March 9, 1989

BRENDA HAYES, ADM'R OF THE ESTATE OF VINCENT HAYES, PLAINTIFF

v.

MERCY HOSPITAL AND MEDICAL CENTER ET AL., DEFENDANTS (THE CITY OF CHICAGO ET AL., THIRD-PARTY, PLAINTIFFS-APPELLANTS; MICHAEL JERVA, THIRD-PARTY DEFENDANT-APPELLEE; PENN



APPELLATE COURT OF ILLINOIS, FIRST DISTRICT, FOURTH DIVISION

Trailers and Truck Bodies

Corporation et al.,

Third-Party, Plaintiffs-Appellants)

Nos. 1-88-1088, 1-88-1113 cons.

535 N.E.2d 1137, 180 Ill. App. 3d 441, 129 Ill. Dec. 372 1989.IL.299

Appeal from the Circuit Court of Cook County; the Hon. Dean J. Sodaro, Judge, presiding.

APPELLATE Judges:

PRESIDING JUSTICE JIGANTI delivered the opinion of the court. LINN and McMORROW, JJ., concur.

DECISION OF THE COURT DELIVERED BY THE HONORABLE JUDGE JIGANTI

This appeal involves the question of whether the statutory period of repose governing medical malpractice claims can bar a third-party action in contribution against a physician.

Vincent Hayes, not a party to this appeal, was injured on January 1, 1982. On December 29, 1983, he filed an action against numerous defendants, including the City of Chicago, Penn Trailers and Truck Bodies Corporation, and Michael Jerva, M.D. On January 29, 1985, Dr. Jerva was dismissed with prejudice pursuant to a stipulation between Dr. Jerva and Brenda Hayes, who was substituted as plaintiff upon the death of Vincent Hayes. On October 24, 1986, Penn Trailers filed a third-party complaint in contribution against Dr. Jerva, alleging acts of negligence arising out of the care and treatment of Vincent Hayes on January 1, 1982. The City of Chicago filed a similar complaint on October 28, 1986. Dr. Jerva moved to dismiss the third-party complaints. The basis for the motion was that more than four years had elapsed since the alleged negligence of Dr. Jerva and therefore the third-party action was barred by the four-year period of repose governing medical malpractice claims. Ill. Rev. Stat. 1985, ch. 110, par. 13-212.

Section 13 -- 212 of the Code of Civil Procedure provides in pertinent part:

"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 except as provided in Section 13-215 of this Act. (Emphasis added.) Ill. Rev. Stat. 1985, ch. 110, par. 13-212.

On appeal, the City of Chicago and Penn Trailers and Truck Bodies Corporation (City) contend that the four-year period of repose in section 13-212 does not apply to contribution actions. In support of this contention, the City maintains that under the express language of the statute the term "otherwise," contained in section 13-212 ("[no] 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"), refers to unspecified theories of liability supporting an "action for damages for injury or death." (Emphasis added.) (Ill. Rev. Stat. 1985, ch. 110, par. 13-212.) According to the City, a contribution action is not an "action for damages for injury or death" but is a ...


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