Appeal from the Circuit Court of Cook County. The Honorable Willard J. Lassers, Judge Presiding.
Released for Publication September 6, 1995.
The Honorable Justice Rakowski delivered the opinion of the court: Egan, J., and Zwick, J., concur.
The opinion of the court was delivered by: Rakowski
JUSTICE RAKOWSKI delivered the opinion of the court:
This is a wrongful death action which allegedly arises out of the participation of the decedent, Greta Bradley, in a medically supervised weight management program. John Bradley (plaintiff), administrator of the decedent's estate, filed a fourth amended complaint (complaint) seeking damages from Sandoz Nutrition Corporation (Sandoz), the manufacturer of the nutritional supplement prescribed during the program, and Dr. Ralph Napolitano, the decedent's treating physician. Seeking contribution, Sandoz filed a cross-claim against Dr. Napolitano and a third-party complaint against Parkside Human Services, Inc. and Lutheran General Hospital (collectively referred to as Lutheran General), the health services corporations responsible for the operation of the program and the health and welfare of the participants. The trial court dismissed the third-party complaint as untimely, and this appeal was taken pursuant to Supreme Court Rule 304(a) (134 Ill. 2d R. 304(a)). The issue on appeal is whether Sandoz timely filed its third-party complaint for contribution against Lutheran General.
The original complaint in this wrongful death action was filed on November 15, 1990, naming Sandoz and Lutheran General as party defendants. At that time, plaintiff's sole legal theory was that Sandoz and Lutheran General were strictly liable in tort based upon their alleged manufacture and distribution of the Optifast weight management program and nutritional supplement. The complaint was amended twice in response to motions to strike filed by Sandoz. As of the third-amended complaint, filed on February 7, 1991, no new parties were added and plaintiff's legal theory was still limited to strict liability.
Plaintiff was granted leave to file a fourth amended complaint on May 23, 1991, which Sandoz answered on July 1, 1991. The fourth amended complaint added both a new defendant, Dr. Ralph Napolitano, and a new legal theory, medical malpractice. Plaintiff alleged that Dr. Napolitano committed malpractice by allowing the decedent to lose weight at a rapid rate after two electrocardiographic recordings documented QT interval prolongations. Plaintiff's complaint was supported by a letter from plaintiff's consultant identifying specific electrocardiogram (EKG) tests and related records. This was the first reference made by the plaintiff to Dr. Napolitano's negligent monitoring of the decedent's EKG readings as an alleged cause of the decedent's injuries.
On July 30, 1991, Sandoz brought a motion to compel the plaintiff to comply with Sandoz's previously filed interrogatories and requests for production. (Written discovery requests were originally filed on January 4, 1991.) The motion was granted on August 6, 1991. On September 4, 1991, the plaintiff produced the decedent's medical records including the EKG readings referenced in the fourth amended complaint.
Sandoz then reviewed the records with its consulting experts, and as a result, concluded that both Dr. Napolitano and Lutheran General failed to properly interpret the decedent's EKG tests and consequently allowed the decedent to lose too much weight for too long a period of time without receiving sufficient caloric intake.
On June 4, 1993, Sandoz was granted leave and filed a cross-claim for contribution against Dr. Napolitano and a third-party complaint for contribution against Lutheran General. (Lutheran General was dismissed without prejudice from the plaintiff's case-in-chief on November 23, 1992, based upon Lutheran General's certification of Sandoz as the manufacturer of the product identified by the plaintiff in his complaint.) Lutheran General moved to dismiss Sandoz's third-party complaint as time-barred under Section 13-212 of the Illinois Code of Civil Procedure (735 ILCS 5/13-212 (West 1992)), which the trial court granted. Section 13-212 provides in relevant 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."
Sandoz first contends that the medical malpractice statute is not applicable to its third-party complaint and that its complaint was timely pursuant to Section 5 of the Contribution Act (740 ILCS 100/5