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Wheaton v. Suwana

July 15, 2003


Appeal from the Circuit Court of Union County. No. 01-L-6 Honorable Mark H. Clarke, Judge, presiding.

Justices: Honorable Clyde L. Kuehn, J., Honorable Terrence J. Hopkins, P.J., and Honorable James K. Donovan, J., Concur

The opinion of the court was delivered by: Justice Kuehn


Larry and Elizabeth Wheaton initiated this lawsuit against M. Stevens Suwana, M.D., F.A.C.S., for alleged medical malpractice and resulting loss of consortium. The suit was dismissed as untimely because Dr. Suwana was an employee of Union County Hospital District at the time of the medical actions at issue and that hospital district was a local public entity subject to the Local Governmental and Governmental Employees Tort Immunity Act (Act) (745 ILCS 10/1-101 et seq. (West 1998)) and its one-year statute of limitations. Larry and Elizabeth Wheaton appeal from the trial court's October 2, 2002, order by which the trial court granted the defendant's motion to dismiss with prejudice.


Larry Wheaton had an abscess necessitating medical treatment. By the referral of his general practitioner, he sought out Dr. Suwana, who determined that the abscess needed to be removed. Surgery was performed in the doctor's office on October 15, 1999. Complications developed in the form of an infectious process, and ultimately he presented himself at an emergency room in Cape Girardeau, Missouri, on October 18, 1999. From this emergency room visit, he was admitted to the hospital, underwent "numerous" surgeries, and suffered a loss of a scrotum, a testicle, and some perineal skin.

At the time of the alleged malpractice, Dr. Suwana's office was located in an annex of the Union County Hospital. Dr. Suwana was a paid salaried employee of the hospital, receiving medical and other employment benefits. Nothing in the manner in which his office was decorated, or in the manner in which Dr. Suwana and his staff conducted themselves, revealed this employment relationship. Dr. Suwana's prescription pad did not reveal this relationship. Medical bills sent to Larry Wheaton were apparently sent by the hospital but listed Dr. Suwana as the provider.

The medical malpractice suit was filed on March 23, 2001, more than one year following the alleged acts of medical malpractice.

Larry and Elizabeth Wheaton contend that Dr. Suwana fraudulently concealed his relationship. The Wheatons propose no motivation for this alleged fraud. They argue that Dr. Suwana was an independent contractor, based upon the manner and method by which he conducted his practice and exercised his medical decisions, and that we should overlook the contractual relationship.

Dr. Suwana acknowledged in his deposition that his medical discretionary decisions were not guided by Union County Hospital. In her deposition, the hospital administrator, Carol Goodman, agreed with Dr. Suwana's assessment of the hospital's level of control over his medical judgment and his medical actions or inactions.

In replying to the Wheatons' complaint, Dr. Suwana filed a motion to dismiss pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/2-619 (West 1998)). On September 25, 2001, the trial court denied Dr. Suwana's motion to dismiss, finding that at that stage of the litigation process there was a question of fact about whether the alleged medical malpractice arose out of Dr. Suwana's claimed employment relationship with Union County Hospital.

Discovery on this issue was conducted. On January 18, 2002, Dr. Suwana filed his motion asking the trial court to reconsider its earlier denial of his motion to dismiss. In this motion, he outlined what evidence had been discovered. Union County Hospital District is a "local public entity" under the Act. Larry Wheaton sought medical care from Dr. Suwana in his capacity as a medical doctor. Dr. Suwana had an employment contract with Union County Hospital at the time of the alleged malpractice. The Wheatons introduced no evidence to refute that the alleged malpractice occurred as a result of medical treatment Dr. Suwana rendered in his capacity as a hospital employee. Because the trial court had originally concluded that a factual question existed about whether the actions at issue "arose out of" Dr. Suwana's employment relationship with the hospital, Dr. Suwana argued that evidence discovered since that original order supported his employment position. His employment status was supported by his testimony, the testimony of the hospital administrator, his employment contract, and his federal W-2 statement for 1999. In his testimony, Dr. Suwana stated that he had treated Larry Wheaton in his capacity as a hospital employee, that he did not have a private practice at that time, and that he did not treat patients except as a hospital employee. In support of this argument, Dr. Suwana cited to a nearly identical federal court case against a different Union County Hospital employee physician, in which the federal court had concluded that this doctor was an employee and, given the hospital's public entity status, that the physician was covered under the one-year statute of limitations.

On October 2, 2002, the trial court concluded that the employment relationship was a valid one and that since Union County Hospital is a governmental entity, litigation filed against Dr. Suwana must comply with the one-year statute of limitations contained within the Act. The trial court granted Dr. Suwana's motion for reconsideration, vacated the September 25, 2001, order denying Dr. Suwana's motion to dismiss, and granted Dr. Suwana's motion to dismiss, dismissing the Wheatons' complaint with prejudice. The Wheatons appeal this order.


On appeal from a trial court's involuntary dismissal of a complaint pursuant to section 2-619 of the Code of Civil Procedure (735 ILCS 5/ 2-619 (West 1998)), we must determine " 'whether the existence of a genuine issue of material fact should have precluded the dismissal or, absent such an issue of fact, whether dismissal is proper as a matter of law.' " Doyle v. Holy Cross Hospital, 186 Ill. 2d 104, 109-10, 708 N.E.2d 1140, 1144 (1999) (quoting Kedzie & 103rd Currency Exchange, Inc. v. Hodge, 156 Ill. 2d 112, 116-17, 619 N.E.2d 732, 735 (1993)). In other words, our review is de novo. In re Estate of Mayfield, 288 Ill. App. 3d 534, 542, 680 N.E.2d 784, 789 (1997).

The Act contains two sections relevant to the facts of this case. Specifically, section 8-101 of the Act provides, "No civil action may be commenced in any court against a local entity or any of its employees for any injury unless it is commenced within one year from the date that the injury was received or the cause of action accrued." 745 ILCS 10/ 8-101 (West 1998). For purposes of the Act, an employee is defined as "a present or former officer, member of a board, commission[,] or committee, agent, volunteer, servant[,] or employee, whether or not compensated, but does not include an independent contractor." 745 ILCS 10/1-202 (West 1998).

In the briefs and in the argument, an inference has been raised that what is at issue in this case is immunity. There are numerous references to the Act, as if the trial court's dismissal of the Wheatons' complaint was a determination that Dr. Suwana was immune from suit. That inference is erroneous. Because of Dr. Suwana's employment status, at issue is whether he is covered by a one-year limitations period as opposed to the standard two-year limitations period. The question is not whether he is immune from suit for medical malpractice. The question is, During what time frame can he be sued?

The Illinois Supreme Court has already determined that the one-year limitations period of the Act applies to medical malpractice actions. Tosado v. Miller, 188 Ill. 2d 186, 720 N.E.2d 1075 (1999); Ferguson v. McKenzie, 202 Ill. 2d 304, 780 N.E.2d 660 (2001).

By a June 7, 1954, election, the Union County Hospital District was established. A hospital district is a municipal corporation and, as such, can exercise governmental powers. 70 ILCS 910/15 (West 1998). Consequently, because of the manner in which Union County Hospital is structured, it is entitled to the benefits of the Act. See Carroll v. Paddock, 199 Ill. 2d 16, 25-26, 764 N.E.2d 1118, 1124 (2002) (holding that a nonprofit hospital may not be a "local public entity" entitled to utilize the Act and its one-year limitations period if the hospital was not found to have conducted "public business").

A. Independent Contractor or Employee

1. Analysis

Initially, the Wheatons argue that Dr. Suwana was really an independent contractor, not a hospital employee. The Wheatons cite a couple of appellate decisions that are not entirely applicable to the facts of this case, because the courts do not interpret the Act but simply determine whether the claim against a State employee is actually a claim against the State, such that it would be improper for it to be heard outside of the Court of Claims. Madden v. Kuehn, 56 Ill. App. 3d 997, 372 N.E.2d 1131 (1978); Watson v. St. Annes Hospital, 68 Ill. App. 3d 1048, 386 N.E.2d 885 (1979). The Court of Claims Act does not shield State employees from suits filed in the circuit courts unless the suit is construed as asserting a claim against the State or could subject the State to liability. 705 ILCS 505/8 (West 1998); Currie v. Lao, 148 Ill. 2d 151, 159, 592 N.E.2d 977, 980 (1992).

The Wheatons argue that the hospital did not control Dr. Suwana's actions and that this failing means that Dr. Suwana cannot possibly be a hospital employee. An independent contractor may or may not be an agent or employee and is defined as "a person who contracts with another to do something for him but who is not controlled by the other nor subject to the other's right to control with respect to his physical conduct in the performance of the undertaking." Restatement (Second) of Agency ยง2 ...

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