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Helen Uldrych, Indiv. and As Special Adm'r of the Estate of Rudolph v. Vhs of Illinois

January 21, 2011


The opinion of the court was delivered by: Justice Karmeier

JUSTICE KARMEIER delivered the judgment of the court, with opinion.

Chief Justice Kilbride and Justices Freeman, Thomas, Garman, and Burke concurred in the judgment and opinion.

Justice Theis took no part in the decision.


In this appeal, the parties, who were all named as defendants in an underlying medical malpractice action, argue over the proper statute of repose to be applied to the defendant hospital's implied indemnity claim against the defendant doctors and their employer. In accord with the determinations made by the circuit and appellate courts, we hold that section 13--212(a) of the Code of Civil Procedure (735 ILCS 5/13--212(a) (West 2002) (medical malpractice statute of repose)) applies to the hospital's implied indemnity claim and, consequently, the claim was untimely filed. We set forth hereafter only those facts necessary to provide a framework for our disposition.


On February 10, 2003, Rudolph Uldrych underwent gastric bypass surgery at MacNeal Hospital. In February of 2005, Rudolph and his wife, Helen, timely filed a medical malpractice action against, inter alia, the physicians who performed the surgery-Drs. Christopher Joyce and Jeffrey Zawacki-and the physicians' alleged employers-Suburban Surgical Associates, Ltd., and MacNeal Hospital. Rudolph subsequently died, and Helen was appointed special administrator of his estate. On August 26, 2005, Helen filed, in the circuit court of Cook County, a second-amended complaint setting forth claims for survival and wrongful death. In that four-count complaint, plaintiff alleged, in counts I and III, that Drs. Joyce and Zawacki were negligent in creating and/or failing to diagnose Rudolph's misconstructed bowel segment. Those counts further alleged that Suburban Surgical was one of the physicians' employers and, therefore, vicariously liable. Counts II and IV alleged that Drs. Joyce and Zawacki were MacNeal Hospital's actual or apparent agents and that MacNeal Hospital was vicariously liable for the physicians' negligent acts and omissions.

On August 27, 2008, VHS of Illinois, Inc., d/b/a MacNeal Hospital, filed a counterclaim against Joyce, Zawacki, and Suburban Surgical. In its counterclaim, MacNeal alleged that it had agreed to pay $1 million to settle the underlying malpractice action, and it sought indemnification.

On September 19, 2008, the circuit court entered an order dismissing the underlying medical malpractice action pursuant to a settlement; however, the order specifically stated that MacNeal Hospital's counterclaim would remain pending. On that same day, MacNeal Hospital filed an amended counterclaim, alleging that Drs. Joyce and Zawacki were the actual employees or agents of Suburban Surgical at the time the gastric bypass surgery was performed. The amended counterclaim further alleged that Dr. Joyce, Dr. Zawacki, and Suburban Surgical owed MacNeal Hospital an implied, quasi-contractual obligation for indemnification based on the assertions contained in the second-amended complaint that Drs. Joyce and Zawacki were the actual or apparent agents of MacNeal Hospital. The amended counterclaim again sought indemnification for the $1 million that MacNeal Hospital had agreed to pay to settle the underlying action.

In response, Joyce, Zawacki, and Suburban Surgical filed section 2--619 motions to dismiss MacNeal's amended counterclaim, arguing that the four-year limitation period of the medical malpractice statute of repose (735 ILCS 5/13--212(a) (West 2002)) applied to MacNeal's counterclaim for implied indemnification and that the counterclaim was not timely filed within the applicable four-year period. On November 7, 2008, the court granted the motions and dismissed the counterclaim as time-barred pursuant to section 13--212(a).

The appellate court affirmed the judgment of the circuit court, concluding that section 13--212(a) applied, and citing, as supporting authority, this court's opinion in Hayes v. Mercy Hospital & Medical Center, 136 Ill. 2d 450 (1990), and the appellate court's decision in Ashley v. Evangelical Hospitals Corp., 230 Ill. App. 3d 513 (1992). 398 Ill. App. 3d 696, 696-700. In so holding, the appellate court distinguished this court's decision in Travelers Casualty & Surety Co. v. Bowman, 229 Ill. 2d 461 (2008). 398 Ill. App. 3d at 700-01.

As the appellate court noted, this court, in Hayes, held that third-party actions for contribution are subject to the four-year statute of repose set forth in section 13--212(a). 398 Ill. App. 3d at 699 (citing Hayes, 136 Ill. 2d at 460-61). As the appellate court observed, in Hayes, this court discussed the "perceived medical malpractice insurance crisis" that prompted enactment of the medical malpractice statute of repose and concluded, " '[b]ecause a suit for contribution against an insured for damages arising out of patient care exposes insurance companies to the same liability as if the patient were to have brought a direct action against the insured, we believe that the term "or otherwise" in the medical malpractice statute of repose includes actions for contribution against a physician for injuries arising out of patient care.' " 398 Ill. App. 3d at 699-700 (quoting Hayes, 136 Ill. 2d at 458).

The appellate panel in this case next cited, and concurred with, the reasoning of the appellate court in Ashley, wherein that court extended the reasoning of Hayes to third-party actions for implied indemnity. Discussing Ashley, the appellate court noted:

"The Ashley court observed that, much like the relationship between a third-party plaintiff and a third-party defendant in an action for contribution, the indemnitee in an implied indemnity claim seeks from the indemnitor those damages caused by the indemnitor in the underlying suit. Ashley, 230 Ill. App. 3d at 518. This court also noted that, similar to a suit for contribution, a claim for indemnification exposes an insurance company to the same liability as if the patient had brought a direct action against the insured. Ashley, 230 Ill. App. 3d at 521. Accordingly, the Ashley court concluded that the inclusion of third-party actions for implied indemnity within the ambit of the medical malpractice period of repose furthers the statute's legislative intent of enabling insurance ...

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