2024 IL App (4th) 240645
FILED
December 11, 2024
NO. 4-24-0645
Carla Bender
4th District Appellate
IN THE APPELLATE COURT Court, IL
OF ILLINOIS
FOURTH DISTRICT
GARY HAMBLIN, Executor of the Estate of ) Appeal from the
Kathleen Whorrall, Deceased, ) Circuit Court of
) McLean County
Plaintiff-Appellant, ) No. 22LA151
)
v. )
)
BAMIDELE OGUNLEYE, M.D., and )
ADVANCED WOMEN’S HEALTHCARE, S.C., ) Honorable
) Donald W. Knapp Jr.,
Defendants-Appellees. ) Judge Presiding.
JUSTICE VANCIL delivered the judgment of the court, with opinion.
Justices Steigmann and Lannerd concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Gary Hamblin, as the executor of the estate of Kathleen Whorrall, seeks
to recover on survival and wrongful death claims for the alleged negligence of defendants,
Bamidele Ogunleye, M.D., and Advanced Women’s Healthcare, S.C. (AWH), in failing to
convey pathology results to Whorrall. The trial court granted summary judgment in favor of
defendants, holding the claims were barred by the relevant statute of repose’s time constraints.
735 ILCS 5/13-212 (West 2018). On appeal, plaintiff argues the statute of repose does not apply
here because (1) AWH is not properly licensed and (2) the claims in this case are not medical
malpractice claims and do not arise out of patient care. For the reasons that follow, we affirm the
trial court’s decision.
¶2 I. BACKGROUND
¶3 On June 4, 2018, Kathleen Whorrall underwent a laparoscopic hysterectomy
performed by Bamidele Ogunleye, M.D., at OSF St. Joseph Medical Center in Bloomington,
Illinois. Dr. Ogunleye is a doctor employed by AWH, a medical corporation. According to a
surgical pathology report from June 11, 2018, Whorrall was diagnosed with a “left ovarian tumor
with features suggestive of possible sex cord tumor with annular tubules.” After sharing the
results with members of the department, the decision was made to refer the case to the
Department of Surgical Pathology at Mayo Clinic. Whorrall attended several follow up
appointments and was not informed of the pathology results. She was later informed of her
unknown diagnosis in January 2021.
¶4 Plaintiff filed his complaint on November 1, 2022, alleging medical negligence
occurring between June 4, 2018, and August 1, 2018. Defendants filed an answer and affirmative
defense based on the statute of repose and later filed a motion for summary judgment. Plaintiff
filed a motion pursuant to Illinois Supreme Court Rule 191 (eff. Jan. 4, 2013) and was granted
leave to take depositions. Plaintiff then filed an addendum to his complaint, alleging
“institutional negligence” against AWH and claiming AWH was not licensed by the Department
of Financial and Professional Regulation (Department), and therefore it was not covered by the
statute of repose. In response, defendants filed an amended motion for summary judgment.
¶5 The trial court granted defendants’ motion for summary judgment, as the claims
were barred by the statute of repose. 735 ILCS 5/13-212 (West 2018). It held the statute applied
to Dr. Ogunleye, as the suit was brought outside of the statute’s four-year period and no genuine
issue of material fact existed. As to AWH, the trial court held that—pursuant to Real v. Kim, 112
Ill. App. 3d 427 (1983), and Solich v. George &; Anna Portes Cancer Prevention Center of
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Chicago, Inc., 158 Ill. 2d 76 (1994)—it was the intent of the General Assembly for the statute of
repose to apply to a corporate entity. Thus, as those claims were also brought outside the
statutory four-year limitation, they were barred.
¶6 This appeal followed.
¶7 II. ANALYSIS
¶8 Plaintiff advances two arguments on appeal. First, he argues AWH is not properly
licensed under the Medical Corporation Act (805 ILCS 15/1 et seq. (West 2018)) and because
the statute of repose only applies to those “duly licensed” under state law, it does not cover
AWH. Second, plaintiff argues the statute of repose does not apply to the claims in this case
because they are not medical malpractice claims, but instead are more precisely characterized as
claims of institutional negligence, and do not arise out of patient care.
¶9 The trial court granted defendants’ summary judgment. Summary judgment is
appropriate “if the pleadings, depositions, and admissions on file, together with the affidavits, if
any, show that there is no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” 735 ILCS 5/2-1005(c) (West 2022). A trial court’s
ruling on a summary judgment motion is reviewed de novo. Bagent v. Blessing Care Corp.,
224
Ill. 2d 154, 163 (2007).
¶ 10 A. Licensure Required Under the Statute of Repose
¶ 11 The statute of repose in this case states:
“[N]o action for damages for injury or death against any physician, dentist,
registered nurse or hospital duly licensed under the laws of this State … 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
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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.”
735 ILCS 5/13-212(a) (West 2018).
¶ 12 We note at the outset that although the statute does not explicitly apply to medical
corporations, the First District appellate court has held that the word “physician,” as used in the
statute of repose, “includes corporations formed to practice medicine under the Medical
Corporations Act.” Real, 112 Ill. App. 3d at 437. The trial court cited this principle, and neither
party disputes it. The point of contention is on the phrase “duly licensed under the laws of this
State.” Plaintiff argues that because AWH did not have a “certificate of registration” from the
Department, as required by section 5 of the Medical Corporation Act (805 ILCS 15/5 (West
2018)), it was not “duly licensed,” as required by the statute of repose. Therefore, the question
before us is whether a medical corporation must obtain a “certificate of registration” in order to
be “duly licensed” and benefit from the protections of the statute of repose.
¶ 13 For the following reasons, we hold that a “certificate of registration” is not a
“license” under the Medical Corporation Act, and instead, a medical corporation incorporated
under the Medical Corporation Act is “duly licensed” if the physician, dentist, registered nurse,
or other practitioner or officer from whose conduct the claim arises is properly licensed under the
Medical Practice Act of 1987 (Medical Practice Act) (225 ILCS 60/1 et seq. (West 2018)).
¶ 14 1. Statutory Analysis
¶ 15 The primary objective when construing the meaning of a statute is to ascertain
and give effect to the intent of the legislature. Chatham Foot Specialists, P.C. v. Health Care
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Service Corp., 216 Ill. 2d 366, 382 (2005). In determining legislative intent, our inquiry begins
with an examination of the plain language of the statute.
Id. We view all provisions of a statutory
enactment as a whole, and as such, words and phrases should not be construed in isolation but
must be interpreted in light of other relevant provisions of the statute.
Id. In construing a statute,
we presume that the General Assembly did not intend absurdity, inconvenience, or injustice.
Id.
As such, we now examine the plain language of the statutes at issue in this case.
¶ 16 Medical corporations are created and governed by the Medical Corporation Act.
Section 2 of the Medical Corporation Act provides that
“[o]ne or more persons licensed pursuant to the Medical Practice Act of 1987 …
may form a corporation pursuant to the ‘Business Corporation Act of 1983’ …
to own, operate and maintain an establishment for the study, diagnosis and
treatment of human ailments and injuries, whether physical or mental, and to
promote medical, surgical and scientific research and knowledge ….” Id. § 2.
Furthermore, section 2 mandates that “medical or surgical treatment, consultation or advice may
be given by shareholders, directors, officers, agents, and employees of the corporation only if
they are licensed pursuant to the Medical Practice Act of 1987.” (Emphasis added.) Id.
¶ 17 Notably, the Medical Corporation Act does not contain any requirement that a
medical corporation itself be “licensed.” Instead, section 5 states: “No corporation shall open,
operate or maintain an establishment for any of the purposes set forth in Section 2 of this Act
without a certificate of registration from the Department.” Id. § 5. Corporations may obtain a
“certificate of registration” by submitting a written application containing the corporation’s name
and primary mailing address, the name and address of the registered agent, other information as
may be required by the Department, and payment of the $50 registration fee. Id. Upon receipt of
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the application, the Department investigates the corporation to ensure that the “incorporators,
officers, directors and shareholders are all licensed pursuant to the [Medical Practice Act]” and
that there are no disciplinary actions pending against any of them. Id.
¶ 18 Nearly all of the Medical Corporation Act’s uses of the term “license” refer to
individuals properly licensed under the Medical Practice Act, like the above language in section
2. For example, section 13 of the Medical Corporation Act mandates that, “[a]ll of the officers,
directors and shareholders of a corporation subject to this Act shall at all times be persons
licensed pursuant to the [Medical Practice Act].” (Emphasis added.) Id. § 13(a). Section 13 also
states that “[n]o corporation may issue any of its capital stock to anyone other than an individual
who is duly licensed under the [Medical Practice Act].” (Emphasis added.) Id. § 13(b). Section
13 adds that
“[a] corporation may, for purposes of dissolution, have as its shareholders,
directors, officers, agents, and employees individuals who are not licensed under
the [Medical Practice Act], provided that the corporation does not render any
medical services nor hold itself out as capable of or available to render medical
services during the period of dissolution.” (Emphases added.) Id. § 13(c).
Moreover, section 10 of the Medical Corporation Act states that the Department “may suspend
or revoke any certificate of registration or may otherwise discipline the certificate holder” for
several reasons, including “the revocation or suspension of the license to practice medicine of
any officer, director, shareholder or employee not promptly removed or discharged by the
corporation.” (Emphases added.) Id. § 10.
¶ 19 The only place that “license” is used relating to a corporation is in section 6.1 of
the Medical Corporation Act, which mandates that if the registration renewal fee is paid by a
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check that is not honored by a financial institution due to insufficient funds and the corporation
continues to practice, “an additional fee of $100 shall be imposed for practicing without a current
license.” Id. § 6.1. Section 6.1 also states:
“The Department shall notify the corporation whose certificate of registration has
lapsed, within 30 days after the discovery by the Department that such
corporation is practicing without a current certificate, that the corporation is
operating without a certificate, and of the amount due to the Department, which
shall include the lapsed renewal fee and all other fees required by this Section.”
(Emphases added.) Id.
¶ 20 Therefore, there is ambiguity in the statute regarding the terms “license” and
“certificate.” The Medical Corporation Act does not define “license.” However, section 18 of the
Medical Corporation Act states that the Illinois Administrative Procedure Act (5 ILCS 100/1-1
et seq. (West 2018)) is incorporated “as if all of the provisions” were included. 805 ILCS 15/18
(West 2018). The Illinois Administrative Procedure Act defines “license” as “the whole or part
of any agency permit, certificate, approval, registration, charter, or similar form of permission
required by law, but it does not include a license required solely for revenue purposes.”
(Emphasis added.) 5 ILCS 100/1-35 (West 2018).
¶ 21 This apparent ambiguity in the statute is illuminated by analogous case law.
¶ 22 2. Analogous Case Law
¶ 23 Plaintiff relies primarily on Solich. In Solich, the plaintiff originally brought an
action alleging that his condition could have been averted if the defendant had not negligently
failed to report to him the results of a chest X-ray taken in 1975. His wife, who eventually
succeeded him in the case after he died, asserted her own claim for loss of consortium. Solich,
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158 Ill. 2d at 78. The question before our supreme court was whether the defendant not-for-profit
corporation that administered an examination of the deceased plaintiff fell under the protection
of a previous version of the statute of repose at issue in this case.
Id. at 81-82.
¶ 24 The supreme court held that the defendant did not fall within the parameters of the
statute, as it was not a physician, dentist, registered nurse, or hospital and held no licenses under
the Medical Practice Act or other similar acts which require licensure.
Id. at 82. Although the
court noted that the “statutory reference to physicians includes corporations formed to practice
medicine under the Medical Corporation Act” (id. (citing Real,
112 Ill. App. 3d at 436)), the
court concluded that the defendant was “not licensed and does not qualify to be licensed as a
medical corporation under that statute” (id. at 82-83). Plaintiff also relies on a line from Real,
stating that a “corporation formed to practice medicine must be licensed by the State.” Real,
112
Ill. App. 3d at 436. We follow the holdings in Solich and Real that the statute of repose only
covers medical corporations who are “duly licensed” and are properly incorporated as a medical
corporation. However, neither Solich nor Real define or reason how a medical corporation is
“duly licensed.”
¶ 25 Our supreme court’s decision in Chatham is instructive on this issue. In Chatham,
the court held that the terms “license” and “certificate of registration,” as used in the Professional
Service Corporation Act (805 ILCS 10/1 et seq. (West 2000)), are not “functionally equivalent.”
Chatham,
216 Ill. 2d at 398. There, the other statute at issue was the Podiatric Medical Practice
Act of 1987 (Podiatric Medical Practice Act) (225 ILCS 100/1 et seq. (West 2000)).
¶ 26 Plaintiff argues that because the statutes in the current case are different, Chatham
is inapplicable. We disagree due to the overwhelming similarities between the statutes in
Chatham and the statutes in the case before us. The court in Chatham analyzed provisions of the
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Podiatric Medical Practice Act and found that it contained a licensing structure for practitioners
and was enacted for the public health, safety, and welfare, whereas the Professional Service
Corporation Act was enacted to allow professionals to join together and incorporate. The
provisions of the Professional Service Corporation Act the court examined are similar to the
Medical Corporation Act before us now. For example, section 12 of the Professional Service
Corporation Act (805 ILCS 10/12 (West 2018)) and section 5 of the Medical Corporation Act
(805 ILCS 15/5 (West 2018)) both govern “certificates of registration” and are nearly identical,
as are section 13 of the Professional Service Corporation Act (805 ILCS 10/13 (West 2018)) and
section 10 of the Medical Corporation Act (805 ILCS 15/10 (West 2018)), which concern the
suspension or revocation of certificates of registration. Because of these striking similarities and
others, we find the reasoning in Chatham persuasive and informative.
¶ 27 In Chatham, the issue was whether a contract was void because the plaintiff failed
to obtain a certificate of registration from the Department, as required by the Professional
Service Corporation Act. The court began its analysis with the principle that “courts will not
enforce a contract involving a party who does not have a license called for by legislation that
expressly prohibits the carrying on of the particular activity without a license where the
legislation was enacted for the protection of the public, not as a revenue measure.” (Internal
quotation marks omitted.) Chatham, 216 Ill. 2d at 381. Therefore, the court stated the question
presented was “whether the [Professional Service Corporation Act’s] certificate of registration
requirement is an administrative mechanism by which professionals may provide their services
in the corporate form, or whether it is a regulatory provision intended to protect the health, safety
and welfare of the public.”
Id. at 382. In other words, similar to the issue in the case before us,
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the Chatham court considered whether the certificate of registration required by the Professional
Service Corporation Act was a license.
¶ 28 When reviewing the Professional Service Corporation Act’s certificate
requirement, the Chatham court stated:
“Upon reviewing the relevant provisions of the Podiatric Medical Practice
Act and the [Professional Service Corporation Act], we agree with plaintiff that
the requirement imposed by section 12 of the [Professional Service Corporation
Act] on professional service corporations to obtain a certificate of registration was
not enacted as a regulatory measure to protect the public health, safety and
welfare. We hold that the appellate court erred in concluding that the terms
‘license’ and ‘certificate of registration’ are synonymous, as nothing in the
relevant statutory provisions supports the appellate court’s interpretation that a
‘license’ and a ‘certificate of registration’ are functionally equivalent.” Chatham,
216 Ill. 2d at 389.
¶ 29 The court analyzed the statutory prerequisites for a certificate of registration
under the Professional Service Corporation Act and a license under the Podiatric Medical
Practice Act. It found the prerequisites for a license are more rigorous and require the applicant
to “prove competency in that profession.”
Id. at 392. In contrast, obtaining a certificate of
registration is simpler, requiring only an application and a $50 registration fee; it requires no
professional training or examination.
Id. The Professional Service Corporation Act requires that
individuals seeking to incorporate must be licensed.
Id. at 392-93. This is similar to the Medical
Corporation Act’s requirements for incorporation. See 805 ILCS 15/2 (West 2018). The court
reasoned:
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“In other words, the [Professional Service Corporation Act] provides that an
individual or group of individuals, who are currently ‘licensed as individuals to
engage in the profession,’ may form a professional service corporation through
which they may provide their services to the public. There is no need for the
legislature to require that the individuals forming the professional service
corporation be licensed as a prerequisite to that corporation obtaining a certificate
of registration unless a license and a certificate of registration are two separate
concepts which serve two distinct purposes.” (Emphases in original.) Chatham,
216 Ill. 2d at 393.
¶ 30 Furthermore, the court rejected language in the Professional Service Corporation
Act stating that “license” and “certificate of registration” were synonymous. Section 3.3 of the
Professional Service Corporation Act defines “license” as including a “certificate of
registration.” 805 ILCS 10/3.3 (West 2000). The Chatham court rejected this explicit language
and reasoned:
“Section 3.3 of the [Professional Service Corporation Act] defines ‘license’ as ‘a
license, certificate of registration or any other evidence’ that establishes ‘the
satisfaction of the requirements of this State … for the practice of a professional
service.’ … 805 ILCS 10/3.3 (West 2000). Thus, pursuant to the plain language
of section 3.3, anything deemed evidence of satisfying the state requirements to
lawfully practice a profession falls within the definition of a ‘license.’ It logically
follows, therefore, that anything called a ‘certificate of registration’ which does
not demonstrate the satisfaction of state requirements to practice a profession is
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not a ‘license’ under the [Professional Service Corporation Act].” (Emphases
omitted.) Chatham, 216 Ill. 2d at 393-94.
This line of reasoning further supports the court’s holding that whether the terms “license” and
“certificate of registration” are interchangeable depends on if they are “functionally equivalent.”
¶ 31 The court also analyzed the statutory provisions of the Professional Service
Corporation Act that require the incorporators to be licensed and keep up their licenses.
Id. at
394-95. The court concluded that the Professional Service Corporation Act does not “assure
professionalism and competence in the practice of podiatry. Rather, the [Professional Service
Corporation Act] provisions underscore that the professional service corporation is simply the
vehicle by which the General Assembly allows licensed individuals to practice their profession
in the corporate form, and thereby reap the benefits of incorporation.”
Id. at 396.
¶ 32 The court additionally relied on the fact that there were no civil or criminal
penalties in the Professional Service Corporation Act associated with noncompliance with the
“certificate of registration” requirement, other than simple fees. The court reasoned that larger
penalties “would indicate that the provision was enacted because it had a significant impact on
the public welfare.”
Id. at 397 (citing Riggs v. Woman to Woman, Obstetrics & Gynecology,
P.C.,
351 Ill. App. 3d 268, 272 (2004)). Similarly, section 13.5 of the Medical Corporation Act
states:
“Whenever the Department has reason to believe a corporation has opened, operated, or
maintained an establishment for any of the purposes for which a corporation may be
organized under this Act without a certificate of registration from the Department, the
Department may issue a notice of violation to the corporation.” 805 ILCS 15/13.5 (West
2018).
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The notice provides 30 days to either provide an answer or file an application to comply, along
with a $50 fee and $100 for each year the corporation operated without the certificate. Id. If the
corporation fails to do this, the Department “may institute disciplinary proceedings against the
corporation and may impose a civil penalty up to $1,000.”
Id. Thus, like the Professional Service
Corporation Act, the lack of serious penalties indicates that the Medical Corporation Act was not
intended to protect the public welfare.
¶ 33 Further supporting its decision, the Chatham court cited Ford Motor Credit Co. v.
Sperry,
214 Ill. 2d 371 (2005). In Ford Motor, our supreme court explained that there is a
“fundamental difference between an unlicensed individual representing a party in
legal proceedings or performing activities traditionally considered to be the
‘practice of law’ and duly licensed attorneys who happen to belong to a law firm
that has not filed its registration and paid its fees pursuant to [Illinois Supreme
Court] Rule 721(c) [(eff. July 1, 2003)]. The material inquiry in assessing whether
there has been an unauthorized practice of law is whether the individual who acts
on behalf of a client is duly licensed by this court, as it is only individuals—and
not corporations—who are granted the privilege to practice law.” Id. at 387.
The court in Ford Motor reasoned that the public faced a risk of harm from unlicensed
individuals engaging in the practice of law and that an unregistered law firm did not pose a risk
of harm to the public, but, rather, harmed itself.
Id. at 387-88. We find the reasoning of both the
Chatham and Ford Motor courts applicable to the interplay between the Medical Practice Act
and the Medical Corporation Act.
¶ 34 3. The Legislative Structure of the Medical Practice Act
and Medical Corporation Act
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¶ 35 The practice of medicine is governed by the Medical Practice Act, similar to how
the practice of podiatry is governed by the Podiatric Medical Practice Act. The Medical Practice
Act, not the Medical Corporation Act, sets forth the requirements to be licensed to practice. To
apply for a license under the Medical Practice Act, an individual must submit an application,
along with satisfactory evidence of “good moral character,” “preliminary and professional
education required by [the Medical Practice Act],” and physical, mental, and professional
capability of “practicing medicine with reasonable judgment, skill, and safety.” 225 ILCS 60/9
(West 2018). In determining professional capacity, the medical board may consider the following
criteria:
“(1) Medical research in an established research facility, hospital, college or
university, or private corporation.
(2) Specialized training or education.
(3) Publication of original work in learned, medical, or scientific journals.
(4) Participation in federal, State, local, or international public health
programs or organizations.
(5) Professional service in a federal veterans or military institution.
(6) Any other professional activities deemed to maintain and enhance the
clinical capabilities of the applicant.” Id.
¶ 36 Conversely, to apply for a certificate of registration under the Medical
Corporation Act, incorporators (licensed under the Medical Practice Act) need only submit an
application and pay a registration fee. There is a difference in the purpose of a “license” and a
“certificate of registration.” Similar to the Podiatric Medical Practice Act, a “license” under the
Medical Practice Act is a substantive and regulatory check intended to (1) ensure that an
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individual is qualified to practice and (2) protect the public health, safety, and welfare. On the
other hand, a “certificate of registration” as required by the Medical Corporation Act and the
Professional Service Corporation Act is part of an administrative process by which individuals
can benefit from the corporate form and the state can raise revenue. The Medical Corporation
Act’s various provisions require that incorporators, officers, directors, shareholders, and
employees be licensed to practice, not the corporation. See 805 ILCS 15/5, 13 (West 2018). Like
the Professional Service Corporation Act, the legislative scheme of the Medical Corporation Act
demonstrates that it was intended to allow one or more individuals who are licensed under the
Medical Practice Act to perform the same professional or related services together and form a
corporation through which they can render such services to the public.
¶ 37 Also supporting our decision are the penalties for violations of the Medical
Practice Act and the Medical Corporation Act. Under the Medical Corporation Act, a “certificate
of registration” can be suspended or revoked for any of the following reasons:
“(a) the revocation or suspension of the license to practice medicine of any
officer, director, shareholder or employee not promptly removed or discharged by
the corporation; (b) unethical professional conduct on the part of any officer,
director, shareholder or employee not promptly removed or discharged by the
corporation; (c) the death of the last remaining shareholder; or (d) upon finding
that the holder of a certificate has failed to comply with the provisions of this Act
or the regulations prescribed by the Department.” Id. § 10.
It is telling that each subpart pertains to conduct by an individual, not the corporation itself.
Moreover, as discussed earlier in this decision, the financial penalties contained in the Medical
Corporation Act are minor. See id. §§ 6.1, 13.5. Contrast this with the penalties contained in the
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Medical Practice Act. Section 22 states that the Department “may revoke, suspend, place on
probation, reprimand, refuse to issue or renew, or take any other disciplinary or non-disciplinary
action as the Department may deem proper with regard to the license or permit of any person
issued under this Act, including imposing fines not to exceed $10,000.” 225 ILCS 60/22(A)
(West 2018). Violations under this section include various criminal offenses, gross negligence,
fraud, habitual or excessive drug use, practice under a false name, and the falsification of
records. Id. It is clear that violations committed by an individual under the Medical Practice Act
are more severe than those committed by a corporation under the Medical Corporation Act.
¶ 38 In sum, based on a review of case law and the statutory language, the terms
“license” and “certificate of registration” are not functionally equivalent as used in the Medical
Practice Act and Medical Corporation Act. Therefore, obtaining a “certificate of registration”
does not make a medical corporation “duly licensed,” as required by the statute of repose.
Likewise, failure to obtain a certificate does not mean a medical corporation lacks a license.
¶ 39 4. Application to This Case
¶ 40 This leaves us in a difficult position where (a) a medical corporation is covered by
the statute of repose, (b) the legislative intent of the General Assembly clearly indicates that the
statute of repose applies only to entities “duly licensed,” and (c) the Medical Corporation Act
does not require medical corporations to be licensed and therefore a medical corporation is
essentially either never “duly licensed” or always “duly licensed.” This is an absurd and illogical
outcome, which we are to avoid. As we stated earlier, in construing a statute, we presume that
the General Assembly did not intend absurdity, inconvenience, or injustice. Chatham, 216 Ill. 2d
at 382. It would certainly be an absurd and unjust result if a practitioner must be licensed in order
to benefit from the statute of repose, but a medical corporation may benefit indeterminately. It
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would also be absurd and against the intent of the Generally Assembly for a medical corporation
to never benefit from the protections of the statute of repose.
¶ 41 After a thorough review of the statutory language of the statute of repose, the
legislative scheme laid out by the Medical Corporation Act and Medical Practice Act, and the
case law examined above, it is clear that licensure to conduct the actual practice of medicine
rests on the individuals in a medical corporation. And, as the statute of repose covers actions for
damages “arising out of patient care,” we hold that a medical corporation incorporated under the
Medical Corporation Act is “duly licensed” if the physician, dentist, registered nurse, or other
practitioner or officer from whose conduct the claim arises out of is properly licensed under the
Medical Practice Act.
¶ 42 In this case, the trial court found that Dr. Ogunleye was “duly licensed” under
Illinois law and that the statute of repose applied to him. Plaintiff did not appeal that outcome.
Therefore, as the claims arise out of patient care provided by Dr. Ogunleye, an employee of
AWH who was properly licensed under Illinois law, AWH is likewise “duly licensed” and
protected by the statute of repose.
¶ 43 Plaintiff argues that the questions surrounding AWH’s registration status should
create a genuine issue of material fact. A material fact is one that, under the applicable law, could
affect the outcome of the case. Stivers v. Bean, 2014 IL App (4th) 130255, ¶ 21. Due to our
holding in this case, a medical corporation’s registration status has no bearing on its status as a
“duly licensed” corporation. Therefore, it is not a material fact.
¶ 44 B. Claims Arising Out of Patient Care
¶ 45 Plaintiff’s second contention is that AWH’s failure to inform the deceased of her
diagnosis was not a medical malpractice claim, but rather an institutional negligence claim. As
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such, the statute of repose for medical malpractice claims would not apply and we should reverse
the trial court’s decision.
¶ 46 Again, the statute of repose at issue in this case states that:
“[N]o action for damages for injury or death against any physician … or hospital
duly licensed … 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 … of the existence of the injury or death for which damages are sought in
the action, whichever … occurs first, but in no event shall such action be brought
more than 4 years after the date on which occurred the act … alleged in such
action to have been the cause of such injury or death.” (Emphasis added.) 735
ILCS 5/13-212 (West 2018).
¶ 47 Thus, plaintiff’s arguments that the claims in this case are not medical malpractice
claims is irrelevant to the analysis; in order to enjoy the protections of the statute, the conduct
must “arise out of patient care.” Plaintiff also argues the conduct in this case does not “arise out
of patient care.” Instead, he characterizes it as institutional miscommunication. Defendant argues
the conduct did “arise out of patient care” and falls under the purview of the statute. Courts have
held that the phrase “arising out of patient care” has a broad meaning. Orlak v. Loyola University
Health System, 228 Ill. 2d 1, 14 (2007) (“It is clear that the legislature intended the statute of
repose to operate in a very broad manner and it has been interpreted in that manner by courts
addressing the issue.”) “The question is not whether the plaintiff has alleged medical negligence
or ordinary negligence. Rather, the sole issue is whether the plaintiff’s claim arose from patient
care.”
Id.
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¶ 48 In Orlak, our supreme court addressed a similar set of facts. There, the plaintiff
filed a complaint against Loyola University Health System, alleging it was negligent for not
contacting her about the possibility that she contracted hepatitis C from a blood transfusion. Id.
at 4. The hospital filed a motion to dismiss under the statute of repose, stating her complaint was
time barred. The motion was granted by the trial court, and on appeal, the appellate court
affirmed the trial court’s holding.
Id. The supreme court agreed, stating, “Only claims ‘arising
out of patient care’ are affected by the medical malpractice statute of repose.”
Id. at 8. In order
for an injury to “arise out of patient care,” there must simply be a causal connection between the
patient’s medical care and the alleged injury.
Id. at 16. The court in Orlak concluded that,
although the failure to notify the plaintiff was not medical care, the duty to notify her flowed
directly from the blood transfusion that was given in the course of treating her for burns.
Id. The
injury and the medical care were, therefore, causally connected, and her claims arose out of
patient care.
Id. at 17.
¶ 49 Similarly, then, plaintiff’s claim here also arises out of patient care. Whorrall
underwent surgery performed by Dr. Ogunleye at AWH. A report from that surgery included a
diagnosis of “left ovarian tumor with features suggestive of possible sex cord tumor with annular
tubules.” The case was referred to Mayo Clinic for a second opinion, which confirmed “mixed
granulosa cell tumor and sex cord stromal tumor with annular tubules.” Plaintiff alleges AWH
failed to inform Whorrall of these results, which resulted in an injury. So, just as in Orlak, her
injury was causally connected to the medical care she received, and her claim therefore “arose
out of patient care.”
¶ 50 Plaintiff’s attempts to characterize the claims in this case as “institutional
negligence” fail. Plaintiff argues two propositions: (1) that institutions may be held negligent in
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their own capacity and not merely under a respondeat superior theory and (2) that institutional
negligence is not medical malpractice. We need not address either of these arguments, as the
only issue is whether the conduct alleged of AWH “arose out of patient care,” and we conclude
that it did.
¶ 51 III. CONCLUSION
¶ 52 In conclusion, we affirm the trial court’s judgment. The statute of repose bars
plaintiff’s claims against AWH, as the claims arise out of patient care and AWH was duly
licensed as required by the statute of repose.
¶ 53 Affirmed.
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Hamblin v. Ogunleye, 2024 IL App (4th) 240645
Decision Under Review: Appeal from the Circuit Court of McLean County, No. 22-LA-
151; the Hon. Don Knapp, Judge, presiding.
Attorneys Chase T. Molchin, of Ginzkey & Molchin, LLC, of
for Bloomington, for appellant.
Appellant:
Attorneys Jonathan J. Bobell and Margaret M. Rhoades, of Livingston,
for Barger, Brandt & Schroeder, LLP, of Bloomington, for
Appellee: appellees.
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