Docket No. 102534.

IN THE

 SUPREME COURT

OF

THE STATE OF ILLINOIS

DIANE ORLAK, Appellant, v. LOYOLA UNIVERSITY HEALTH

SYSTEM et al., Appellees.

Opinion filed December 28, 2007.

JUSTICE GARMAN delivered the judgment of the court, with

opinion.

Justices Freeman, Fitzgerald, and Karmeier concurred in the

judgment and opinion.

Justice Kilbride specially concurred, with opinion.

Justice Burke dissented, with opinion.

Chief Justice Thomas took no part in the decision.

OPINION

In July 2002, plaintiff, Diane Orlak, sued defendant Loyola

University Health System (Loyola) in the circuit court of Cook

County, alleging that Loyola was liable to her for an alleged failure to

notify her in a timely manner that she may have contracted hepatitis C

(HCV) from a blood transfusion that she received in 1989 during

hospitalization for injuries sustained in an accident. The circuit court

granted Loyola’s motion to dismiss, finding that plaintiff’s action was

barred by the statute of repose contained in section 13–212(a) of the

Code of Civil Procedure (Code) (735 ILCS 5/13–212(a) (West

2002)). The appellate court affirmed (No. 1–04–0401 (unpublished
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order under Supreme Court Rule 23)) and we granted plaintiff’s

petition for leave to appeal (210 Ill. 2d R. 315).

BACKGROUND

Plaintiff was hospitalized at Foster G. McGaw Hospital in

Maywood, Illinois, in April and May 1989, for burns suffered during

a work-related accident. During the course of her hospitalization,

plaintiff was given a blood transfusion. Because plaintiff was

unconscious at the time, her mother signed a consent form for the

transfusion. That form stated in part, “In making such request and in

giving such consent, I hereby acknowledge that I have been informed

that there is no known definitive test for the determination of the

existence or non-existence of viral hepatitis in blood and that I fully

understand that the transfusion or administration of blood or blood

components to me may result in viral hepatitis or other untoward

reactions.” Sometime in 1990, Loyola advised plaintiff to be tested for

the presence of the human immunodeficiency virus (HIV). Plaintiff

underwent testing and tested negative for the presence of the virus. In

August 2000, Loyola notified plaintiff by letter that she should be

tested for HCV because her blood donor had recently tested positive

for the virus. After being tested, plaintiff learned that the test was

positive for HCV.

 In her third amended complaint, plaintiff alleged that following

Loyola’s advice to her in 1990 to be tested for HIV, she reasonably

believed that, after testing negative for that virus, the blood she had

received was safe and free from deadly disease. She also took issue

with Loyola’s statement in its August 2000 letter that at the time she

received her blood transfusion, no reliable tests for HCV were

available. She alleged that in 1996, the Food and Drug Administration

(FDA) issued a memorandum to hospitals advising them to notify

patients who received blood transfusions prior to 1992 to be tested for

the presence of HCV. Plaintiff also alleged that in 1997 the National

Institutes of Health (NIH) published a “Consensus Development

Conference Statement,” which found that HCV progresses at a slow

rate with no symptoms in the majority of patients during the first 20

years after infection. The NIH also found that HCV patients who

consume alcoholic beverages are at greater risk of rapidly developing

cirrhosis of the liver and end-stage liver disease. The NIH
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recommended that individuals who had received blood transfusions

prior to 1990 should be tested for HCV. According to plaintiff, the

NIH report was posted on the Internet in April 1997 and was

published in the Journal of Hepatology in September 1997.

Plaintiff’s complaint contained counts alleging constructive fraud,

medical negligence, medical battery, and ordinary negligence. In count

I, for constructive fraud, plaintiff alleged that Loyola’s failure to

inform her of the need to be tested for HCV at the time it advised her

to be tested for HIV lulled her into a false sense of security that the

blood she had received was free of disease. She alleged that her

reliance in that regard was justifiable and reasonable. In count IV, for

ordinary negligence, plaintiff alleged that in 1996 and 1997 Loyola

knew or should have known of the need for plaintiff to be tested for

HCV and that, beginning in 1996, or at the latest in March 1997,

Loyola owed plaintiff a duty of reasonable care to notify her that she

had potentially contracted HCV through her blood transfusion and

that she needed to be tested. Plaintiff also alleged that for every day

thereafter that the duty existed, Loyola continued to breach its duty

of care by failing to notify plaintiff of the potential for infection and

the need to be tested.

Loyola filed a motion to dismiss all counts (735 ILCS

5/2–619(a)(5) (West 2002)) on the ground that plaintiff’s action was

time-barred. Loyola argued that plaintiff’s cause of action arose out

of patient care stemming from her 1989 hospitalization and blood

transfusion. Thus, the medical malpractice statute of repose (735

ILCS 5/13–212(a) (West 2002)) was applicable. Loyola argued that

this applied as well to plaintiff’s claims for constructive fraud and

ordinary negligence. The circuit court agreed and dismissed plaintiff’s

complaint with prejudice.

The appellate court affirmed. With respect to plaintiff’s ordinary

negligence claim, the court rejected her argument that because she

was no longer a patient and she challenged only the failure to timely

give notice of the need for testing, her cause of action did not arise

out of patient care. The appellate court also rejected plaintiff’s

constructive fraud and equitable estoppel claims. No. 1–04–0401

(unpublished order under Supreme Court Rule 23).
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ANALYSIS

I

A motion to dismiss under section 2–619 of the Code admits the

legal sufficiency of the complaint, but asserts some affirmative matter

that defeats the claim. King v. First Capital Financial Services Corp.,

215 Ill. 2d 1, 12 (2005). In ruling on the motion, the circuit court

must interpret all pleadings and supporting documents in the light

most favorable to the nonmoving party. Borowiec v. Gateway 2000,

Inc., 209 Ill. 2d 376, 383 (2004). Our standard of review in this

appeal is de novo. DeSmet v. County of Rock Island, 219 Ill. 2d 497,

504 (2006).

II

Plaintiff argues that the circuit and appellate courts erred in

holding that the four-year medical malpractice statute of repose

applies to bar her claim for ordinary negligence. That statute provides

in part:

“Except as provided in Section 13–215 of this Act, 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.”

(Emphasis added.) 735 ILCS 5/13–212(a) (West 2002).

This statute contains both a two-year period of limitations and a

four-year period of repose. The two-year limitations period is

triggered by the plaintiff’s discovery of the injury; in contrast, the

four-year repose period is triggered by the occurrence of the act or

omission that caused the injury. The only exception to the four-year

statute of repose is the fraudulent-concealment exception contained
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in section 13–215 of the Code (735 ILCS 5/13–215 (West 2002)).

The statute of repose sometimes bars actions even before the plaintiff

has discovered the injury. While this may result in harsh consequences,

the legislature enacted the statute of repose for the specific purpose

of curtailing the “long tail” exposure to medical malpractice claims

brought about by the advent of the discovery rule. Anderson v.

Wagner, 79 Ill. 2d 295, 312 (1979).

Only claims “arising out of patient care” are affected by the

medical malpractice statute of repose. Our analysis of this issue is

governed by familiar principles of statutory construction. The cardinal

rule of statutory construction is to ascertain and give effect to the

intent of the legislature. Murray v. Chicago Youth Center, 224 Ill. 2d

213, 235 (2007). That intent is best gleaned from the words of the

statute itself, and where the statutory language is clear and

unambiguous, it must be given effect. General Motors Corp. v. State

of Illinois Motor Vehicle Review Board, 224 Ill. 2d 1, 13 (2007). A

court should interpret a statute, where possible, according to the plain

and ordinary meaning of the language used. Paris v. Feder, 179 Ill. 2d

173, 177 (1997). In determining the plain meaning of a statute’s

terms, we consider the statute in its entirety, keeping in mind the

subject it addresses, and the apparent intent of the legislature in

enacting the statute. People v. Perry, 224 Ill. 2d 312, 323 (2007).

Issues of statutory construction are reviewed de novo. Paris, 179 Ill.

2d at 177-78.

Plaintiff argues that the question in this case is whether the injury

she has alleged arose from patient care or from an administrative

decision by Loyola not to send notice of the need to be tested for

HCV. She argues that, under the appellate court’s construction of the

statute, once a person becomes a patient of a medical provider,

virtually any subsequent interaction between the patient and the

provider is governed by the statute of repose. According to plaintiff,

such a construction would impermissibly expand the scope of the

statute beyond its plain language. She points out that her “patient

care” ended in 1989 and that she has not alleged any wrongdoing by

Loyola during the time she was hospitalized. Plaintiff believes that by

using the phrase “arising out of patient care,” the legislature intended

the statute of repose to govern claims based on events that involve

actual patient care.
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Loyola, on the other hand, argues that plaintiff’s interpretation of

the phrase “arising out of patient care” is much too narrow. That

plaintiff’s hospitalization ended long ago is not determinative; it is the

nature of the conduct, not the timing thereof, that determines whether

a claim arises out of patient care. Loyola argues that accepting

plaintiff’s interpretation would eviscerate the statute of repose because

plaintiffs could avoid the statute by casting their claims as based on a

failure to provide follow-up care at a later date. According to Loyola,

plaintiff’s contention that Loyola breached only an administrative duty

by its failure to notify her in 1996 and 1997 would impose a duty with

no temporal bounds on Loyola and other health-care providers.

Plaintiff cites several Illinois and foreign cases in support of her

argument. Cammon v. West Suburban Hospital Medical Center, 301

Ill. App. 3d 939 (1998), dealt, in relevant part, with a claim against the

defendant hospital for spoliation of evidence. One ground upon which

the circuit court dismissed the claim was that the action was filed

outside the statute of repose. The appellate court disagreed, noting

that a negligence action for spoliation of evidence is predicated on a

breach of the duty to preserve evidence. It does not involve patient

care. Thus, the claim was not governed by the medical malpractice

statute of repose. Cammon, 301 Ill. App. 3d at 950. Contrary to

plaintiff’s argument, Cammon is not applicable to this case. The duty

there had nothing whatever to do with patient care. It dealt with a

duty imposed on a party to the litigation to preserve evidence relevant

to the case. Cammon stands only for the unremarkable proposition

that not all negligence actions against physicians or hospitals involve

patient care.

Plaintiff also cites a Tennessee case, Estate of Doe v. Vanderbilt

University, Inc., 958 S.W.2d 117 (Tenn. App. 1997). There, the

plaintiff’s decedent received a blood transfusion in 1984 in connection

with surgery. The donor blood was not tested for the presence of

HIV. The decedent was not informed that she had received the

transfusion, nor was she advised that she was at risk of having been

infected with HIV. She later married and became pregnant. It was

only when she gave birth to a daughter who had become infected with

the virus in utero that the decedent learned of her condition. The

infant died of acquired immune deficiency syndrome (AIDS) shortly

after her birth and the decedent died of AIDS subsequent to the
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initiation of a lawsuit against Vanderbilt based on Vanderbilt’s failure

to notify the decedent in 1987 and 1988 that the blood she received

in the transfusion had not been tested for HIV. Vanderbilt admitted

that it did not search its records to provide notice to transfusion

recipients. The circuit court found that the case was governed by the

Tennessee medical malpractice statute and that absent expert

testimony that Vanderbilt had deviated from the recognized standard

of care for hospitals in the area, no genuine issue of material fact

existed and that summary judgment was appropriate. The court of

appeals phrased the issue as whether Vanderbilt’s failure to notify

decedent and other patients was a medical decision subject to the

medical malpractice statute. The court determined that it was not.

Extensive evidence had been taken in the circuit court in connection

with Vanderbilt’s summary judgment motion. That evidence

convinced the court of appeals that the decision not to notify was not

a medical one. Doe, 958 S.W.2d at 121.

Doe is inapplicable to the instant case. We are not concerned with

whether Loyola’s failure to notify in 1996 and 1997 involved the

exercise of medical judgment or some other type of judgment. The

only inquiry is whether plaintiff’s cause of action arose from patient

care. This is a completely different standard from the one involved in

Doe.

Plaintiff also cites a Georgia case, Canas v. Al-Jabi, 282 Ga. App.

764, 639 S.E.2d 494 (2006). The plaintiff in that case had received

blood transfusions in 1985 while a pediatric patient at a hospital. The

blood was not tested for the presence of HIV. The plaintiff developed

AIDS, which was not diagnosed until he was a teenager. The hospital

considered implementing a notification program, but decided not to do

so based on concerns about the expense, logistical complexity, and

legal implications of such a program. The relevant inquiry as framed

by the Georgia court of appeals was whether the case involved a

“medical question,” which the court defined as requiring highly

specialized expert knowledge with respect to which a layperson can

have no knowledge at all. The court contrasted acts involving such

medical questions with administrative, clerical, or routine acts

demanding no special expertise. Those acts, the court stated, fall into

the realm of ordinary negligence. Canas, 282 Ga. App. at 787-88, 639

S.E.2d at 517. The court noted that the record showed the decision
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not to notify the plaintiff and others like him of the risk of HIV

infection was not based on medical expertise but, rather, was based on

administrative concerns. Thus, the court concluded that the plaintiff’s

claim was based on ordinary negligence and was not subject to the

medical malpractice statutes of limitation and repose. Canas, 282 Ga.

App. at 790, 639 S.E.2d at 518.

As with Doe, the Canas case does not support plaintiff’s

argument. The statute of repose in Canas stated that an “action for

medical malpractice” may not be brought more than five years after

the date on which the negligent act or omission occurred. Canas, 282

Ga. App. at 770, 639 S.E.2d at 505-06. In contrast, the Illinois statute

of repose encompasses any action for damages arising out of patient

care, regardless of whether it arises from a tort, a contract, or from

some other source. Indeed, this court has held that the reach of the

statute is not limited to actions at law. In Hayes v. Mercy Hospital &

Medical Center, 136 Ill. 2d 450, 458 (1990), we held that the

legislature intended the phrase “or otherwise” in the statute of repose

to be all-inclusive and we concluded that the phrase includes actions

for contribution against a physician for injuries arising out of patient

care.

Plaintiff also argues the fact that the requirements of section

2–622 of the Code (735 ILCS 5/2–622 (West 2002)) do not apply to

her case provides further support for her contention that her claims

against Loyola do not arise out of patient care. Section 2–622 requires

a plaintiff who seeks damages due to “injuries or death by reason of

medical, hospital, or other healing art malpractice” to obtain an

attorney’s affidavit and health professional’s report stating that there

is a reasonable and meritorious cause for filing a lawsuit. However,

section 2–622 focuses only on actions involving some form of medical

malpractice. As we have stated, the statute of repose at issue here

encompasses a much broader range of claims. Nowhere does the

statute of repose mention the words “malpractice” or “healing arts

malpractice.” Thus, the inapplicability of section 2–622 to this case

does not impact the issue of whether plaintiff’s cause of action arises

from patient care.

Courts that have addressed the issue have given the phrase

“arising out of patient care” a broad meaning. In Miller v. Tobin, 186

Ill. App. 3d 175 (1989), the plaintiff and his wife were receiving
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marriage counseling from the defendant, a psychiatrist. The plaintiff

alleged that the defendant had disclosed confidential information to

the plaintiff’s wife, in violation of the Mental Health and

Developmental Disabilities Confidentiality Act. The trial court

dismissed the action on the ground that it had not been filed within the

two-year statute of limitations in section 13–212 of the Code. The

appellate court affirmed, rejecting the plaintiff’s argument that because

his complaint did not allege malpractice, section 13–212 did not apply.

The court noted that a statute of limitations is to be construed in light

of its objectives and that the phrase “arising out of” is broad and

generally means “originating from,” “growing out of,” or “flowing

from.” The court observed that the plaintiff’s alleged injury occurred

during the course of the defendant’s treatment of the plaintiff’s wife;

thus, the alleged injury arose from patient care. Miller, 186 Ill. App.

3d at 177-78.

In Walsh v. Barry-Harlem Corp., 272 Ill. App. 3d 418 (1995), the

plaintiff filed a complaint under the Consumer Fraud and Deceptive

Business Practices Act (Consumer Fraud Act), alleging that the

defendants falsely represented to the plaintiff that he needed eye

surgery and that they altered notes from the plaintiff’s eye testing to

justify the surgery. The trial court dismissed the complaint as barred

by the two-year statute of limitations contained in section 13–212 of

the Code. The appellate court affirmed, concluding that the limitations

period of section 13–212 governed, rather than the three-year

limitations period applicable to the Consumer Fraud Act. The court

rejected the plaintiff’s argument that section 13–212 was inapplicable

because he did not allege any deviation from a standard of care, but

only fraud related to the commercial aspects of the defendants’ eyecare business. The court concluded that the defendants’ alleged

decision to perform unnecessary surgery on the plaintiff’s eye did

indeed implicate a standard of care. As such, the plaintiff’s alleged

injury arose out of patient care. His allegations of misconduct were

“inextricable” from the defendants’ diagnosis and treatment of the

plaintiff’s eye. Walsh, 272 Ill. App. 3d at 425.

In Stiffler v. Lutheran Hospital, 965 F.2d 137 (7th Cir. 1992), the

court, construing Illinois law, held that a products liability action

against a hospital for implantation of a defective prosthetic device was

governed by the statute of repose contained in section 13–212. The
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court further held that the plaintiff’s claim arose from patient care,

rejecting the plaintiff’s argument that her injury arose, not from

medical care, but from the hospital’s negligent choice and distribution

of a defective prosthetic device. The court contrasted the plaintiff’s

situation with a hypothetical example in which a hospital’s activities

would not arise from patient care. For instance, the court stated, a

hospital-run gift shop might be strictly liable if nonprescription

medicine it sold to the general public was proved to be harmful to

consumers. In contrast, the defendant hospital in the plaintiff’s case

did not place the plaintiff’s prosthesis in the stream of commerce, it

did not promote its purchase to the general public, and it was in no

better position than the plaintiff to examine the prosthesis and

discover the defect. Stiffler, 965 F.2d at 141.

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. The word “arise” is defined in Black’s Law Dictionary as

“[t]o originate; to stem (from),” or “to result (from).” Black’s Law

Dictionary 115 (8th ed. 2004). “Arise” is also defined elsewhere as “to

originate from a source.” Merriam-Webster’s Collegiate Dictionary 66

(11th ed. 2006).

We have very recently discussed the degree of causation required

by the phrase “arising out of patient care” in section 13–212. In

Brucker v. Mercola, No. 102440 (December 28, 2007), we construed

this phrase “simply as requiring a causal connection between the

patient’s medical care and the injury. While the phrase does not need

to be construed so broadly as to encompass ‘but for’ causation, it

clearly covers any injuries that have their origin in, or are incidental to,

a patient’s medical care and treatment.” Brucker, slip op. at 17. The

broad nature of the phrase “arising out of patient care” is aptly

illustrated in Brucker. There, the plaintiff, who was then pregnant,

went to the defendant doctor in 1995 for an allergy consultation. The

defendant prescribed a nutritional supplement called L-glutamine, one

of many that he sold in his office. He provided this service to his

patients and made only incidental sales to the general public. The Lglutamine prescribed for the plaintiff was ordered in bulk form and the
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defendant’s receptionist, who had no medical training, was responsible

for transferring the bulk supplement into individual bottles. The

receptionist accidentally filled the bottle given to the plaintiff with

selenium, rather than L-glutamine. The plaintiff became very ill when

she ingested the selenium.

The plaintiff and her husband initially filed a medical malpractice

complaint in 1997, but the complaint was voluntarily dismissed and

not refiled until 2002. A year later, the plaintiffs amended their

complaint to add an additional count that alleged their son, Robert,

who was born in January 1996, had been poisoned in utero when his

mother ingested the selenium. The defendant filed a motion to dismiss

the action on the ground that the eight-year repose period in section

13–212(b) of the Code had expired.

One of the plaintiff’s arguments was that the injuries allegedly

caused to Robert did not arise out of patient care. This court

disagreed, noting that the phrase “arising out of patient care” has been

broadly defined and refers to a causal connection. Brucker, slip op. at

15. We concluded that “arising out of patient care” simply requires a

causal connection between the patient’s medical care and the alleged

injury. Brucker, slip op. at 17. Applying the plain meaning of this

phrase to the plaintiff’s case, we held that the alleged injury to the

plaintiff and Robert did indeed arise out of the patient care received

by the plaintiff. The plaintiff consulted the defendant doctor

concerning an allergy problem and, based on that consultation, the

defendant prescribed L-glutamine for the plaintiff. We rejected the

plaintiff’s argument that the injuries arose out of the defendant’s sale

of nutritional supplements, noting that the defendant did not hold

himself out as a retailer of supplements, nor did he maintain a retail

area in his office for the sale of the supplements. In addition, the

plaintiff was not sold the supplement as a member of the general

public, but rather as the defendant’s patient. Accordingly, there was

a causal connection between the patient care provided to the plaintiff

and her alleged injury. Brucker, slip op. at 18.

The question remains whether plaintiff here has alleged an injury

arising out of patient care. In addressing this question, plaintiff focuses

on Loyola’s failure to notify her and argues that this omission did not

involve the provision of medical care. However, the omission itself

cannot be viewed in a vacuum. Plaintiff’s allegations of a duty to
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notify her and Loyola’s alleged violation of that duty flows from the

blood transfusion she received during her 1989 hospitalization. This

case is unlike the situation in Cammon (claim against hospital for

spoliation of evidence was unrelated to any patient care). It is

apparent here that there is a causal connection between plaintiff’s

1989 hospitalization and blood transfusion and her current claim

against Loyola. Accordingly, her claim arises out of patient care.

Our decision is in keeping with the purpose behind the statute of

repose. Were we to endorse plaintiff’s position, we would be opening

the door to potentially open-ended liability for health-care providers

anytime new medical tests were developed that might suggest the need

for a notification program for present and former patients. This

obligation might even include patients with whom a hospital may have

had no contact for many years. Such a result would undermine the

purpose behind the enactment of the medical malpractice statute of

repose. That statute was part of the legislative response to a medical

malpractice insurance crisis; the purpose was to reduce the cost of

medical malpractice insurance and to assure its continued availability

to medical practitioners. Anderson, 79 Ill. 2d at 301. The crisis was

thought to stem from the advent of the “discovery rule” in the late

1960’s, in which a cause of action accrued only when a person learned

of an injury or reasonably should have learned of it. Because the

application of the discovery rule in malpractice actions created a “long

tail” of liability, the ability of malpractice insurance companies to

predict future liabilities was reduced. Anderson, 79 Ill. 2d at 307. It

was in response to this problem that the General Assembly enacted the

statute of repose. Allowing plaintiff’s action to go forward would be

contrary to that purpose. Therefore, we conclude that plaintiff’s claim

arises out of patient care and is thus subject to the four-year statute of

repose contained in section 13–212(a). Since plaintiff brought this

action some 13 years after her claim arose, the trial court properly

dismissed her lawsuit.

III

Plaintiff argues that, even if her claims against Loyola are barred

by the statute of repose contained in section 13–212, Loyola

fraudulently concealed the grounds for her cause of action. In the

alternative, plaintiff also argues that Loyola should be equitably
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estopped from asserting the statute of repose as a defense to her

action.

Section 13–212 explicitly recognizes that fraudulent concealment

tolls the running of the statute of limitations/repose. Section 13–215

of the Code (735 ILCS 5/13–215 (West 2002)) provides that when a

cause of action is fraudulently concealed, the plaintiff may bring an

action within five years of the discovery of the cause of action.

In count I of her third amended complaint, plaintiff alleged a cause

of action for constructive fraud. She alleged that because Loyola

advised her to be tested for HIV, but did not advise her prior to 2000

to be tested for HCV, she was falsely led to believe that, following her

negative test for HIV, the blood she had received in the transfusion

was free of all life-threatening viruses. She alleged that her reliance

was reasonable, given that she was not a medical professional and that

Loyola advised her to be tested for one risk known to the medical

community, but not another risk.

The concealment contemplated by section 13–215 must consist of

affirmative acts or representations calculated to lull or induce a

claimant into delaying filing of his or her claim, or to prevent a

claimant from discovering a claim. Mere silence on the part of the

defendant is insufficient. Smith v. Cook County Hospital, 164 Ill. App.

3d 857, 862 (1987). A plaintiff must plead and prove that the

defendant made misrepresentations or performed acts which were

known to be false, with the intent to deceive the plaintiff, and upon

which the plaintiff detrimentally relied. Foster v. Plaut, 252 Ill. App.

3d 692, 699 (1993).

Plaintiff points to no affirmative acts by Loyola that were

calculated to conceal a cause of action. The mere act of notifying

plaintiff that she should be tested for HIV cannot be transformed into

an affirmative act of concealment of the need for HCV testing.

Recognizing the absence of affirmative acts or misrepresentations on

Loyola’s part, plaintiff argues that the general rule requiring

affirmative acts of concealment does not apply where the parties have

a fiduciary or confidential relationship. In such situations, plaintiff

argues, the mere failure to disclose material information, standing

alone, is sufficient to toll the statute of repose.
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In support of her argument, plaintiff cites Hagney v. Lopeman,

147 Ill. 2d 458 (1992), where this court stated:

“ ‘ “[i]t is the prevailing rule that, as between persons

sustaining a fiduciary or trust or other confidential relationship

toward each other, the person occupying the relation of

fiduciary or of confidence is under a duty to reveal the facts to

the plaintiff (the other party), and that his silence when he

ought to speak, or his failure to disclose what he ought to

disclose, is as much a fraud at law as an actual affirmative

false representation or act; and that mere silence on his part as

to a cause of action, the facts giving rise to which it was his

duty to disclose, amounts to a fraudulent concealment

***.” ’ ” Hagney, 147 Ill. 2d at 463, quoting Chicago Park

District v. Kenroy, Inc., 78 Ill. 2d 555, 562 (1980), quoting L.

Tellier, Annotation, What Constitutes Concealment Which

Will Prevent Running of Statute of Limitations, 173 A.L.R.

576, 588 (1948).

Hagney involved a suit by relatives of a decedent against the

decedent’s former attorney alleging self-dealing by the attorney while

representing the decedent. The attorneyallegedly purchased remainder

interests for himself in farmland at a time when he was simultaneously

representing the decedent in her effort to purchase the same remainder

interests.

Plaintiff also points out that this court has held the relationship

between patient and physician is a fiduciary relationship. In Witherell

v. Weimer, 85 Ill. 2d 146, 159 (1981), we found it beyond doubt that

this relationship is one in which the patient places great trust and

confidence in the physician’s advice and recommendations. Based

upon this relationship, plaintiff argues that it was Loyola’s duty to

provide her with notice of the need to be tested for HCV when Loyola

was apprised of the need for such testing in 1996 and 1997 and that

Loyola’s silence constituted a fraud on plaintiff.

Plaintiff was discharged from Loyola in 1989. Thus, there was no

confidential or fiduciary relationship between plaintiff and Loyola in

1996 and 1997, the time plaintiff alleges Loyola should have notified

her of the need for HCV testing.
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Plaintiff relies on Blaz v. Michael Reese Hospital Foundation, 74

F. Supp. 2d 803 (N.D. Ill. 1999). There, the plaintiff was a patient at

the hospital as a child, where he received radiation treatments. He was

part of a group of patients who were treated with radiation therapy

between 1930 and 1960 for some benign conditions of the head and

neck. In 1974, the hospital established a program to gather data and

conduct research among those who had received the therapy. In 1975,

the program notified the plaintiff that he was at increased risk of

thyroid tumors because of the radiation treatment he had received. In

1979, the hospital and the doctor who had been put in charge of the

program submitted a research proposal to the NIH stating that a study

based on the program showed strong evidence of a connection

between radiation treatments and various kinds of tumors, including

neural tumors. A 1981 questionnaire sent to the plaintiff by the

program along with a letter from the doctor said nothing about a

strong connection between the treatments the plaintiff had received

and tumors. The plaintiff developed neural tumors in 1996 and he

sued the hospital and the doctor, alleging that they failed to notify him

of their findings and warn him that he might be at greater risk for

neural tumors. Blaz, 74 F. Supp. 2d at 804.

The district court denied the doctor’s motion to dismiss, finding

that the doctor had a duty to warn the plaintiff by virtue of his role as

the doctor in charge of the program. The court noted that the doctor

was responsible for researching the effects of the radiation treatments

and for communicating with the former patients who had received

those treatments. The district court found that the doctor’s position

with respect to the program created the kind of “special relationship”

that this court had previously required for a finding of duty in the

absence of a doctor-patient relationship. Blaz, 74 F. Supp. 2d at 806-

07.

Blaz does not support plaintiff’s fraudulent concealment argument.

The question in Blaz was whether the doctor had a duty to warn the

plaintiff. No issue of fraudulent concealment was raised.

Loyola notified plaintiff of the need to be tested for HCV once it

had notice that plaintiff was at risk for HCV due to her blood donor’s

positive HCV test. We reject plaintiff’s argument that Loyola’s silence

in 1996 or 1997, without more, constitutes a fraudulent concealment

of a cause of action.
-16-

Plaintiff also argues that Loyola should be equitably estopped from

relying on the statute of repose because Loyola’s notification to

plaintiff in 1990 that she should be tested for HIV lulled her into a

false sense of security that she was not at risk for any other diseases

stemming from her 1989 blood transfusion. This court has set forth

the requirements for equitable estoppel as follows:

“A party claiming estoppel must demonstrate that: (1) the

other person misrepresented or concealed material facts; (2)

the other person knew at the time he or she made the

representations that they were untrue; (3) the party claiming

estoppel did not know that the representations were untrue

when they were made and when that party decided to act, or

not, upon the representations; (4) the other person intended or

reasonably expected that the party claiming estoppel would

determine whether to act, or not, based upon the

representations; (5) the party claiming estoppel reasonably

relied upon the representations in good faith to his or her

detriment; and (6) the party claiming estoppel would be

prejudiced by his or her reliance on the representations if the

other person is permitted to deny the truth thereof.” DeLuna

v. Burciaga, 223 Ill. 2d 49, 82-83 (2006).

It is not necessary that the defendant intentionally mislead or deceive

the plaintiff. All that is required is that the plaintiff reasonably relied

on the defendant’s conduct or representations in delaying suit.

DeLuna, 223 Ill. 2d at 83.

In the instant case, plaintiff relies on Loyola’s notification to her

of the need to be tested for HIV and Loyola’s silence with regard to

the need for HCV testing in 1996 and 1997 as somehow misleading

plaintiff into believing that the blood she received in the transfusion

was free from other diseases. Plaintiff again cites Witherell in support

of her argument. However, in that case, the defendant doctors had

repeatedly assured the plaintiff that she did not have the condition

from which she suffered and that it was not caused by the birth control

pills she was taking.

Loyola’s conduct does not meet the requirements of equitable

estoppel. That plaintiff was notified to be tested for HIV does not

suggest that she was entitled to assume the donated blood was safe

from all other risks. Plaintiff points out that it was reasonable for her
-17-

to conclude that if there was a need for further testing, Loyola would

notify her of that fact. However, Loyola did notify plaintiff to be

tested for HCV when it learned that she was at risk for that virus. We

therefore reject plaintiff’s fraudulent concealment and equitable

estoppel arguments.

CONCLUSION

We hold that plaintiff’s claim arises from patient care and that the

statute of repose contained in section 13–212(a) of the Code applies

to bar her action. We also reject plaintiff’s allegations of fraudulent

concealment and equitable estoppel. Accordingly, we affirm the

judgment of the appellate court.

Appellate court judgment affirmed.

CHIEF JUSTICE THOMAS took no part in the consideration or

decision of this case.

JUSTICE KILBRIDE, specially concurring:

The majority relies on this court’s decision in Brucker v. Mercola,

No. 102440 (December 28, 2007), in concluding that the plaintiff’s

claim arises out of patient care. In Brucker, I agreed with the

majority’s interpretation of the phrase “arising out of patient care.”

Given the facts of Brucker, however, I disagreed with the application

of that phrase because the majority placed insufficient emphasis on the

fundamental “patient care” component. Brucker, slip op. at 40

(Kilbride, J., specially concurring).

In this case, I agree that the plaintiff’s claim arises out of patient

care. The blood transfusion was undoubtedly an integral component

of plaintiff’s medical care or treatment and, therefore, is within the

plain meaning of “patient care.” See Stiffler, 965 F.2d at 141;

Brucker, slip op. at 41 (Kilbride, J., specially concurring). Plaintiff’s

claim alleging harm from the failure to warn of a possible infection

originated from the blood transfusion. Accordingly, plaintiff’s claim

arose out of patient care and falls within the scope of the medical
-18-

malpractice statute of repose. Thus, I concur in the result reached by

the majority despite its reliance on Brucker.

JUSTICE BURKE, dissenting:

In the case at bar, we are confronted with the same question we

addressed in Brucker v. Mercola, No. 102440 (December 28, 2007),

that is, whether a claim “arises out of patient care” within the meaning

of the medical malpractice statute of repose. Here, as in Brucker, the

majority holds that a claim “arises out of patient care” if there is a

“causal connection” between the claim and the medical care received

by the plaintiff. Slip op. at 12 ( “there is a causal connection between

plaintiff’s 1989 hospitalization and blood transfusion and her current

claim against Loyola. Accordingly, her claim arises out of patient

care”).

I disagreed with the majority’s interpretation of the statutory

language in Brucker, explaining that despite the majority’s assertions

to the contrary, its interpretation results in a “but for” test, which is

overly broad and could not have been intended by the legislature.

Brucker, slip op. at 49 (Burke, J., specially concurring). For the same

reasons, I respectfully dissent in the case at bar.

The alleged facts of this case are not in dispute. In the spring of

1989, plaintiff, Diane Orlak, was a patient at a Loyola University

Medical Center (the Foster G. McGaw Hospital) and, while

hospitalized, received blood transfusions. In August of 2000, Loyola

sent plaintiff a letter informing her that the blood she had received in

1989 might have been tainted with the hepatitis C virus (HCV) and

recommended that plaintiff be tested for HCV by her physician. Soon

after receiving this notification, plaintiff was tested and learned that

she was positive for HCV.

In July 2002, plaintiff filed suit against Loyola, seeking recovery

due to Loyola’s alleged negligence in: (1) failing to screen the blood

administered to her for HCV, (2) failing to notify her in a timely

fashion of the need to be tested for HCV, and (3) failing to timely

inform her that the donor whose blood she had received tested

positive for HCV. Subsequently, plaintiff amended her complaint. In

her third amended complaint, which is currently before us, plaintiff

added new allegations, namely, that the Federal Drug Administration
-19-

(FDA) issued a general memorandum in 1996 to all hospitals,

including Loyola, recommending that they notify patients who had

received blood transfusions prior to 1992 to consider getting tested

for HCV; and that the National Institute of Health (NIH) had

published a “Consensus Development Conference Statement” in

March 1997, which recommended that persons who received blood

transfusions prior to 1990 be tested for HCV. Plaintiff recast her prior

claims under the headings of medical negligence and medical battery,

and added two new counts: count I, which alleged constructive fraud,

and count IV, which alleged ordinary negligence. In count I, plaintiff

contended that because Loyola notified plaintiff in 1990 to be tested

for HIV and subsequent testing showed that she was negative for

HIV, and because Loyola did not notify her of the need to be tested

for HCV until 2000, she was lulled into a false sense of security that

the blood she had received in 1989 was safe. Plaintiff further alleged

that, as a result of Loyola’s failure to notify her of the need to be

tested for HCV until 2000, her diagnosis and treatment for HCV were

unnecessarily delayed. In count IV, plaintiff alleged that, based on the

FDA memorandum and the NIH statement, Loyola knew or should

have known, in 1996, or at the latest, 1997, of the necessity of

providing notice to her of the need to be tested for HCV and, by

delaying notice until 2000, “breached its duty to act with reasonable

care,” thereby causing her substantial injury.

Loyola moved to dismiss plaintiff’s third amended complaint,

arguing that all counts were barred by the medical malpractice statute

of repose. The circuit court granted Loyola’s motion. Plaintiff

appealed, arguing that her constructive fraud and ordinary negligence

claims should not have been dismissed because the gravamen of these

claims was Loyola’s failure to provide plaintiff with timely notice, i.e.,

a breach of an administrative duty, not subject to the medical

malpractice statute of repose The appellate court rejected the

plaintiff’s argument and affirmed the court below.

Now, in this court, the majority affirms the lower courts’ rulings.

The majority acknowledges the plaintiff’s contention that “the

question in this case is whether the injury [plaintiff] has alleged arose

from patient care or from an administrative decision by Loyola not to

send notice of the need to be tested for HCV.” Slip op. at 5.
-20-

Nevertheless, the majority never considers whether Loyola’s decision

was an administrative decision, but simply holds:

“Plaintiff’s allegations of a duty to notify her and Loyola’s

alleged violation of that duty flows from the blood transfusion

she received during her 1989 hospitalization. *** It is

apparent here that there is a causal connection between

plaintiff’s 1989 hospitalization and blood transfusion and her

current claim against Loyola.” Slip op. at 10-11.

Clearly, what the majority is saying is that, absent the blood

transfusion, plaintiff would have no claim for an alleged duty to notify.

Thus here, as in Brucker, the majority employs a but-for test for

determining whether the statute of repose applies. It is evident from

the quoted material above that the majority recognizes that plaintiff

has alleged the breach of an administrative duty, i.e., that Loyola

breached a duty to give plaintiff timely notice of the need to be tested

for HVC. Nevertheless, the majority never addresses the nature of

plaintiff’s claim, finding only that plaintiff’s claim is subject to the

statute of repose because the alleged breach of this administrative duty

would not exist but for the fact that plaintiff received a blood

transfusion at Loyola in 1989. I disagree with this analysis. As I

explained in Brucker, the focus should be on the nature of the alleged

wrong, not whether it was “causally related” to patient care. See

Brucker, slip op. at 49 (Burke, J., specially concurring). Moreover, I

find the majority’s attempts to distinguish the case at bar from

Cammon v. West Suburban Hospital Medical Center, 301 Ill. App. 3d

939 (1998), and Canas v. Al-Jabi, 282 Ga. App. 764, 639 S.E.2d 494

(2006), to be unpersuasive.

 There is no analytical difference between the case at bar and the

spoliation-of-evidence claim in Cammon. In Cammon, plaintiff initially

sought recovery for “negligence in [Dr. Tomera’s] performance of the

surgeries on July 2 and 10, 1992; his misdiagnosis of the interabdominal hematoma; his failure to order timely CT scans; and his

failure to achieve adequate homeostasis following the exploratory

laparotomy.” Subsequently, however, plaintiffsought recovery against

the hospital, alleging that “West Suburban breached its duty to

preserve the operative report for the exploratory laparotomy

performed on July 10, 1992, thereby prejudicing her claims against

Tomera and West Suburban.” The appellate court held that the
-21-

spoliation-of-evidence claim was not subject to the medical

malpractice statute of limitations and repose, stating:

“The breach of duty necessary to support a medical

negligence action is the defendant’s deviation from the proper

medical standard of patient care. Borowski v. Von Solbrig, 60

Ill. 2d 418, 423, 328 N.E.2d 301 (1975). The damages

suffered in such an action arise out of inappropriate patient

care. By contrast, a negligence action for spoliation of

evidence is predicated upon a breach of duty to preserve

evidence. Boyd v. Travelers Insurance Co., 166 Ill. 2d 188,

195, 652 N.E.2d 267 (1995). Although the plaintiff in an

action alleging the negligent destruction of evidence resulting

in an inability to prove a cause of action for medical

negligence must prove the merits of the underlying medical

negligence claim (see Boyd, 166 Ill. 2d at 197-98), the fact

remains that the damages suffered by the plaintiff in such a

case arise from the defendant’s destruction of evidence, not

the breach of a medical standard of patient care.” 301 Ill. App.

3d at 950.

The Cammon court recognized that a claim “arises out of patient

care,” and, thus, falls within the medical malpractice statute of repose,

if the claim is one seeking recovery for medical negligence and the

alleged breach of duty is a breach of the medical standard of care. This

is the same position I took in my special concurrence in Brucker.

Brucker, slip op. at 52 (Burke, J., specially concurring). Nevertheless,

the majority does not overturn the determination in Cammon but,

rather, finds it to be distinguishable, stating, “Cammon stands only for

the unremarkable proposition that not all negligence actions against

physicians or hospitals involve patient care.” Slip op. at 6.

The majority’s attempt to distinguish Cammon from the case at

bar cannot withstand scrutiny. The majority holds that, in Cammon,

the duty to preserve evidence “had nothing whatever to do with

patient care.” Slip op. at 6. But that is not true. If we were to apply

the majority’s “causal connection” test, the Cammon plaintiff’s

spoliation-of-evidence claim was clearly related to her medical

treatment because, absent the fact that the plaintiff in Cammon had

received medical care at the defendant hospital, she would not have a

claim for spoliation of evidence. Moreover, as noted in Cammon, the
-22-

plaintiff would have had to prove the merits of the underlying medical

negligence claim to recover.

If, as the majority holds, not all negligence actions directed to a

medical professional involve patient care and, as a result, are not

subject to the medical malpractice statute of repose, how is it that we

may determine what negligence actions do not involve patient care?

Is it not fair to say that “ordinary negligence” claims are claims which

are not predicated on a breach of the medical standard of care and,

thus, are not subject to the statute of repose? But if that is true, why

is it that the majority never even addresses the nature of plaintiff’s

claim, which, as alleged by the plaintiff, is an ordinary negligence

claim?

The better approach, in my view, was employed by the Georgia

appellate court in Canas. In Canas, the plaintiff received blood

transfusions in 1985 and, because there were no tests to detect HIV

at that time, the blood he received was not tested for HIV. Soon after,

tests were developed for the detection of HIV in donor blood and, in

1988, a Presidential Commission on the Human Immunodeficiency

Virus Epidemic issued a recommendation that all persons who

received transfusions between 1977 and 1988 should be notified “as

soon as practicable” of the need for HIV testing. The defendant

hospital

 “did not implement a universal patient notification or ‘recall’

program as recommended by the Presidential Commission;

instead, it implemented a donor look-back program. In that

program, if the hospital discovered that a past blood donor

was HIV positive, then the hospital would identify all patients

who had received that donor’s blood or blood products and

notify those patients of their possible exposure to HIV.”

Because plaintiff’s donor never returned to donate blood, plaintiff was

never notified of the need to be tested. He learned he was HIV

positive several years later when he sought treatment for other

illnesses.

In Canas, the plaintiff presented evidence that the decision to

implement the donor look-back program was an administrative one,

“based on concerns about the expense, logistical complexity, and legal

implications.” The Georgia court of appeals agreed and held that the
-23-

plaintiff’s claim seeking recovery for the defendant’s failure to give

him timely notice of the need to be tested for HIV was an ordinary

negligence claim because the challenged conduct was not medical

diagnosis or treatment but, rather, an administrative decision,

unrelated to the delivery of medical care.

In the case at bar, plaintiff has alleged that Loyola employed a

donor “look-back” program, similar to the one employed in Canas,

for deciding when to notify past blood transfusion patients of the need

to be tested for HCV. Plaintiff has also alleged that the decision to

employ the donor look-back program was an administrative decision

and, therefore, as in Canas, her claim was one for ordinary negligence.

The majority does not explicitly reject the plaintiff’s argument that her

claim is one for ordinary negligence but, rather, distinguishes Canas

on the grounds that the Georgia statute of repose applies to actions

for “medical malpractice,” whereas Illinois’ statute of repose applies

to all actions “arising out of patient care.” However, as I explained in

Brucker, this is a distinction without a difference. See Brucker, slip

op. at 52-53 (Burke, J., specially concurring).

The majority does explicitly reject plaintiff’s argument that “the

fact that the requirements of section 2–622 of the Code (735 ILCS

5/2–622 (West 2002)) do not apply to her case provides further

support for her contention that her claims against Loyola do not arise

out of patient care.” Slip op. at 8. The majority holds that section

2–622 cases are irrelevant because they “focus[ ] only on actions

involving some form of medical malpractice” and “the statute of

repose at issue here encompasses a much broader range of claims.”

Slip op. at 8. Thus, the majority concludes that “the inapplicability of

section 2–622 to this case does not impact the issue of whether

plaintiff’s cause of action arises from patient care.” Slip op. at 8.

In other words, the majority recognizes plaintiff’s claim is one

alleging ordinary negligence, but holds that this fact is of no

significance. I believe this to be error. In my view, cases that draw a

distinction between medical negligence claims and ordinary negligence

claims are relevant because medical negligence claims are subject to

the statute of repose and ordinary negligence claims are not.

Moreover, the majority’s failure to recognize this leads to illogical

results.
-24-

This court’s recent decision in Heastie v. Roberts, 226 Ill. 2d 515

(2007), provides an illustration of this point. In Heastie, the plaintiff

was an emergency-room patient who had been restrained and moved

to a secluded area because he had no apparent injury, but was drunk,

disruptive and deemed a danger to himself and others. While plaintiff

was restrained, a fire broke out in the area where plaintiff was being

held. The origin of the fire could not be determined. However, there

was some evidence that the ignition source might have been a lighter

belonging to the plaintiff. Plaintiff brought a negligence action against

the hospital, as well as certain security guards, technicians, and nurses,

alleging, among other things, that defendants had been negligent

because they failed to restrain him properly, failed to search him for

contraband before restraining him, and failed to monitor him.

On appeal, the issue in Heastie was whether expert medical

testimony was necessary to establish the standard of care with regard

to plaintiff’s claim of negligence based on the hospital personnel’s

failure to search plaintiff for contraband prior to restraining him and

placing him in seclusion. Finding that “[w]hether a hospital patient

should be restrained involves the exercise of medical judgment” but

“[w]hether the patient should be searched for potentially dangerous

contraband before being restrained and sequestered does not”

(Heastie, 226 Ill. 2d at 553), we held that “plaintiff’s failure-to-search

claim *** falls within the category of ordinary negligence” and, for

that reason, expert testimony was not required. We noted, further:

“Prerestraint contraband searches are wholly unrelated to the

diagnosis or treatment of a patient’s condition. They serve no

medical function of any kind. Their purpose is purely safety

related, specifically, to insure that a patient who is going to be

restrained and then left alone will not have access to

implements which may be used to effect an escape, inflict

harm on himself or others, or destroy property. Such a

purpose bears on a hospital’s administrative and management

functions, not its delivery of medical care.” Heastie, 226 Ill.

2d at 553.

According to Heastie, then, the decision to restrain plaintiff was

a medical judgment subject to a medical standard of care, but the

decision not to search plaintiff before restraining him was an

administrative decision and, therefore, plaintiff’s claim based on that
-25-

conduct was one for ordinary negligence. This court was able to make

the analytical distinction between ordinary negligence and medical

negligence in Heastie. There is no reason we should not apply the

same analysis in the case at bar.

In the present case, plaintiff has alleged that Loyola decided to

notify transfusion recipients according to a donor look-back program,

even though it had been recommended by the FDA and NIH in 1996

and 1997 that persons who had received transfusions prior to 1992 be

notified of the need to be tested for HCV. Plaintiff further alleges that

this decision was an administrative one and that the notice which she

was allegedly entitled to receive was neither diagnosis, nor treatment,

but was related to her safety and the safety of those around her.

Accordingly, plaintiff contends that she has alleged a claim for

ordinary negligence which is not subject to the medical malpractice

statute of repose. In light of these allegations, I find it wholly

insufficient for this court to rule to the contrary based only on the fact

that “there is a causal connection between plaintiff’s 1989

hospitalization and blood transfusion and her current claim.” Slip op.

at 12.

In addition, Heastie graphically illustrates a logical anomaly

created by the majority’s interpretation of the “arising out of patient

care” language in the statute. Heastie holds that the decision not to

search a patient for contraband prior to restraining him is an

administrative decision “wholly unrelated to the diagnosis or treatment

of a patient’s condition” and, consequently, expert testimony to

establish a medical standard of care is not required. However, had the

issue been the applicability of the medical malpractice statute of

limitations and repose, there is no question that, using the majority’s

test, this same negligence claim would be subject to the statute

because it is “causally related” to plaintiff’s emergency-room care and

the “medical decision” to restrain the patient. Absent the fact that the

defendants decided to restrain plaintiff (which Heastie held was

patient care), there would have been no need to search defendant for

contraband. Thus, according to Heastie, the failure to search a patient

is a breach of an administrative decision and, as such, ordinary

negligence, yet this same ordinary negligence claim would be subject

to the medical malpractice statute of repose because it is related to

patient care. There is no logical reason for such disparate treatment.
-26-

Heastie and Cammon highlight the flaws in the majority’s analysis.

As I explained in Brucker, the “causal connection” test for deciding

whether the statute of repose applies is a “but-for” test, which is far

too broad. Moreover, the fact that the majority believes these cases to

be distinguishable demonstrates that the majority’s “causal

connection” test provides no principled or reasoned means for

deciding when the statute of repose applies and when it does not. See

Brucker, slip op. at 50 (Burke, J., specially concurring).

Finally, as noted above, the majority never looks at the nature of

the wrongful conduct, as alleged in plaintiff’s complaint, and never

resolves the question of whether plaintiff is seeking recovery for the

breach of an administrative duty or the breach of a medical standard

of care. In short, the majority never directly addresses plaintiff’s

assertion that she has alleged an ordinary negligence claim. The

necessary implication, therefore, is that it does not matter whether a

plaintiff’s claim is one for ordinary negligence. It will be subject to the

medical malpractice statute of repose simply because the claim

occurred in the context of medical care. The majority’s position

sweeps too broadly and is an unwarranted expansion of the medical

malpractice statute of repose.

In my view, the proper test for determining whether a claim “arises

out of patient care” should be whether the wrongful conduct which is

the basis for the claim is medical malpractice. See Brucker, slip op. at

51 (Burke, J., specially concurring). In such instances, the alleged

breach of duty will be a breach of the medical standard of patient care.

See Cammon, 301 Ill. App. 3d at 950.

In the case at bar, the wrongful conduct alleged in plaintiff’s

constructive fraud and ordinary negligence claims is Loyola’s failure

to give her timely notice of the need to be tested for HCV. The

damages plaintiff sought to recover were a result of that conduct, not

because she received tainted blood in the first instance. The alleged

delay in providing notice has nothing to do with the provision of

medical care to plaintiff. As pled, the alleged duty to provide notice of

updated information to blood transfusion recipients, if such a duty

exists, is an administrative one, separate and independent from the

“patient care” plaintiff received in 1989.

It is my view that plaintiff’s ordinary negligence and constructive

fraud claims do not “arise out of patient care” and are not subject to
-27-

the medical malpractice statute of repose. Accordingly, these claims

should not have been dismissed on that basis. I would reverse the

lower courts’ dismissal of plaintiff’s constructive fraud and ordinary

negligence claims and remand for further proceedings.

I note that Loyola denies that a duty to provide information to

former blood transfusion recipients exists. However, because of the

nature of my dissent, I do not reach the issue of whether plaintiff’s

complaint sufficiently alleges that Loyola owed plaintiff a duty to

notify her of the need to be tested for HCV prior to 2000. Thus, I

express no opinion on whether plaintiff sufficiently states causes of

action for constructive fraud and ordinary negligence such that these

claims would necessarily survive a motion to dismiss brought under

section 2–615 of the Code of Civil Procedure.