                                              SECOND DIVISION
                                              FILED: March 2, 2010




No. 1-08-3278


HELEN ULDRYCH, Individually and               )   APPEAL FROM THE
as Special Administrator of the               )   CIRCUIT COURT OF
Estate of RUDOLPH ULDRYCH, Deceased,          )   COOK COUNTY.
                                              )
      Plaintiff,                              )
                                              )
v.                                            )
                                              )
VHS OF ILLINOIS, INC., d/b/a                  )
MACNEAL HOSPITAL,                             )
                                              )
      Defendant and Counterplaintiff-         )   No. 05 L 1597
      Appellant,                              )
                                              )
and                                           )
                                              )
CHRISTOPHER D. JOYCE, M.D.,                   )
JEFFERY C. ZAWACKI, M.D., and                 )
SUBURBAN SURGICAL ASSOCIATES,                 )
LTD., a corporation,                          )
                                              )   THE HONORABLE
      Defendants and Counterdefendants-       )   SHELDON A. HARRIS,
      Appellees.                              )   JUDGE PRESIDING.



      JUSTICE HOFFMAN delivered the opinion of the court:

      VHS   of   Illinois,   Inc.,   d/b/a   MacNeal   Hospital   (MacNeal

Hospital) appeals from an order of the circuit court dismissing

its amended counterclaim for implied indemnity as time-barred

pursuant to section 13-212(a) of the Code of Civil Procedure

(Code) (735 ILCS 5/13-212(a) (West 2002)).        For the reasons which

follow, we affirm.
No. 1-08-3278

     On    February      10,    2003,    Rudolph        Uldrych       underwent   gastric

bypass surgery at MacNeal Hospital.                   In February of 2005, Rudolph

and his wife, Helen Uldrych, filed a medical malpractice action

alleging that Rudolph suffered severe and permanent injuries as a

result of the creation of a misconstructed bowel segment during

the February 10, 2003, surgery.                 Among the defendants sued by the

Uldrychs were the physicians                  who performed the surgery, Drs.

Christopher      Joyce    and     Jeffrey           Zawacki,    and    the   physicians'
alleged employers, Suburban Surgical Associates, Ltd. (Suburban

Surgical) and MacNeal Hospital.

     Following the initiation of this lawsuit, Rudolph died and

Helen was appointed special administrator of his estate.                               On

August 26, 2005, Helen Uldrych filed a four-count, second-amended

complaint, setting forth claims for survival and wrongful death.

Counts I and III alleged that Dr. Joyce and Dr. Zawacki were

negligent       in    creating         and/or         failing     to     diagnose    the

misconstructed bowel segment.                 These counts further alleged that
Suburban    Surgical      was    one     of    the     physicians'       employers   and,

therefore, vicariously liable.                  Counts II and IV, on the other

hand, alleged that Drs. Joyce and Zawacki were MacNeal Hospital's

actual     or   apparent        agents        and     that     MacNeal    Hospital   was

vicariously      liable    for     the        physicians'        negligent    acts   and

omissions.

     On August 27, 2008, MacNeal Hospital filed a counterclaim

against Dr. Joyce, Dr. Zawacki, and Suburban Surgical.                            In its




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counterclaim, MacNeal Hospital alleged that it had agreed to pay

$1,000,000 to settle the underlying malpractice action and sought

indemnification.

     On September 19, 2008, the circuit court entered an order

that dismissed the underlying medical malpractice action pursuant

to a settlement, but specifically stated that MacNeal Hospital's

counterclaim    remained      pending.         On    that      same     day,    MacNeal

Hospital filed an amended counterclaim, alleging that Drs. Joyce
and Zawacki     were   the    actual    employees         or   agents    of     Suburban

Surgical at the time the gastric bypass surgery was performed.

Nevertheless, the amended counterclaim further alleged that Dr.

Joyce, Dr. Zawacki, and Suburban Surgical owed MacNeal Hospital

an implied quasi-contractual obligation for indemnification based

on the assertions contained in the second-amended complaint that

Drs. Joyce and Zawacki were the actual or apparent agents of

MacNeal    Hospital.         The     amended       counterclaim         again    sought

indemnification    for    the      $1,000,000      that    MacNeal      Hospital    had
agreed to pay to settle the underlying action.

     Thereafter, Dr. Joyce, Dr. Zawacki, and Suburban Surgical

filed motions to dismiss MacNeal Hospital's amended counterclaim

pursuant   to   section      2-619(a)(5)     of     the    Code   (735     ILCS     5/2-

619(a)(5) (West 2002)).         These motions alleged, inter alia, that

MacNeal    Hospital    did    not    file    its    counterclaim         for     implied

indemnification within the four-year statute of repose contained

in section 13-212(a) of the Code (735 ILCS 5/13-212(a) (West




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2002)), commonly referred to as the medical malpractice statute

of repose.     On November 7, 2008, the circuit court granted the

motions and dismissed MacNeal Hospital's amended counterclaim as

time-barred.       This timely appeal followed.

     In     urging      reversal    of   the     dismissal       of     its    amended

counterclaim,       MacNeal    Hospital        contends      that     the     four-year

medical malpractice statute of repose set forth in section 13-

212(a) of the Code (735 ILCS 5/13-212(a) (West 2002)) does not
bar its counterclaim for implied indemnity.                      MacNeal Hospital

argues that section 13-212 is inapplicable as its counterclaim is

grounded in the quasi-contractual implied duty to indemnify, not

medical malpractice.

     MacNeal       Hospital's      amended      counterclaim          was     dismissed

pursuant to 2-619(a)(5) of the Code, which allows for involuntary

dismissal when "the action was not commenced within the time

limited by law."         735 ILCS 5/2-619(a)(5) (West 2002).                  A section

2-619 motion       to   dismiss    admits      the   legal     sufficiency      of   the
complaint    and     raises   defects,      defenses,     or    other       affirmative

matters that defeat the claim.               Cohen v. McDonald's Corp., 347

Ill. App. 3d 627, 632, 808 N.E.2d 1 (2004).                  Such a motion should

be granted if, after construing the pleadings and                           supporting

documents in a light most favorable to the nonmoving party, the

court finds that no set of facts can be proved upon which relief

can be granted.         Webb v. Damisch, 362 Ill. App. 3d 1032, 1037,

842 N.E.2d 140 (2005).        This court does not give deference to the




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circuit court's ruling on a motion to dismiss pursuant to section

2-619, but, rather, reviews the matter de novo.                 Fuller Family

Holdings, LLC v. Northern Trust Co., 371 Ill. App. 3d 605, 613,

863 N.E.2d 743 (2007).

     As it relates to this case, section 13-212(a) of the Code

provides that:

                  "[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, 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).




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No. 1-08-3278

In determining whether this section of the Code applies, courts

do not focus on the actual labeling of the claims.                   Orlak v.

Loyola University Health System, 228 Ill. 2d 1, 14, 885 N.E.2d

999 (2007).     Rather, the relevant question is whether the claims

arose out of patient care.        Orlak 228 Ill. 2d at 14.           "Arising

out of patient care" simply requires a causal connection between

the patient's medical care and the injury.            Brucker v. Mercola,

227 Ill. 2d 502, 523, 886 N.E.2d 306 (2007).                 This phrase has
been interpreted broadly to include "any injuries that have their

origin in, or are incidental to, a patient's medical care and

treatment."     Brucker, 227 Ill. 2d at 523-24.

     In Hayes v. Mercy Hospital & Medical Center, 136 Ill. 2d

450, 557 N.E.2d 873 (1990), the Illinois Supreme Court held that

third-party actions for contribution are subject to the four-year

statute of repose set forth in section 13-212(a).                 Hayes, 136

Ill. 2d at 460-61.      In reaching this conclusion, the Hayes court

rejected the third-party plaintiffs' argument that an action for
contribution does not seek recovery for the damages sustained by

the original plaintiff, but rather, seeks the enforcement of an

equitable duty to share liability among the parties responsible

for the original plaintiff's injury.        The court reasoned:

                  "We   believe     that     the     plaintiffs'

          interpretation     of    the    medical    malpractice

          statute of repose unduly limits its scope and

          misapprehends      the     purpose        behind     its




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No. 1-08-3278

          enactment.       It is true, as the plaintiffs

          observe, that an action for contribution need

          not    be    predicated    on     the    same    theory     of

          recovery as that asserted by the plaintiff in

          the         underlying       action.          [Citations.]

          Nevertheless, 'the basis for a contributor's

          obligation rests on his liability in tort to

          the injured party' [citation.], even if the
          plaintiff in the direct action did not assert

          the theory of liability on which the third-

          party       action     relies.          The     action      for

          contribution apportions the damages among the

          parties        responsible        for     the         original

          plaintiff's injury, and the contributor is

          obligated for the damages directly created by

          the    contributor's      negligent       actions.          The

          third-party plaintiff, therefore, is seeking
          from the third-party defendant those damages

          proximately caused by the negligent acts of

          the third-party defendant which the third-

          party plaintiff may be obligated to pay in

          the     underlying     suit.       This       leads    us    to

          conclude that an action for contribution is

          an    'action    for   damages'     under       the   medical




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            malpractice statute of repose."                    Hayes, 136

            Ill. 2d at 456-57.

The Hayes court further observed that section 13-212 was enacted

in response to a perceived medical malpractice insurance crisis

and that a definite period in which an action was required to be

filed    would      enable       insurance        companies    to       predict   future

liabilities      and       reduce      health-care        malpractice         insurance

premiums.     Hayes, 136 Ill. 2d at 457-58.                      The supreme court
determined that, "[b]ecause a suit for contribution against an

insured for damages arising out of patient care exposes insurance

companies to the same liability as if the patient were to have

brought a direct action against the insured, we believe that the

term 'or otherwise' in the medical malpractice statute of repose

includes     actions       for    contribution        against       a    physician   for

injuries arising out of patient care."                    Hayes, 136 Ill. 2d at

458.

       In Ashley v. Evangelical Hospitals Corp., 230 Ill. App. 3d
513, 594 N.E.2d 1269 (1992), this court expanded the holding in

Hayes to third-party actions for implied indemnity.                         Ashley, 230

Ill. App. 3d at 522; see also Roberson v. Belleville Anesthesia

Associates, Ltd., 213 Ill. App. 3d 47, 51, 571 N.E.2d 1131 (1991)

(reaching a similar result).                 The Ashley court observed that,

much like the relationship between a third-party plaintiff and a

third-party      defendant        in   an     action     for     contribution,       the

indemnitee     in     an     implied    indemnity        claim      seeks     from   the




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No. 1-08-3278

indemnitor     those     damages      caused       by     the    indemnitor       in    the

underlying suit.        Ashley, 230 Ill. App. 3d at 518.                      This court

also noted that, similar to a suit for contribution, a claim for

indemnification        exposes       an    insurance       company       to     the     same

liability as if the patient had brought a direct action against

the insured.     Ashley, 230 Ill. App. 3d at 521.                    Accordingly, the

Ashley court concluded that the inclusion of third-party actions

for implied indemnity within the ambit of the medical malpractice
period of repose furthers the statute's legislative intent of

enabling insurance companies to better predict future liability

by reducing the extended exposure of physicians and hospitals to

medical malpractice liability.              Ashley, 230 Ill. App. 3d at 521.

     In   its        briefs     before      this        court,    MacNeal        Hospital

acknowledges this court's holding in Ashley that the four-year

medical   malpractice         statute      of    repose    applies    to      claims    for

implied   indemnity.           See    Ashley,      230    Ill.    App.     3d    at    522.

Nevertheless, MacNeal Hospital contends that Ashley is no longer
controlling     in    light    of    the    Illinois      Supreme     Court's         recent

decision in Travelers Casualty & Surety Co. v. Bowman, 229 Ill.

2d 461, 893 N.E.2d 583 (2008) (Travelers).

     In Travelers, an insurer issued several performance bonds to

a   metalworking       company.           After     the    company       breached        its

underlying construction contracts and the payment of claims under

the performance bonds resulted, the insurer filed suit against

the company for indemnification                  based on a written indemnity




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No. 1-08-3278

agreement the company had signed when the bonds were issued.               The

company moved to dismiss the suit, arguing that the insurer's

claims were barred by the four-year statute of limitations in

section 13-214(a) of the Code (735 ILCS 5/13-214(a) (West 2002)),

applicable to construction improvements to real property.                  The

insurer,     however,    asserted    that       the   10-year    statute    of

limitations for written contracts in section 13-206 of the Code

(735 ILCS 5/13-206 (West 2002)) should apply.
     The Illinois Supreme Court ruled in favor of the insurer,

noting that it had long held that the nature of the plaintiff's

injury   rather   than    the    facts   from    which    the   claim   arises

determines what limitations period governs.              Travelers, 229 Ill.

2d at 466, citing Armstrong v. Guigler, 174 Ill. 2d 281, 286-87,

673 N.E.2d 290 (1996).      Applying this analysis, the supreme court

determined that the company's liability did not emanate from a

construction-related activity but from the breach of the written

indemnity agreement, and, therefore, the four-year statute of
limitations in section 13-214(a) was inapplicable.                 Travelers,

229 Ill. 2d at 469-70.          Instead, the Travelers court concluded

that the insurer's suit was governed by the 10-year statute of

limitations for written contracts set forth in section 13-206.

Travelers, 229 Ill. 2d at 478.

     Relying on the holding in Travelers that the nature of the

plaintiff's injury rather than the facts from which the claim

arises     determines    what   limitations      period    applies,     MacNeal




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No. 1-08-3278

Hospital maintains that, in determining whether its counterclaim

for   implied        indemnity       is     barred    by    the    medical       malpractice

statute    of    repose,       we     should       focus    on    the   quasi-contractual

liability       it    was     owed    by     Drs.    Joyce       and    Zawacki,      not    the

physicians'          liability       in    the     underlying      medical       malpractice

action.    See Allison v. Shell Oil Co., 113 Ill. 2d 26, 28-29, 495

N.E.2d 496 (1986) (noting that                      a claim for quasi-contractual

implied indemnity arises from certain pre-tort relationships in
which the indemnitor impliedly promised to indemnify the loss

incurred by the indemnitee).                       Contrary to MacNeal Hospital's

argument, however, we find Travelers to be distinguishable.

      Unlike the statutes of limitations at issue in Travelers,

the medical malpractice statute of repose expressly states that

it applies to actions "arising out of patient care."                             Compare 735

ILCS 5/13-206, 13-214(a) (West 2002) with 735 ILCS 5/13-212(a)

(West 2002).            As    previously         discussed,      this    phrase      has    been

interpreted      broadly to include "any injuries that have their
origin in, or are incidental to, a patient's medical care and

treatment."          Brucker, 227 Ill. 2d at 523-24.                     Accordingly, the

medical malpractice statute of repose employs a much broader and

different test than most statutes of limitations.                           We, therefore,

conclude that the language in Travelers setting forth what courts

should    generally          consider       when    determining         which    limitations

period governs is wholly inapplicable.                            Rather,       to   determine

whether   an     injury       has     its    origin    in    or    is    incidental         to   a




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No. 1-08-3278

patient's medical care and treatment and, thus, falls within the

scope of the medical malpractice statute of repose, courts must

look past the nature of the injury itself and, instead, examine

the facts from which the injury arose.

     Having rejected the arguments raised by MacNeal Hospital, we

continue to adhere to this court's holding in Ashley that actions

for implied indemnity are subject to the four-year period of

repose contained in section 13-212(a) of the Code (735 ILCS 5/13-
212(a)   (West   2002)).   As   a    consequence,   MacNeal   Hospital's

implied indemnity claim, which was filed more than one-and-a-half

years after the expiration of the period of repose, was properly

dismissed by the circuit court.

     For the foregoing reasons, we affirm the judgment of the

circuit court.

     Affirmed.


     CUNNINGHAM, P.J., and THEIS, J., concur.




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