                           ILLINOIS OFFICIAL REPORTS
                                        Appellate Court




           Radwill v. Manor Care of Westmont, IL, LLC, 2013 IL App (2d) 120957




Appellate Court            VIOLET RADWILL, as Administrator of the Estate of Richard Radwill,
Caption                    Plaintiff-Appellant, v. MANOR CARE OF WESTMONT, IL, LLC,
                           Defendant-Appellee.



District & No.             Second District
                           Docket No. 2-12-0957


Filed                      March 22, 2013


Held                       The appellate court’s decision affirming the dismissal of the counts of
(Note: This syllabus       plaintiff’s complaint alleging that defendant nursing home was guilty of
constitutes no part of     medical malpractice on the ground that the complaint was barred by the
the opinion of the court   two-year limitations period in section 13-212(a) of the Code of Civil
but has been prepared      Procedure was the law of the case for purposes of plaintiff’s third count
by the Reporter of         alleging that defendant breached the parties’ agreement by failing to
Decisions for the          provide proper medical treatment, and the dismissal of that count as
convenience of the         untimely was upheld.
reader.)


Decision Under             Appeal from the Circuit Court of Du Page County, No. 11-L-185; the
Review                     Hon. Kenneth L. Popejoy, Judge, presiding.



Judgment                   Affirmed.
Counsel on                  Thomas M. Paris, of Chicago, for appellants.
Appeal
                            Matthew R. Heimlich, of McVey & Parsky, LLC, of Chicago, for
                            appellee.


Panel                       JUSTICE SCHOSTOK delivered the judgment of the court, with opinion.
                            Justices Zenoff and Hudson concurred in the judgment and opinion.




                                              OPINION

¶1           The plaintiff, Violet Radwill, as the administrator of the estate of her husband, Richard
        Radwill, filed a three-count complaint against the defendant, Manor Care of Westmont, IL,
        LLC, after Richard died while under the care of the defendant, which operates a nursing
        home. The first two counts of the complaint were dismissed, the plaintiff appealed that
        dismissal, and this court affirmed in an unpublished order. See Radwill v. Manor Care of
        Westmont, IL, LLC, 2012 IL App (2d) 110752-U (Radwill I). In that decision, we held that,
        even though a nursing home is not listed as a health care provider subject to the two-year
        limitations period in section 13-212(a) of the Code of Civil Procedure (Code) (735 ILCS
        5/13-212(a) (West 2010)), that section covered the defendant and barred the plaintiff’s claim.
        See Radwill I, 2012 IL App (2d) 110752-U, ¶¶ 11, 13. When the cause proceeded on count
        III of the plaintiff’s complaint, which count was titled “Breach of Contract,” the defendant
        moved to dismiss (735 ILCS 5/2-619(a)(5) (West 2010)), claiming that, like the first two
        counts of the plaintiff’s complaint, the third count should be dismissed because it was
        brought after the statute of limitations had run. The trial court granted the motion, and this
        timely appeal followed. At issue in this appeal is whether this court’s decision in Radwill I,
        wherein we determined that section 13-212(a) of the Code applied to the defendant, serves
        as the law of the case in this appeal. We find that it does, and, thus, we affirm the dismissal
        of count III of the plaintiff’s complaint.
¶2           The parties are familiar with the relevant facts, which are set forth in detail in Radwill I
        and need not be repeated at length here. The plaintiff filed this action on February 18, 2011.
        Briefly summarized, the plaintiff alleged in her complaint that, on December 29, 2006,
        Richard was transferred from Advocate Good Samaritan Hospital (Good Samaritan) to the
        defendant’s care. The defendant, which was duly licensed under the Nursing Home Care
        Reform Act of 1979 (Ill. Rev. Stat. 1985, ch. 111½, ¶ 4151-101 et seq. (now the Nursing
        Home Care Act (210 ILCS 45/1-101 et seq. (West 2010)))), operates “a certain nursing
        home/rehabilitation center which held itself out as possessing the skill necessary to care for
        patients with various states of illness, including respiratory disorders.” When Richard was
        transferred to the defendant’s care, the defendant “agreed to render competent and adequate

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     care [and] services in conjunction with an illness from which [Richard] suffered *** [and]
     which required medical treatment.” Pursuant to this agreement, the defendant, “through its
     employees, undertook to render care, diagnosis[,] treatment and services for financial
     consideration.”
¶3        While Richard remained in the defendant’s care, the defendant, “individually and through
     its agents, servants and employees,” allegedly engaged in various careless and negligent acts
     or omissions. As a result of these acts or omissions, Richard suffered with untreated
     pneumonia. The defendant released Richard from its care on January 26, 2007, and, less than
     24 hours later, Richard was admitted to Good Samaritan, where his condition worsened.
     Because the defendant “fail[ed] to care for Richard *** while he was [in the defendant’s
     care],” Richard died on February 19, 2007. The plaintiff alleged that, “[b]ut for the negligent
     treatment [Richard] received [in the defendant’s care,] Richard *** would have survived.”
¶4        Specific to her breach-of-contract claim, the plaintiff alleged that “[the defendant]
     undertook, for a fee, and pursuant to a written agreement (which the Plaintiff does not have)
     to skillfully care for Richard *** and provide him care, treatment, medical assessment, [and]
     evaluation with a high quality of care.” The plaintiff asserted that, in breach of this
     agreement, the defendant “failed to provide [Richard] with even [basic] care, treatment and
     evaluation, including but not limited to an assessment of the pneumonia which [Richard]
     had, and appropriate referral to a physician and/or facility who could assist in curing his
     condition.”
¶5        This court affirmed the dismissal of counts I and II of the plaintiff’s complaint, based on
     section 13-212(a) of the Code. Radwill I, 2012 IL App (2d) 110752-U, ¶¶ 11, 13. That
     section provides:
          “[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.” 735 ILCS 5/13-212(a) (West 2010).
¶6        After this court affirmed the dismissal of counts I and II of the plaintiff’s complaint, the
     defendant moved to withdraw the answer it had filed concerning the plaintiff’s breach-of-
     contract claim and to dismiss count III on the basis that the two-year limitations period
     delineated in section 13-212(a) of the Code had run. The trial court granted the motion to
     withdraw the answer, and, following a hearing, the court granted the motion to dismiss. The
     court noted that, although count III was labeled “Breach of Contract,” the plaintiff’s
     allegations concerned a medical care issue, not a contract issue, “that’s exactly similar to the
     allegations that were contained in Counts I and II.”
¶7        At issue in this appeal is whether, based on the law-of-the-case doctrine, the dismissal
     of count III of the plaintiff’s complaint was proper. In addressing that issue, we begin by


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       noting that, although the trial court did not use the specific term “law of the case,” the court
       dismissed count III of the plaintiff’s complaint precisely because of that doctrine. We review
       such a finding de novo. Combs v. Schmidt, 2012 IL App (2d) 110517, ¶ 12.
¶8          The law-of-the-case doctrine protects the parties’ settled expectations, ensures uniformity
       of decisions, maintains consistency during the course of a single case, effectuates proper
       administration of justice, and brings litigation to an end. Petre v. Kucich, 356 Ill. App. 3d 57,
       63 (2005). Thus, the doctrine bars relitigation of an issue previously decided in the same
       case. Long v. Elborno, 397 Ill. App. 3d 982, 989 (2010). Issues previously decided include
       issues of both law and fact. Alwin v. Village of Wheeling, 371 Ill. App. 3d 898, 910 (2007).
       “Questions of law that are decided [in] a previous appeal are binding on the trial court on
       remand as well as on the appellate court in subsequent appeals.” Long, 397 Ill. App. 3d at
       989.
¶9          Here, we determined in Radwill I that the two-year limitations period contained in section
       13-212(a) of the Code applied to the first two counts of the plaintiff’s complaint. Radwill I,
       2012 IL App (2d) 110752-U, ¶¶ 11, 13. Thus, because the plaintiff failed to file her
       complaint within two years after her cause of action accrued, we held that the first two counts
       of her complaint were time-barred. Id. In the third count of her complaint (as in the first two
       counts), the plaintiff contended that the defendant failed to medically treat Richard properly
       and thus breached the parties’ agreement. Because this count, like the first two counts,
       alleged that the defendant was guilty of medical malpractice, the law-of-the-case doctrine
       applies. The dismissal of count III therefore was proper: it, like the first two counts, was
       brought after the statute of limitations had run.
¶ 10        That said, we note that the law-of-the-case doctrine is not without exceptions. Indeed,
       two recognized exceptions to the doctrine exist. Those exceptions apply if: (1) a higher
       reviewing court makes a contrary ruling on the same issue subsequent to the lower court’s
       decision, or (2) a reviewing court finds that its prior decision was palpably erroneous. Bjork
       v. Draper, 404 Ill. App. 3d 493, 501 (2010). Neither exception applies here.
¶ 11        With regard to the first exception, the parties have not submitted to this court, and our
       own research has failed to uncover, a decision from a higher court that is contrary to and was
       rendered after our decision in Radwill I.
¶ 12        The plaintiff has attempted to raise the second exception here in a very broad sense,
       contending that our interpretation of the statute in Radwill I was palpably erroneous because
       a nursing home is not a “physician, dentist, registered nurse or hospital duly licensed under
       the laws of this State.” 735 ILCS 5/13-212(a) (West 2010). However, the plaintiff’s argument
       does not demonstrate such palpable error. The palpably-erroneous exception applies only in
       the very rarest of situations. See Norris v. National Union Fire Insurance Co. of Pittsburgh,
       368 Ill. App. 3d 576, 583 (2006). It is invoked only when a court’s prior decision was
       obviously or plainly wrong. See id. Put another way, a court’s decision will be considered
       palpably erroneous only if that decision was clearly erroneous and would work a manifest
       injustice. See People v. Jacobazzi, 398 Ill. App. 3d 890, 931 (2010). The fact that a court
       might reach a different conclusion if it had to consider the issue anew does not mean that the
       court’s prior decision was palpably erroneous. Norris, 368 Ill. App. 3d at 584 (after


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       determining, “with reluctance,” that the law-of-the-case doctrine applied, court noted that
       “[h]ad the judges on this panel decided the issue in the first instance, the result well might
       have been different”).
¶ 13       With those principles in mind, we turn to the circumstances of this case. Although Solich
       v. George & Anna Portes Cancer Prevention Center of Chicago, Inc., 158 Ill. 2d 76, 82-84
       (1994), which we mentioned in Radwill I, repeatedly states that only those health care
       providers listed in section 13-212(a) of the Code are covered by the two-year limitations
       period delineated therein, our supreme court noted in that opinion that section 13-212(a) also
       applies, in certain circumstances, to their employees. Thus, in Brucker v. Mercola, 227 Ill.
       2d 502, 528 (2007), the court found that section 13-212(a) covered an office manager of a
       doctor’s office when that office manager filled a bottle of supplements with the wrong
       substance and then sold that substance to the plaintiff, who was the doctor’s patient. Further,
       based on supreme court cases that have concluded that health-maintenance organizations
       (HMOs) may be held vicariously liable for the acts of their network doctors, the First District
       has found that section 13-212(a) covers HMOs, which, like nursing homes, are not listed in
       section 13-212(a). See Thornton v. Shah, 333 Ill. App. 3d 1011, 1019 (2002) (“Where an
       HMO can be held liable for medical malpractice under various theories of accountability, a
       plaintiff must file his or her cause of action within the time constraints set forth in section
       13-212.”). In our view, it is at least arguable that, if an HMO falls within section 13-212(a),
       the defendant’s nursing home, which provided medical care to Richard, is also covered by
       that section. Because that position is arguable, we cannot conclude that our decision in
       Radwill I was palpably erroneous.
¶ 14       For these reasons, we hold that the law-of-the-case doctrine applies here and that no
       exception to that doctrine can be invoked. Accordingly, the dismissal of count III of the
       plaintiff’s complaint pursuant to section 13-212(a) of the Code was proper. We affirm the
       judgment of the circuit court of Du Page County.

¶ 15      Affirmed.




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