## Facts

- Diane Orlak was hospitalized in May 1989 at Foster G. McGaw Hospital (operated by Loyola University Health System) for work-related burns and received a blood transfusion.
- Orlak was unconscious; her mother signed a transfusion consent form warning there was no definitive test for viral hepatitis and that transfusion could cause viral hepatitis.
- In 1990, Loyola advised Orlak to be tested for HIV; she tested negative.
- In August 2000, Loyola notified Orlak that the blood donor had recently tested positive for hepatitis C (HCV) and recommended Orlak be tested; Orlak tested positive for HCV.
- Orlak alleged she reasonably believed the transfused blood was safe after the 1990 HIV testing and relied on Loyola’s statement that no reliable HCV test existed at the time of the transfusion.
- Orlak further alleged that a 1996 FDA recommendation urged hospitals to notify pre-1992 transfusion recipients to test for HCV and that Loyola failed to notify her earlier.
- Orlak sued in 2002 for medical negligence, medical battery, and constructive fraud based on Loyola’s alleged failure to timely notify her of HCV risk and testing.

## Issues

1. Whether Orlak’s negligence, battery, and constructive fraud claims were “arising out of patient care” and thus barred by the four-year medical malpractice statute of repose in 735 ILCS 5/13-212(a).
2. Whether Loyola’s later communications or alleged omissions (including post-treatment notification failures) constituted separate later occurrences that would avoid the 1989 repose period.
3. Whether the constructive fraud claim was governed by the general five-year fraud limitations period rather than the medical repose provision.

## Decision

- The Illinois Supreme Court affirmed dismissal of the complaint under 735 ILCS 5/2-619(a)(5).
- The court held all counts, including constructive fraud and medical battery, arose out of patient care and fell within 735 ILCS 5/13-212(a).
- The relevant occurrence for repose purposes was the 1989 hospitalization and transfusion; the four-year repose period expired in 1993.
- Later communications and alleged failures to warn did not create new, independent occurrences that restarted the repose period.
- The constructive fraud theory could not avoid § 13-212(a) by invoking the general fraud statute; the specific medical repose provision controlled.

## Legal Principles

- Section 13-212(a) applies broadly to any action, “whether based upon tort, contract or otherwise,” so long as it has its origin in or is closely related to the provision of medical care.
- For repose purposes, the “occurrence” is tied to the underlying episode of patient care giving rise to the duty; later consequences or follow-up communications generally do not restart the repose period when they flow from that episode.
- A statute of repose provides an absolute time bar running from the occurrence, distinct from limitations periods that may depend on discovery.
- When a specific medical repose statute and a more general limitations statute both appear applicable, the specific medical repose provision governs claims arising from patient care, including fraud-based claims.

## Conclusion

The court treated the alleged notification duties and later correspondence as deriving from the 1989 transfusion and held that § 13-212(a)’s four-year medical statute of repose barred Orlak’s negligence, battery, and constructive fraud claims filed more than four years after the patient-care occurrence.


Orlak v. Loyola Univ. Health Sys., 228 Ill. 2d 1, 885 N.E.2d 999 (Ill. 2007)