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care,” holding that because the plaintiff had consulted the defendants
for eyecare, the fraud was “inextricable” from his care and treatment.
In each of these cases, this court refused to narrow its analysis of
the plaintiffs’ claims to include only the particular act or omission
alleged to have caused the injury, instead examining the totality of the
circumstances leading to the injury to determine whether it had its
“origin in” or was “incidental to” the patient’s care and treatment. Yet
in this case, the majority simply concludes that “[t]he sexual assault,
itself, was not medical care.” If this alone is enough to remove an
injury from the statute of repose in section 13–212, Brucker should
be reversed because the labeling and sale of nutritional supplements,
itself, was not medical care. Under the rule as the majority today
applies it, Orlak, Miller, and Walsh are all likewise of questionable
continuing validity.
Finally, I note that even if I agreed with the majority’s conclusion
that the sexual assault of Kaufmann can be divorced from its
circumstances and was not incidental to her treatment, several of
plaintiff’s counts against Jersey Community Hospital should
nonetheless be considered “arising out of patient care.” In her
amended complaint, plaintiff seeks damages not only for the battery,
but for vicarious liability for the unnecessary sedation, unnecessary
medication, unnecessary exam or procedure, and lack of informed
consent for that procedure that she alleges preceded the battery. Even
under the majority’s narrow view of “arising out of patient care,”
these acts, unlike sexual assault, are all “medical care” in and of
themselves. However, the majority dismisses plaintiff’s argument on
these points, opining that “the harm resulted from the sexual assault,”
and the unnecessary medical treatment was “simply a means by which
Schroeder was able to accomplish his sexual assault on Kaufmann.”
Slip op. at 6-7. According to the majority, then, it is the motives of
the physician that determine whether the acts are “arising out of
patient care.” Under such a rule, the same intentional acts alleged by
the same plaintiff under the same circumstances may have different
results depending on the mental state of the actor. The problems with
this approach are manifest. For example, taken together with Walsh,
this conclusion means that if Schroeder had performed the
unnecessary procedure so that he could illegally bill Kaufmann for the
service, as was the allegation in Walsh, then his acts would be
