Kaufmann v. Jersey Community Hospital

SUPREME COURT CASES

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State: Illinois

Court: 4th District Appellate

Docket No: 4-08-0909 Rel

Case Date: 12/08/2009

Preview:NO. 4-08-0909 IN THE APPELLATE COURT OF ILLINOIS FOURTH DISTRICT

Filed 12/8/09

KRISTEN KAUFMANN, ) Appeal from Plaintiff-Appellant, ) Circuit Court of v. ) Jersey County JERSEY COMMUNITY HOSPITAL, a Municipal ) No. 07L37 Corporation, ) Defendant-Appellee, ) and ) Honorable ROGER A. SCHROEDER, M.D., ) Lois A. Bell, Defendant. ) Judge Presiding. _________________________________________________________________ JUSTICE POPE delivered the opinion of the court: In July 2008, the trial court dismissed counts IV through X of plaintiff Kristen Kaufmann's first amended complaint because plaintiff failed to comply with the applicable one-year statute of limitations under section 8-101(a) of the Local Governmental and Governmental Employees Tort Immunity Act (Tort Immunity Act) (745 ILCS 10/8-101(a) (West 2006)). Those seven

counts were directed at defendant Jersey Community Hospital (Jersey Hospital). Plaintiff filed motions to reconsider in In Novem-

August 2008 and November 2008, which the court denied.

ber 2008, the court entered an order pursuant to Illinois Supreme Court Rule 304(a) (210 Ill. 2d R. 304(a)), finding no just reason to delay the appeal of its decision to dismiss those seven counts. Plaintiff appeals, arguing the two-year statute of

limitations under section 8-101(b) of the Tort Immunity Act (745 ILCS 10/8-101(b) (West 2006)) should have applied. We affirm.

I. BACKGROUND In December 2007, plaintiff filed a two-count complaint against Roger A. Schroeder, M.D., and Jersey Hospital. In June

2008, plaintiff filed her first amended complaint in this case. Plaintiff alleged the following. Schroeder had been her In January 2006, plaintiff

obstetrician-gynecologist since 2004.

was hospitalized at Jersey Hospital with a urinary tract infection. While there, Schroeder sedated her during an unnecessary While plaintiff was sedated, While

exam that did not require sedation.

Schroeder committed a "deviant act of sex" upon plaintiff. the information was not contained in the record, plaintiff's counsel stated during oral argument that plaintiff found

Schroeder licking her breast when she awoke from her sedation. Defense counsel did not object to this information being disclosed. Based on information and belief, plaintiff alleged no other physicians, nurses, or other hospital agents or employees were present when this occurred. In addition, based on informa-

tion and belief, plaintiff alleged Schroeder had committed "devious acts of sex" upon former patients and that Jersey Hospital had knowledge of this. Plaintiff alleged the Illinois State Police (ISP), which was investigating Schroeder's alleged criminal activity, requested her not to file a civil suit against Schroeder and Jersey Hospital until certain evidence had been collected. Plaintiff alleged she complied with ISP's request and waited to - 2 -

consult a lawyer or file a civil suit against Schroeder or Jersey Hospital. She filed her civil suit in December 2007. Counts I through III of the amended complaint were directed at Schroeder, alleging, respectively, battery, intentional infliction of emotional distress, and negligence. Counts

IV through X were directed at Jersey Hospital, alleging, respectively, negligent hiring, negligent retention, negligent supervision, negligence (willful and wanton), intentional infliction of emotional distress, negligent infliction of emotional distress, and vicarious liability. physical injuries. Plaintiff did not allege any specific

In the count alleging battery, plaintiff

alleges Schroeder's devious acts of sex were "harmful and offensive contact." However, she does not allege Schroeder's devious She did allege she

act of sex caused any actual physical injury. suffered severe and extreme emotional distress.

In July 2008, the hospital filed a motion to dismiss plaintiff's first amended complaint pursuant to sections 2-615 and 2-619 of the Code of Civil Procedure (Code) (735 ILCS 5/2615, 2-619 (West 2006)). That same month, the trial court disPlaintiff filed two motions to

missed counts IV through X.

reconsider, which were both denied. This appeal followed. II. ANALYSIS On appeal, plaintiff argues the trial court erred in failing to find the applicable statute of limitations was two years pursuant to section 8-101(b) of the Tort Immunity Act (745 - 3 -

ILCS 10/8-101(b) (West 2006)) instead of one year pursuant to section 8-101(a) of the Tort Immunity Act (745 ILCS 10/8-101(a) (West 2006)) because plaintiff's injuries arose out of patient care. In the alternative, plaintiff argues if this court finds

the one-year period to be applicable, the statute of limitations should have been equitably tolled because she was requested by ISP not to file a civil claim until it had finished gathering evidence. A. Statute of Limitations Section 8-101 of the Tort Immunity Act (745 ILCS 10/8101 (West 2006)) states: "(a) No civil action other than an action described in subsection (b) may be commenced in any court against a local entity or any of its employees for any injury unless it is commenced within one year from the date that the injury was received or the cause of action accrued. (b) No action for damages for injury or death against any local public entity or public employee, 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 - 4 -

in writing of the existence of the injury or death for which damages are sought in the action, whichever of those dates occurs first, but in no event shall such an action be brought more than 4 years after the date on which occurred the act or omission or occurrence alleged in the action to have been the cause of the injury or death." added.) Our decision in this case rests on whether the General Assembly meant for injuries arising from a deviant sex act committed by a doctor at a hospital to be injuries "arising out of patient care" pursuant to section 8-101(b) of the Tort Immunity Act (745 ILCS 10/8-101(b) (West 2006)). The legislature's intent Orlak (Emphases

is best determined from the plain language of the statute.

v. Loyola University Health System, 228 Ill. 2d 1, 8, 885 N.E.2d 999, 1004 (2007). When a term is not defined by a statute, it is Orlak, 228 Ill. 2d

to be given its plain and ordinary meaning. at 8, 885 N.E.2d at 1004.

Neither section 8-101 of the Tort

Immunity Act (745 ILCS 10/8-101 (West 2006)) nor section 13-212 of the Code of Civil Procedure (Code) (735 ILCS 5/13-212 (West 2006)), which also contains the same language, defines the phrase "arising out of patient care." 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. - 5 Orlak, 228 Ill. 2d

at 8, 885 N.E.2d at 1004. According to plaintiff, her injuries arose from the patient care she received at Jersey Hospital. The parties did

not cite, and this court did not find, any cases specifically dealing with section 8-101(b) of the Tort Immunity Act (745 ILCS 10/8-101(b) (West 2006)). As a result, this is a case of first

impression with regard to section 8-101(b). Plaintiff argues we should be guided by cases interpreting section 13-212 of the Code (735 ILCS 5/13-212 (West 2006)), which concerns the statute of limitations for claims involving physicians or hospitals and includes language similar to the language of section 8-101(b) of the Tort Immunity Act (745 ILCS 10/8-101(b) (West 2006)). in part: "(a) Except as provided in [s]ection 13215 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 - 6 Section 13-212 of the Code states

death for which damages are sought in the action, whichever of such dates 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. (b) Except as provided in [s]ection 13215 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 8 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 where the person entitled to bring the action was, at the time the cause of action accrued, under the age of 18 years ***." added.) 2006). In 2007, the Supreme Court of Illinois issued two opinions interpreting the "arising out of patient care" language found in section 13-212 of the Code (735 ILCS 5/13-212 (West - 7 (Emphases

735 ILCS 5/13-212(a), (b) (West

2006)).

See Brucker v. Mercola, 227 Ill. 2d 502, 886 N.E.2d 306 We conclude the

(2007); Orlak, 228 Ill. 2d 1, 885 N.E.2d 999.

supreme court would apply the language of section 8-101(b) of the Tort Immunity Act (745 ILCS 10/8-101(b) (West 2006)) in the same manner it applied the language of section 13-212 of the Code (735 ILCS 5/13-212 (West 2006)) in Brucker and Orlak, considering the statutes contain nearly identical language. As a result, we use

the same analysis in this case as the supreme court used in Brucker and Orlak to determine whether section 8-101(a) or (b) of the Tort Immunity Act (745 ILCS 10/8-101(a), (b) (West 2006)) is applicable to plaintiff's claim. In Brucker, Anna Brucker went to Dr. Mercola's office for an allergy consultation. In deposition testimony, Mercola

said he was "closer to a nutritionist than an internist or family practitioner." Brucker, 227 Ill. 2d at 506, 886 N.E.2d at 308.

According to the supreme court's opinion, Dr. Mercola's "practice involved using nutrition and nutritional supplements to correct chronic diseases, and he prescribed traditional medicine only sparingly." Brucker, 227 Ill. 2d at 506, 886 N.E.2d at 308.

Dr. Mercola sold many of the supplements that he prescribed as a service for his patients because insurance usually did not cover the cost of the supplements. N.E.2d at 308. Brucker, 227 Ill. 2d at 506, 886

Mercola sold them to his patients for signifi-

cantly less than they could purchase the supplements at healthfood stores. Brucker, 227 Ill. 2d at 506, 886 N.E.2d at 308-09.

Initially, Mercola's office ordered L-glutamine, a supplement, in - 8 -

prepackaged capsule form, but Dr. Mercola's office later ordered it in bulk form as a way for patients to save money. 227 Ill. 2d at 506, 886 N.E.2d at 309. Brucker,

According to the opinion:

"At the relevant time, Barbara Pierce, a receptionist with no medical training, was in charge of measuring and bottling the bulk supplements into individual bottles. How-

ever, Dr. Mercola testified in his deposition that he took ultimate responsibility for ensuring that the supplement bottles were filled correctly. Dr. Mercola further explained

in his deposition that, although he would sell the supplements to a member of the general public who requested them, he was not a general retailer of supplements." Brucker,

227 Ill. 2d at 506, 886 N.E.2d at 309. In fact, Mercola testified in a deposition that 99.5% of his supplement sales were to his own patients. at 506-07, 886 N.E.2d at 309. Mercola diagnosed Anna Brucker as suffering from a toxic reaction to an overgrowth of candida in her body. 227 Ill. 2d at 507, 886 N.E.2d at 309. Brucker, Brucker, 227 Ill. 2d

He prescribed her L-

glutamine, an amino acid, to help repair her colon and intestinal lining. Brucker, 227 Ill. 2d at 507, 886 N.E.2d at 309. "At the time of the diagnosis, his office was out of stock of that particular supplement. - 9 -

He did not, however, advise Anna to purchase it elsewhere. Instead, he sold her what was

supposed to be L-glutamine at her next office visit on May 25, 1995. In the meantime,

Pierce had accidentally filled some of the Lglutamine bottles with selenium because an unmarked package of selenium had been left in the storage closet where the bulk L-glutamine was typically stored." Brucker, 227 Ill. 2d

at 507, 886 N.E.2d at 309. Anna purchased one of these bottles and became violently ill after taking the supplement. N.E.2d at 309. Brucker, 227 Ill. 2d at 507, 886

By following the directions for the L-glutamine,

Anna took a dosage of selenium over 20,000 times the safe dosage level for that substance. N.E.2d at 309. In count I of the Bruckers' amended complaint, Anna sought damages for her own injuries. sought damages for loss of consortium. In count II, John Brucker Count III was brought on Brucker, 227 Ill. 2d at 507, 886

behalf of Robert Grant Brucker, a minor, with whom Anna was pregnant when she ingested the selenium. 505, 886 N.E.2d at 308. Brucker, 227 Ill. 2d at

Count III alleged Robert had been poi-

soned in utero when his mother ingested the selenium powder. Brucker, 227 Ill. 2d at 507, 886 N.E.2d at 309. The defendants moved to dismiss count III as barred by the applicable statute of repose found in section 13-212(b) of - 10 -

the Code (735 ILCS 5/13-212(b) (West 2006)). 2d at 508, 886 N.E.2d at 310. the trial court:

Brucker, 227 Ill.

In granting the motion to dismiss,

"explained that the phrase 'arising out of patient care' had been construed broadly and that plaintiffs' claim on behalf of Robert alleged an injury arising out of patient care. Further, the court determined that the

repose period of section 13-212(b) had not been tolled." Brucker, 227 Ill. 2d at 511,

886 N.E.2d at 311. Plaintiffs filed a second amended complaint specifically alleging Robert's legal disability at the time of Anna's poisoning. Brucker, 227 Ill. 2d at 511, 886 N.E.2d at 311-12.

Defendants again moved to dismiss count III, and the trial court again dismissed the count on the same grounds. 2d at 511-12, 886 N.E.2d at 312. Court affirmed the trial court. N.E.2d at 312. Brucker, 227 Ill.

The First District Appellate Brucker, 227 Ill. 2d at 512, 886

Our supreme court then allowed plaintiff's petiBrucker, 227 Ill. 2d at 513, 886

tion for leave to appeal. N.E.2d at 312.

In its decision in Brucker, our supreme court made clear certain points in interpreting the applicability of section 13-212(b) of the Code (735 ILCS 5/13-212(b) (West 2006)). First,

the court noted "the relevant question in determining whether section 13-212 provides the applicable limitations period is not - 11 -

whether the complaint alleges medical malpractice, but whether the complaint alleges an injury arising out of patient care." (Emphasis added.) 314. Second, the supreme court construed the language "arising out of patient care" as simply "requiring a causal connection between the patient's medical care and the injury." (Emphasis added.) Brucker, 227 Ill. 2d at 523, 886 N.E.2d at 318. AccordBrucker, 227 Ill. 2d at 516, 886 N.E.2d at

ing to the court, the language "clearly covers any injuries that have their origin in, or are incidental to, a patient's medical care and treatment." at 318-19. Third, the supreme court noted the term "patient care" encompasses "the entire scope of a person's medical care and treatment." Brucker, 227 Ill. 2d at 524, 886 N.E.2d at 319. Brucker, 227 Ill. 2d at 523-24, 886 N.E.2d

Fourth, the supreme court explicitly rejected a "but for" causation analysis. N.E.2d at 324. Brucker, 227 Ill. 2d at 533-34, 886

Thus, although the language "injuries arising

from patient care" encompasses more situations than just medical malpractice, not all injuries occurring at a hospital or other treatment facility arise from patient care. court: "When the only connection between the treatment and the injury is that the patient would not have been at a place where an injury occurred but for his treatment or that the - 12 According to the

treatment placed the plaintiff in a position where he was injured by a neutral force, the injury does not arise out of patient care." Brucker, 227 Ill. 2d at 534, 886 N.E.2d at 324. Based on the allegations in plaintiff's complaint, the supreme court concluded: "Here, there is no question that plaintiffs' complaint alleged an injury arising out of patient care. The complaint alleged

that Anna was Dr. Mercola's patient and that Dr. Mercola prescribed L-glutamine for Anna but dispensed selenium to her instead. The

complaint further alleged that Anna and her fetus, Robert, were poisoned when she ingested the selenium. Anna's and Robert's

injuries were caused by the care and treatment provided to Anna by defendants. More-

over, it would be preposterous to argue that this was simply a case of 'but for' causation. Anna was not injured by some neutral

force that had nothing to do with the care and treatment defendants provided to her. Rather, her injury was caused because she ingested the substance in the bottle that Dr. Mercola sold to her to treat a medical condi- 13 -

tion that Dr. Mercola had diagnosed."

Bruck-

er, 227 Ill. 2d at 524-25, 886 N.E.2d at 319.

In Brucker, the injury arose from her patient care.

Dr. Mercola

prescribed L-glutamine but mistakenly sold her a bottle marked Lglutamine that contained selenium. Dr. Mercola's act of pre-

scribing the L-glutamine and selling what he thought was Lglutamine to Anna Brucker was part of Anna Brucker's patient care. Brucker, 227 Ill. 2d at 524, 886 N.E.2d at 319. As a

result, the alleged injury arose from patient care. In deciding Brucker, the supreme court examined other cases interpreting the "arising out of patient care" language found in section 13-212 of the Code (735 ILCS 5/13-212 (West 2006)). Brucker, 227 Ill. 2d at 518-23, 886 N.E.2d at 315-18,

examining Miller v. Tobin, 186 Ill. App. 3d 175, 542 N.E.2d 173 (1989); Walsh v. Barry-Harlem Corp., 272 Ill. App. 3d 418, 649 N.E.2d 614 (1995); Stiffler v. Lutheran Hospital, 965 F.2d 137 (7th Cir. 1992); and Cammon v. West Suburban Hospital Medical Center, 301 Ill. App. 3d 939, 704 N.E.2d 731 (1998). In the instant case, plaintiff relies on some of the cases discussed in Brucker. See Miller, 186 Ill. App. 3d 175,

542 N.E.2d 173; Walsh, 272 Ill. App. 3d 418, 649 N.E.2d 614; Stiffler, 965 F.2d 137. Plaintiff also relies on our supreme How-

court's decision in Orlak, 228 Ill. 2d 1, 885 N.E.2d 999.

ever, in each of those cases, the alleged injuries upon which the claims were based resulted from or were caused by patient care or - 14 -

things incidental to patient care. In Orlak, the plaintiff contracted hepatitis through a blood transfusion. 1001-02. Orlak, 228 Ill. 2d at 4-5, 885 N.E.2d at

Plaintiff sued the hospital for failing to notify her

of the need to be tested for hepatitis, which lulled her into the false sense of security that the blood she received via the transfusion was free of disease. N.E.2d at 1002. Orlak, 228 Ill. 2d at 5-6, 885

The court held since plaintiff's injury, upon

which her claim was based, arose from the patient care and treatment she received, i.e., the blood transfusion, her cause of action was barred by the statute of repose found in section 13212 of the Code (735 ILCS 5/13-212 (West 2006)). 2d at 16-17, 885 N.E.2d at 1008. In Miller, the plaintiff alleged "that while he and his wife were receiving marital counseling from defendant, defendant revealed confidential information to plaintiff's wife that plaintiff had specifically asked defendant not to reveal." 186 Ill. App. 3d at 176, 542 N.E.2d at 173. Miller, Orlak, 228 Ill.

The plaintiff argued

he was injured by the defendant's breach of an implied contract. Miller, 186 Ill. App. 3d at 176, 542 N.E.2d at 173. The appel-

late court found the plaintiff's claim was barred by the statute of limitations found in section 13-212 of the Code (735 ILCS 5/13-212 (West 2006)) because his injury arose out of his and his wife's joint treatment. N.E.2d at 174-75. In Walsh, the plaintiff filed his first complaint in - 15 Miller, 186 Ill. App. 3d at 178, 542

September 1992, alleging medical malpractice against the defendants and another physician, Dr. Robert Levy. App. 3d at 420, 649 N.E.2d at 615. Walsh, 272 Ill.

"The plaintiff alleged that,

as a result of the defendants' and Levy's acts or omissions, he suffered the loss of the lens of his right eye, damage requiring additional surgery and impairment of the vision in his right eye." Walsh, 272 Ill. App. 3d at 420, 649 N.E.2d at 615. In

April 1993, the trial court dismissed the plaintiff's first complaint with prejudice. N.E.2d at 615. Walsh, 272 Ill. App. 3d at 420, 649

In September 1993, the plaintiff filed another

complaint, alleging the defendants violated the Consumer Fraud and Deceptive Business Practices Act (Ill. Rev. Stat. 1989, ch. 121 1/2, par. 261 et seq.). N.E.2d at 615. Walsh, 272 Ill. App. 3d at 421, 649

The trial court also dismissed the September 1993

complaint with prejudice, finding the statute of limitations found in section 13-212 of the Code barred the plaintiff's action. Walsh, 272 Ill. App. 3d at 421-22, 649 N.E.2d at 616. The plaintiff argued on appeal that his September 1993 complaint did not contain any allegations of "'injury or death *** arising out of patient care.'" 422, 649 N.E.2d at 616. Walsh, 272 Ill. App. 3d at

Instead, the plaintiff asserted "that

his allegations that the defendant intentionally misrepresented test results and the need for surgery are allegations of fraud that relate only to the commercial aspects of the eye-care business." Walsh, 272 Ill. App. 3d at 422, 649 N.E.2d at 616. In ruling against the plaintiff, the First District - 16 -

Appellate Court stated: "[W]e believe the allegations of the plaintiff's September 1993 complaint stated a cause of action against a physician for an 'injury *** arising out of patient care.' The plaintiff's complaint did contain allegations that he was injured by the defendants' acts: he incurred medical expenses for the

unnecessary surgery; he incurred additional medical expenses to determine what was 'wrong with his eyes following [the surgery]'; and he suffered 'great mental distress and suffering.' The plaintiff argues that, because he alleged no physical injury, the medical malpractice statute of limitations did not apply. We believe that the plaintiff's com-

plaint could be interpreted as alleging physical injury, but even if we were to conclude that there was no allegation of physical injury, this would not remove the plaintiff's complaint from section 13-212. It is a well-

established principle of statutory construction that when a statute is 'clear and unambiguous a court is not at liberty to depart from the plain language and meaning of the - 17 -

statute by reading into it exceptions, limitations[,] or conditions that the legislature did not express.' [Citation.] Contrary to

the plaintiff's argument, there is no requirement in the plain language of section 13-212 that a plaintiff allege a physical injury, and we refuse to infer such a limitation. We also believe that the plaintiff's alleged injury arose out of patient care. The plaintiff asserted in his September 1993 complaint that he went to the defendants seeking advice regarding his eye condition. The defendants then advised him to undergo surgery, which they knew was unnecessary, and, in fact, performed unnecessary surgery on his eye." (Emphases in original.) Walsh,

272 Ill. App. 3d at 423, 649 N.E.2d at 61617. According to the court, "plaintiff's allegations of misconduct were inextricable from the defendants' diagnosis and treatment of his eyes." Walsh, 272 Ill. App. 3d at 425, 649 N.E.2d at 618.

In Stiffler, the plaintiff brought a products-liability suit against the defendant, Lutheran Hospital, alleging a prosthesis that had been medically implanted in her chest cavity during a hernia operation was defective. - 18 Stiffler, 965 F.2d at

138.

"[T]he prosthesis had broken away from its placement and

became tangled in her intestines, thereby causing her extreme discomfort." Stiffler, 965 F.2d at 138. The trial court found

the plaintiff's claim was barred by the statute of repose found in section 13-212 of the Code. Stiffler, 965 F.2d at 139. The

Seventh Circuit Court of Appeals agreed. enth Circuit:

According to the Sev-

"[The plaintiff argues] her injury did not in fact arise 'out of patient care,' and therefore [section] 13-212 cannot act as a bar to her suit against the Hospital. To

support this proposition, she argues that her injury resulted not from the Hospital's medical care, but rather from the Hospital's negligent choice and distribution of a defective prosthetic device. That negligent act, she

maintains, was unrelated to her medical treatment. We disagree.

The fatal flaw in this argument is that the distinction between medical care and the distribution of medical materials is not as clearly delineated as Stiffler would have us believe. Quite the contrary, medical materi-

als are so inextricably linked with every step of today's treatment processes that their use almost per se arises 'out of pa-

- 19 -

tient care.'"

Stiffler, 965 F.2d at 140.

It is clear the plaintiff's injury in Stiffler was incidental to her surgery, which was part of her patient care. Unlike the alleged injuries in Brucker and the other cases cited by plaintiff, plaintiff's injuries were caused by the alleged deviant sexual act of her physician. The parties did not

cite, and we did not find, any Illinois cases dealing with whether injuries resulting from a nonconsensual deviant sexual act committed at a hospital by a patient's doctor "arise from patient care." However, in Doe v. Cherwitz, 894 F. Supp. 344 (S.D. Iowa

1995), the plaintiff claimed the defendant physician, while performing a physical examination on her in 1973, "forcibly had sexual intercourse with her against her will." Supp. at 345. Cherwitz, 894 F.

The federal court in Cherwitz was faced with

interpreting an Iowa statute of limitations that provided actions "for injuries to the person or wrongful death against any physician *** arising out of patient care" shall be brought "within two years." Iowa Code Ann.

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