Gertz v. Campbell , 55 Ill. 2d 84 ( 1973 )

MR. CHIEF JUSTICE UNDERWOOD,

specially concurring:

While I agree that Campbell’s third-party complaint against Dr. Snyder states a cause of action, I am troubled by the court’s reliance upon what I consider a potentially troublesome theory of “equitable apportionment” as the basis for that cause of action.

It seems to me of more than passing importance to denominate with precision the relationship between an original ‘tortfeasor and a subsequently negligent physician, in determining their respective rights. First, it may be reiterated, as the court states, that they are not joint tortfeasors and thus recovery over by Campbell, whatever else it might be labeled, is not contribution. The law in Illinois is too well settled on that point to require further elaboration. Campbell is held to answer for the aggravation of injuries by Dr. Snyder, not because they acted in concert, but rather for the reason that the law regards such injuries as flowing naturally from the original harm. E.g., Chicago City Ry. Co. v. Saxby (1904), 213 Ill. 274, 277.

A remedy might be fashioned for Campbell under the doctrine of indemnity, as the court states, but, as the appellate court noted, a number of obstacles exist to its application here. At least as to tortfeasors, the Illinois view of indemnity has been restricted in scope and is available only in situations where there is “qualitative distinction between the negligence of the two tortfeasors.” (Chicago and Illinois Midland Ry. Co. v. Evans Construction Co. (1965), 32 Ill.2d 600, 603.) Further, its effect is to place the entire loss upon the tortfeasor whose conduct is more culpable; the sort of “apportionment” sought here is thus not cognizable under the Illinois approach to indemnification.

There is, however, an established category into which this cause of action readily fits, and I believe the law to be better stated as allowing the initial tortfeasor to become subrogated to the rights of the injured party as against the physician, who negligently exacerbates injuries following the original harm. This appears to be the view in at least New York and Wisconsin (Clark v. Halstead (1949), 276 App. Div. 17, 93 N.Y.S.2d 49; Fisher v. Milwaukee Electric Ry. & Light Co. (1920), 173 Wis. 57, 180 N.W. 269), and seems to me to most accurately depict the status of the parties. Moreover, it has the virtue of concisely describing the limits of the remedy available, damages to the extent that prior injuries were enlarged through malpractice, and it avoids judicial entanglement in the imprecision and uncertainty of “equitable apportionment.” I would hold Campbell subrogated to the rights of Gertz as against Dr. Snyder.

MR. JUSTICE RYAN joins in this special concurrence.