ANNA MARIE BRUCKER еt al., as Parents and Next Friends of Robert Grant Brucker, a Minor, Appellants, v. JOSEPH M. MERCOLA, D.O., et al., Appellees.
No. 102440
Supreme Court of Illinois
December 28, 2007
Rehearing denied March 24, 2008
227 Ill. 2d 502
Jennifer A. Lowis, Joan M. Kubalanza, Jenny O. Blake, Deborah M. O‘Brien and Mehreen S. Sherwani, of Lowis & Gellen, L.L.P., of Chicago, for appellees.
CHIEF JUSTICE THOMAS delivered the judgment of the court, with opinion.
Justices Freeman, Fitzgerald, and Karmeier concurred in the judgment and opinion.
Justice Kilbride specially concurred, with opinion.
Justice Burke specially concurred, with opinion.
Justice Garman dissented, with opinion.
OPINION
Plaintiffs, Anna Marie Brucker and John Brucker, individually and as parents and next friends of Robert Grant Brucker, filed a three-count amended complaint, in the circuit court of Cook County, against defendants—Dr. Joseph Mercola; his medical practice; and his employee, Barbara Pierce. The complaint alleged that Anna Brucker, who was pregnant at the time, went to Dr. Mercola for an allergy consultation. He prescribed the supplement L-glutamine, but sold her a bottle marked L-glutamine that his employee, Barbara Pierce, had mistakenly filled with selenium. The Bruckers alleged that Anna was injured when she ingested a toxic amount of selenium. In count I, Anna sought damages for her own injuries; in count II, John Brucker sought damages for loss of consortium. Count III was brought on behalf of Robert Grant Brucker, a minor, with whom Anna was pregnant when she ingested the selenium. Defendants moved to dismiss count III, arguing that it was barred by the applicable statute of repose. The trial court granted the motion, and the appellate court affirmed (363 Ill. App. 3d 1016). We allowed plaintiffs’ petition for leave to appeal.
BACKGROUND
On May 2, 1995, Anna went to Dr. Mercola‘s office for an allergy consultation. Dr. Mercola is a doctor of osteopathic medicine. In his deposition, Dr. Mercola described himself as closer to a nutritionist than an internist or family practitioner. His practice involved using nutrition and nutritional supplements to correct chronic diseases, and he prescribed traditional medicine only sparingly. Dr. Mercola sold many of the supplements that he prescribed for his patients. This was a service that he provided for his patients because insurance usually did not cover the cost of the supplements, and he sold them to his patients for “a lot less” than they
“Q. In terms of the sale of the supplements, what percentage would be your patients as opposed to off-the-street people?
A. Oh, 99.5 percent plus.
Q. Would be your patients?
A. Right. We weren‘t a retail outlet. Sometimes they would send their friends or relatives for something.”
Moreover, Dr. Mercola did not maintain a retail area in his office for the sale of supplements. Rather, they were kept behind the front desk where only office staff had access to them.
Dr. Mercola diagnosed Anna as suffering from a toxic reaction to an overgrowth of candida in her body, so he prescribed L-glutamine, an amino acid, to help repair her colon and intestinal lining. At the time of the diagnosis, his office was out of stock of that particular supplement. 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 L-glutamine bottles with selenium because an unmarked package of selenium had been left in the storage closet where the bulk L-glutamine was typically stored. The selenium was for Dr. Mercola‘s wife‘s personal use and was supposed to have been on the file cabinet in Dr. Mercola‘s office. Dr. Mercola did not know how the selenium ended up in the bulk storage closet. Anna purchased one of these bottles and became violently ill when she went home and took the supplement. The directions for the L-glutamine were to mix a teaspoon of the powder with a glass of water, but this amount was over 20,000 times the safe dosage of selenium.
In 1997, plaintiffs filed a two-count medical malpractice complaint against defendants. This complaint was voluntarily dismissed and refiled in September 2002. On December 22, 2003, plaintiffs amended their complaint to add a third count that alleged that their son Robert, who had been born on January 5, 1996, had been poisoned in utero when Anna ingested the selenium powder. Count III alleged that Robert had been injured by the selenium poisoning and contained the following allegations of negligent acts or omissions by defendants:
“(a) Improperly distributing selenium to plaintiff ANNA MARIE BRUCKER,
(b) Failed to maintain proper control measures in the distribution of dietary supplements and prescriptions,
(c) Failed to follow reasonable and necessary precautions to determine that proper dietаry supplements were being prescribed and distributed,
(d) Dispensed selenium to plaintiff ANNA MARIE BRUCKER in a toxic dosage,
(e) Failed to utilize proper and adequate measures to insure that proper
dietary supplements and prescriptions were being dispensed to patients like ANNA MARIE BRUCKER, and (f) Were otherwise careless and negligent.”
Pursuant to
Pursuant to
“Except as provided in Section 13-215 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; provided, however, that in no event may the cause of action be brought after the person‘s 22nd birthday. If the person was under the age of 18 years when the cause of action accrued and, as a result of this amendatory Act of 1987, the action is either barred or there remains less than 3 years to bring such action, then he or she may bring the action within 3 years of July 20, 1987.”
735 ILCS 5/13-212(b) (West 2006) .
Defendants noted that the act that had allegedly caused Robert‘s injuries occurred on May 25, 1995, and count III of plaintiffs’ complaint had been filed on December 22, 2003, nearly seven months after expiration of the eight-year repose period.
In their response to the motion to dismiss, plaintiffs made three arguments. First, they argued that the tolling provision of
“(c) If the person entitled to bring an action described in this Section is, at the time the cause of aсtion accrued, under a legal disability other than being under the age of 18 years, then the period of limitations does not begin to run until the disability is removed.”
735 ILCS 5/13-212(c) (West 2006) .
Plaintiffs argued that Robert‘s status as a fetus at the time of defendants’ negligent conduct was a disability apart from minority. According to plaintiffs, the statute of repose did not begin to run until Robert was born and the disability was removed. Second, plaintiffs argued that, in any event, the limitations period of
The trial court denied defendants’ motion to dismiss. Although the court found that the amended complaint did not relate back to the original complaint, the court agreed with plaintiffs’ other two arguments. First, the court found that the complaint sounded in ordinary negligence rather than medical malpractice and thus the
Defendants moved to reconsider. On the first issue, defendants pointed out that
“If Mrs. Brucker went to Dr. Mercola‘s office and while in his office, something fell out of his storage cabinet and hit her on the head, then that would be akin to negligence in keeping a storage cabinet in proper order. Similarly, if Mrs. Bruckеr was sitting in Dr. Mercola‘s office and something exploded in his storage cabinet, for whatever reason, and caused injury to Mrs. Brucker, then that would be akin to ordinary negligence. If Mrs. Brucker walked into Dr. Mercola‘s office and fell on the way to the bathroom because Dr. Mercola or his staff allowed water to accumulate on the floor, that too would be akin to ordinary negligence. In every instance the patient is injured for a reason that is unrelated to the care and treatment being rendered.”
On the second issue, defendants argued that being a fetus is not a legal disability and therefore the repose period was never tolled.
Upon reconsideration, the trial court changed its opinion on both issues and granted the motion to dismiss. The court 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
Plaintiffs filed a second amended complaint on February 3, 2005. This complaint
Plaintiffs appealed, and the Appellate Court, First District, affirmed. 363 Ill. App. 3d 1016. The appellate court rejected plaintiffs’ contention that their complaint sounded in ordinary negligence and was not subject to
The appellate court also agreed with defendants that
We allowed plaintiffs’ petition for leave to appeal.
ANALYSIS
The trial court dismissed count III of plaintiffs’ second amended complaint pursuant to
To determine whether count III of plaintiffs’ amended complaint was properly dismissed, we first must determine whether count III is a claim subject to the statute of repose set forth in
Arising Out of Patient Care
The limitations periods provided in
“As previously discussed by this court (see, e.g., Anderson v. Wagner (1979), 79 Ill. 2d 295), when the General Assembly limited the time period in which a party could bring a suit for medical
malpractice, it was faced with what it perceived as a medical malpractice insurance crisis. ‘The crisis resulted from the increasing reluctance of insurance companies to write medical malpractice insurance policies and the dramatic rise in premiums demanded by those companies which continued to issue policies. The difficulty in obtaining insurance at reasonable rates forced many health-care providers to curtail or cease to render their services. The legislative response to this crisis sought to reduce the cost of medical malpractice insurance and to insure its continued availability to the providers of health care.’ (Anderson, 79 Ill. 2d at 301.) The legislature therefore enacted, among other provisions, an outside time limit of five years, later amended to four, in which an action could be brought against physicians and hospitals for actions arising out of patient care (Pub. Act 79-960, eff. Nov. 11, 1975; Ill. Rev. Stat. 1975, ch. 83, par. 22.1). (Mega v. Holy Cross Hospital (1986), 111 Ill. 2d 416, 427.) This definite period in which an action could be filed was viewed as necessary to prevent extended exposure of physicians and other hospital personnel to potential liability for their care and treatment of patients, thereby increasing an insurance company‘s ability to predict future liabilities. (See Anderson, 79 Ill. 2d at 307.) This increased ability to predict liability was meant to assist in reducing health-care malpractice insurance premiums.” Hayes, 136 Ill. 2d at 457-58.
This court then concluded that the legislature‘s objective would be advanced only if the statute was read in such a way that it “limit[ed] a physician‘s exposure to liability for damages for injury or death arising out of patient care under all theories of liability.” Hayes, 136 Ill. 2d at 459. Thus, Hayes makes clear that the relevant question in determining whether
Before reaching that question, we must clarify what is not at issue. Both plaintiffs and defendants spend a significant portion of their arguments discussing wholly inapplicable authority. The courts in Mooney v. Graham Hospital Ass‘n, 160 Ill. App. 3d 376 (1987), and Lyon v. Hasbro Industries, Inc., 156 Ill. App. 3d 649 (1987), did not consider the applicability of
Moreover, the scope of each of these statutes is different.
Not surprisingly, courts that have considered the scope of
In Walsh v. Barry-Harlem Corp., 272 Ill. App. 3d 418 (1995), the court held
In Stiffler v. Lutheran Hospital, 965 F.2d 137 (7th Cir. 1992), the Seventh Circuit noted the broad reach of
Finally, in Cammon v. West Suburban Hospital Medical Center, 301 Ill. App. 3d 939 (1998), the plaintiff, as administrator of the estate of her deceased husband, filed suit against West Suburban Hospital after her husband died of cardiopulmonary arrest shortly after undergoing surgery. The plaintiff‘s amended complaint contained several counts seeking recovery for medical malpractice. In count V, however, the plaintiff sought damages based on the hospital‘s alleged spoliation of evidence. In
The appellate court reversed. The court first acknowledged that, in a
“The breach of duty necessary to support a medical negligence action is the defendant‘s deviation from the proper medical standard of patient care. Borowski v. Von Solbrig, 60 Ill. 2d 418, 423 (1975). The damages suffered in such an action arise out of inappropriate patient care. By contrast, a negligence action for spoliation of evidence is predicated upon a breach of duty to preserve evidence. Boyd v. Travelers Insurance Co., 166 Ill. 2d 188, 195 (1995). Although the plaintiff in an action alleging the negligent destruction of evidence resulting in an inability to prove a cause of action for medical negligence must prove the merits of the underlying medical negligence claim (see Boyd, 166 Ill. 2d at 197-98), the fact remains that the damages suffered by the plaintiff in such a case arise from the defendant‘s destruction of evidence, not the breach of a medical standard of patient care.” Cammon, 301 Ill. App. 3d at 950.
Regardless of whether Cammon‘s duty analysis was appropriate, however, its conclusion was unquestionably correct. Destroying her husband‘s operative report after the fact was not part of the care and treatment that the doctor and hospital provided to the plaintiff‘s husband. The injury that the plaintiff suffered was to her ability to prove her lawsuit, and that injury did not arise out of patient care.
Because the applicability of
tion of “arising out of” as “generally mean[ing] ‘originating from,’ ‘growing out of,’ or ‘flowing from‘” (Miller, 186 Ill. App. 3d at 177) is consistent with definitions found in other authorities. Black‘s defines “arise” as “[t]o originate; to stem (from)” or “[t]o result (from).” Black‘s Law Dictionary 115 (8th ed. 2004). Webster‘s defines “arise” as “to originate from a specified source.” Webster‘s Third New International Dictionary 117 (1993).
The phrase “arising out of” is construed most often in workers’ compensation proceedings.
“The ‘arising out of’ component is primarily concerned with causal connection. To satisfy this requirement it must be shown that the injury had its origin in some risk connected with, or incidental to, the employment so as to create a causal connection between the employment and the accidental injury. Caterpillar Tractor Co. v. Industrial Comm‘n, 129 Ill. 2d 52, 58 (1989). Stated otherwise, ‘an injury arises out of one‘s employment if, at the time of the occurrence, the employee was performing acts he was instructed to perform by his emрloyer, acts which he had a common law or statutory duty to perform, or acts which the employee might reasonably be expected to perform incident to his assigned duties. [Citations.] A risk is incidental to the employment where it belongs to or is connected with what an employee has to do in fulfilling his duties.’ Caterpillar Tractor Co. v. Industrial Comm‘n, 129 Ill. 2d at 58.” Sisbro, Inc. v. Industrial Comm‘n, 207 Ill. 2d 193, 203-04 (2003).
The phrase does not encompass “but for” causation in the Workers’ Compensation Act in that it is not enough merely to show that the claimant would not have been at the place where the injury occurred but for his or her employment. Antoskiewicz v. Industrial Comm‘n, 382 Ill. 149, 154 (1943); see Johnson v. Industrial Comm‘n, 278 Ill. App. 3d 59, 62 (1996). It is also not sufficient to show that the accident would not have occurred but for the fact that the claimant‘s employment placed the claimant in a position in which he was injured by a neutral (neither personal nor related to employment) force. See USF Holland, Inc. v. Industrial Comm‘n, 357 Ill. App. 3d 798, 803 (2005).
In other contexts, however, courts have linked “arising out of” with “but for” causation. When a statute not only uses the phrase “arising out of” but also includes the phrases “relating to” and “in connection with,” such as in section 5-227 of the Pension Code (
Considering the above authorities, we construe “arising out of patient care” simply as requiring a causal connection between the patient‘s medical care and the injury. While the phrase does not need to be construed so broadly as to encompass “but for” causation, it clearly covers any
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. Moreover, 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 condition that Dr. Mercola had diagnosed.
The cases discussed earlier also support the conclusion that Robert‘s alleged injuries arose out of patient care. The courts in these cases noted that section 13-212 was intended to be broad. Miller found that an injury arose out of patient care when it grew out of or flowed from the plaintiff‘s and his wife‘s treatment. Walsh found that the allegations of misconduct were inextricable from the defendants’ diagnosis and treatment of the plaintiff. Stiffler found that the use of medical materials are so inextricably linked to patient care that their use almost per se arises out of patient care. All of these conclusions are equally true here, where Dr. Mercola used supplements to treat his patients, bottled them in his office so that his patients could get them at a lower price, recommended one to treat plaintiff, but then sold her a mispackaged bottle. Moreover, this situation is obviously unlike Cammon, where the destruction of medical records was unrelated to the provision of medical care and treatment.
Plaintiffs attempt to get around the seemingly inescapable conclusion that their complaint alleged an injury arising out of patient care by arguing that Dr. Mercola “wore two hats“: he was both a doctor of osteopathic medicine and a retail vendor of
“For example, a hospital-run gift shop which sells non-prescription medicinе to the general public might be held strictly liable if the product ultimately proved harmful for consumer use. But that is not this case.” Stiffler, 965 F.2d at 141.
Nor is it this case.
The Stiffler hypothetical is notable in that, in order to come up with an example of an injury that did not arise out of patient care, the Seventh Circuit was forced to use an example in which there was no patient. According to the Seventh Circuit, an injury would not arise out of patient care if a hospital gift shop stocked nonprescription medicine, a consumer bought that medication at the gift shop, and it was later determined that this type of medication was not safe for consumer use. Of course, that is not at all what was alleged here. In this case, the plaintiff alleged that she and her fetus were poisoned and that this poisoning occurred because she saw Dr. Mercola for medical treatment, he prescribed L-glutamine for her, and then he sold her a bottle marked “L-glutamine” that an employee in his office had mistakenly filled with selenium. Unlike the gift-shop consumer in the Stiffler hypothetical, plaintiffs in this case alleged an injury arising out of patient care.
Moreover, the record clearly refutes plaintiffs’ claim that Dr. Mercola wore the hats of both a doctor of osteopathic medicine and a retail vendor of supplements. Although Dr. Mercola would sell supplements to a member of the general public who requested them, that happened very rarely. When asked about this in his deposition, Dr. Mercola explained that his office was not a retail outlet for supplements. Although his patients would occasionally send their friends or relatives in to buy supplements, “99.5 percent plus” of sales were to his patients. Thus, the only evidence in the record on this issue shows that, although Dr. Mercola would sell his supplements to a member of the general public who requested them, this was a service that he provided for his patients. He did not hold himself out as a retailer of supplements and did not maintain a retail area in his office for the sale of supplements. Moreover, it was not one of these members of the general public who was injured in this case; it was plaintiff Anna Brucker, a patient for whom Dr. Mercola prescribed the supplement to treat a medical condition but then sold a mislabeled bottle. The appellate court had it exactly right when it concluded:
“Perhaps defendants would be liable under ordinary negligence if they had injured a member of the general public by promoting and selling supplements in mislabeled bottles. But that is not this case. Dr. Mercola examined Mrs. Brucker and treated her allergy by recommending, inter alia, L-glutamine. After Dr. Brucker replenished his supply of L-glutamine, Mrs. Brucker returned to his office and purchased the mislabeled bottle. The medical malpractice repose provision applies to count III of plaintiffs’ amended complaint because count III alleged an injury that arose
out of patient care.” 363 Ill. App. 3d at 1023.
In their special concurrences, Justices Kilbride and Burke find it especially relevant that nonpatients could, and sometimes did, purchase supplements from Dr. Mercola. 227 Ill. 2d at 557-58 (Kilbride, J., specially concurring); 227 Ill. 2d at 571 (Burke, J., specially concurring). The question the concurring justices must consider, however, is whether it would change their view if Dr. Mercola had testified that he would not sell his supplements to a member of the general public who requested him. If that fact would not change the concurring justices’ position, then the point is irrelevant and need not be discussed. If it would, then it is incumbent on the concurring justices to explain how Dr. Mercola‘s relationship with a third party could possibly change the nature of his relationship with his patient, Anna Brucker.
Plaintiffs’ only other argument on this point is a brief four-sentence argument that section 13-212 does not apply because Barbara Pierce, the employee who filled the L-glutamine bottle with the wrong substance, was an office receptionist, not a licensed health-care provider. Section 13-212 applies to “any physician, dentist, registered nurse or hospital duly licensed under the laws of this State.”
Before leaving this issue, we would be remiss if we did not address the special concurrences filed by Justices Kilbride and Burke. Although both justices incorrectly argue that the majority adopts “but for” causation (seemingly finding it easier to refute what the opinion expressly disavows than what it adopts), the substance of their positions is different. Justice Kilbride agrees with the majority that the appropriate test to determine the applicability of section 13-212 is whether the complaint alleged an injury “arising out of patient care,” but concludes that the majority has ignored the “patient care” component and applied the statute to an injury wholly unrelated to patient care. By contrast, Justice Burke argues that the court should ignore the legisla- ture‘s pronouncement that the statute apрlies to injuries arising out of patient care and instead construe the statute to mean that it applies to injuries arising out of medical negligence. Both points are easily refuted.
We address Justice Kilbride‘s concurrence first. Justice Kilbride argues that the majority has considered only the “arising out of” component of “arising out of patient care” while ignoring the “patient care” component. Thus, Justice Kilbride contends that we have improperly applied section 13-212 to a situation having nothing to do with patient care. Indeed, Justice Kilbride makes the following representations in his special concurrence: (1) “the injury alleged was not based on improper or negligent patient care” (227 Ill. 2d at 554 (Kilbride, J., specially concurring)); (2) the legislature did not intend to “shield medical
To reiterate: Dr. Mercola is an osteopath who uses nutritional supplements to treat his patients. As a service to his patients, he stocks the supplements he prescribes in his office so that his patients can have easy access to them and obtain them at a lower price than they could elsewhere. As an additional cost-saving measure, he purchased some of the supplements in bulk form and bottled them in his office. He delegated the task of bottling supplements to a staff person with no medical training. He diagnosed his patient Anna Brucker as having a condition requiring treatment with L-glutamine, one of the supplements that he purchased in bulk form and bottled in his office. This particular supplement was not in stock when he prescribed it for Anna, but he did not recommend that she buy it elsewhere. Rather, he sold it to her when she came in for her next office visit. The employee to whom he had delegated the responsibility for filling the supplement bottles had accidentally filled the L-glutamine bottles with selenium, a dangerous substance that Dr. Mercola kept in an unmarked container. Anna and her fetus were then poisoned when she took the substance in the bottle that Dr. Mercola had sold to her to treat a medical condition thаt he had diagnosed. Given these facts, it is unclear how Justice Kilbride could possibly conclude that the injuries to Anna and her fetus were not based on “improper or negligent patient care“; or that Dr. Mercola‘s sale of supplements was “not associated with” his treatment of patients, was “completely unrelated to his care and treatment of patients,” and did not support his medical practice. Justice Kilbride appears to base his conclusion on the rule that, in ruling on a section 2-619 motion to dismiss, pleading and supporting documents must be construed in the light most favorable to the plaintiff. 227 Ill. 2d at 552 (Kilbride, J., specially concurring). Justice Kilbride takes this to mean that we must “consider the factual possibility that Dr. Mercola‘s supplement sales business is separate from his medical practice.” 227 Ill. 2d at 552 (Kilbride, J., specially concurring). Here, however, plaintiffs did not plead that Dr. Mercola‘s distribution of supplements was separate from his medical practice. Rather, plaintiffs pleaded that Dr. Mercola “failed to utilize proper and adequate measures to insure that proper dietary supplements and prescriptions were being dispensed to patients like ANNA MARIE BRUCKER.” (Emphasis added.) Moreover, the deposition testimony showed conclusively
Justice Kilbride‘s concerns about reading “patient care” out of the statute would perhaps better be directed at Justice Burke‘s special concurrence than at the majority opinion, as Justice Burke has made her desire to do so explicit. Justice Burke objects to any attempt to interpret “arising out of patient care” by considering the meaning of “arising out of” or “patient care.” Instead, Justice Burke proposes that we should replace the phrase “patient care” with either “medical malpractice” or “an error in medical judgment.” 227 Ill. 2d at 565 (Burke, J., specially concurring). No explanation is provided for how these terms became synonymous with “patient care.” Justice Burke‘s argument appears to be that, because sectiоn 13-212 was enacted in response to a perceived medical malpractice crisis and because courts informally refer to this section as the “medical malpractice statute of repose,” we are free simply to ignore the language the legislature chose and to insert “medical malpractice” into the statute. Justice Burke then criticizes the major- ity for failing to consider whether this is a claim for ordinary negligence rather than medical malpractice because, according to Justice Burke, this is the touchstone for whether the statute applies.
The errors in Justice Burke‘s approach are manifest. First, we have clear evidence that, when the legislature wants to make healing art malpractice the touchstone for a statute‘s applicability, it knows how to do so. As we explained above, section 2-622(a), which governs when attorneys’ affidavits and health professionals’ reports are required, applies to “any action, whether in tort, contract or otherwise, in which the plaintiff seeks damages for injuries or death by reason of medical, hospital or other healing art malpractice.” (Emphasis added.)
Second, there is no need to consider whether plaintiffs’ claim is one for ordinary
Next, it is unfortunate that both Justices Kilbride and Burke have decided to lace their separate writings with repeated assertions that the majority adopts “but for” causation when we in fact explicitly reject it. Justice Burke even goes so far as to claim that the majority‘s interpretation of “arising out of patient care” would apply to a situation in which a doctor sends a patient to get an X-ray and, while there, the plaintiff slips and falls or is hit on the head by something that falls out of a cabinet. In fact, these are the types of injuries that are explicitly excluded under our test. See 227 Ill. 2d at 521-24. 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 treatment placed the plaintiff in a position where he was injured by a neutral force, the injury does not arise out of patient care. 227 Ill. 2d at 523. In Justice Burke‘s hypothetical, the accident would not have occurred but for the fact that the patient went to this particular medical provider for treatment, just as it would not have happened but for the fact that the plaintiff was born, or that the plaintiff decided not tо cancel the doctor‘s appointment to go to a baseball game, etc., but the injury was not caused by the patient‘s care and treatment. By contrast, in the case before us, the plaintiffs’ injury was caused directly by Anna‘s treatment. Dr. Mercola diagnosed her with a medical condition, decided to treat the condition by selling her a substance that he had bottled in his office, and Anna and her fetus were injured because an employee acting under Dr. Mercola‘s direction placed the wrong substance in the bottle. We are confident in the bench‘s and bar‘s ability to see the distinction.
Perhaps the most significant error in both special concurrences, however, is that their analyses are completely divorced from the complaint that plaintiffs filed.
“(a) Improperly distributing selenium to plaintiff ANNA MARIE BRUCKER, (b) Failed to maintain proper control measures in the distribution of dietary supplements and prescriptions, (c) Failed to follow reasonable and necessary precautions to determine that proper dietary supplements were being prescribed and distributed, (d) Dispensed selenium to plaintiff ANNA MARIE BRUCKER in a toxic dosage, (e) Failed to utilize proper and adequate measures to insure that proper dietary supplements and prescriptions were being dispensed to patients like ANNA MARIE BRUCKER, and (f) Were otherwise careless and negligent.”
The specially concurring justices may have concluded for themselves that this case is simply about the retail sale of supplements and errors committed by nonmedical personnel, but that is not the lawsuit that plaintiffs filed and those are not the facts that plaintiffs have indicated that they intend to prove. Rather, plaintiffs have alleged that Dr. Mercola—an osteopath whose medical practice consists of treating patients with nutritional supple- ments—failed to maintain sufficient control procedures over the distribution of supplements to his patients, and that as a direct result of that negligence, his patient, Anna Brucker, was poisoned. Plaintiffs have obtained a report from another osteopath who has reviewed the records and opined that the care and treatment Dr. Mercola provided to Anna Brucker fell below the minimum standard of care and constituted negligence. Several of the plaintiffs’ allegations of negligence concern acts that could have been committed only by Dr. Mercola. The specially concurring justices never explain how they have determined that the only allegation of negligence is that Barbara Pierce filled supplement bottles incorrectly.
Finally, it is worth noting that, even under the standard proposed by Justice Burke—there must be an allegation that the medical provider committed an error in judgment or breached a medical standard of care (227 Ill. 2d at 565 (Burke, J., specially concurring)), this complaint alleged an injury arising out of patient care. The allegations of negligence center largely on the control procedures in the office, and the record unquestionably shows that Dr.
Tolling of the Statute of Repose
Plaintiffs contend that their complaint was timely filed because the eight-year repose period provided in section 13-212(b) was tolled until Robert was born. Section 13-212(b) establishes the repose period for minors as eight years after the occurrence or omission alleged to have caused the injury. Section 13-212(c), however, provides a tolling provision:
“(c) If the person entitled to bring an action described in this Section is, at the time the cause of action accrued, under a legal disability other than being under the age of 18 years, then the period of limitations does not begin to run until the disability is removed.”
735 ILCS 5/13-212(c) (West 2006).
Plaintiffs argued in the lower courts that Robert‘s status as a fetus was a legal disability that tolled the repose period until Robert was born. If the eight-year repose period did not begin to run until Robert was born, then count III of plaintiffs’ complaint was timely filed.
The appellate court held that it did not need to determine whether Robert‘s status as a fetus at the time the injury occurred was a disability because the relevant time to assess whether Robert was under a disability was not at the time the injury occurred but at the time the cause of action accrued. 363 Ill. App. 3d at 1025. Prior to 1987, section 13-212 contained the word “occurred” where the current one says “accrued.” See
The appellate court determined that a cause of action for an injury to a fetus accrues at birth. The appellate court relied on Simmons v. Weisenthal, 29 Pa. D. & C.2d 54 (1962), a decision of the Pennsylvania Court of Common Pleas. The question in Simmons was when the statute of limitations begins to run when a child is injured while a fetus. The court concluded that the statute runs from the date the child is born rather than from the date of fetal injury. The Pennsylvania court relied in part on the dissent of Justice Boggs in Allaire v. St. Luke‘s Hospital, 184 Ill. 359, 368 (1900) (Boggs, J., dissenting), in which Justice Boggs suggested that liability for an injury to a fetus attaches when the child is born alive. The majority position in Allaire was that there was no cause of action for prenatal injuries. In Amann v. Faidy, 415 Ill. 422 (1953), this court reversed Allaire and recognized a cause of action under the wrongful-death statute for the death of an infant who, while viable, sustained a prenatal injury due to a third person‘s negligence. In Rodriquez v. Patti, 415 Ill. 496 (1953), this court recognized a common law right of action for personal injuries to a viable fetus when wrongfully injured because
The appellate court, relying on these authorities, concluded that, “[b]ecause the fetus‘s recognized legal right to begin life with a sound mind and body is assertable after birth, *** a claim for prenatal injury on behalf of a fetus accrues when the fetus is born.” 363 Ill. App. 3d at 1025. Accordingly, the appellate court held that Robert‘s cause of action accrued when he was born and, because he was not under a disability other than minority at that time, the statute of repose was not tolled. Thus, the repose period ended eight years after the injury occurred, and count III of plaintiffs’ complaint was filed too late.
The appellate court recognized that its decision created a conflict with Kararo v. Ruiz, 201 Ill. App. 3d 61 (1990), but the court believed that Kararo was wrongly decided. In Kararo, the Appellate Court, Third District, held that the eight-year repose period for minors applied to an injury that occurred when the plaintiff was a minor but accrued after the plaintiff reached majority. The plaintiff in that case was born on January 13, 1968, and alleged that the defendant negligently misdiagnosed and treated her until November 16, 1984. The plaintiff alleged that the defendant negligently misdiagnosed her as suffering from Crohn‘s disease and negligently performed an unnecessary appendectomy on the plaintiff. The complaint alleged that plaintiff learned that she was not suffering from Crohn‘s disease on July 17, 1987. Plaintiff filed her complaint on January 12, 1989. The defendant moved to dismiss, arguing that plaintiff‘s complaint was time-barred. The trial court granted the motion. The trial court ruled that because plaintiff discovered the medical negligence when she was 19, her malpractice claim was subject to the limitations period provided in section 13-212(a) rather than the one provided in section 13-212(b). Kararo, 201 Ill. App. 3d at 62.
The plaintiff appealed, and the appellate court reversed. The court stated that the controversy centered on the meaning of the word “accrued” in section 13-212(b). The court noted that, prior to the 1987 amendment, section 13-212 used the word “occurred” rather than “accrued.” The court explained that this court has adopted the discovery rule in medical malpractice cases, and that this rule holds that such a cause of action accrues when the person injured learns of his injury or should reasonably have learned of it, and that a form of the discovery rule had been made an explicit part of section 13-212(a). Kararo, 201 Ill. App. 3d at 63, citing Witherell v. Weimer, 85 Ill. 2d 146 (1981).
The Kararo court rejected the defendant‘s argument that, because plaintiff‘s cause of action accrued when she was over 18 years of age, the repose period for adults found in section 13-212(a) governed her cause of action rather than the repose period provided for minors in section 13-212(b). Relying on the rules that statutes
Plaintiffs argue that the appellate court erred in refusing to follow Kararo. In addition to Kararo, plaintiffs rely on Bruso v. Alexian Brothers Hospital, 178 Ill. 2d 445 (1997), S.D. v. Kishwaukee Community Hospital, 288 Ill. App. 3d 472 (1997), and Clark v. Han, 272 Ill. App. 3d 981 (1995). In these cases, the courts examined the 1987 amendment to section 13-212 and determined that the substance of the provision had not changed. In Bruso, this court stated:
“What defendants fail to acknowledge, however, is that in the 1987 amendment to section 13-212, the legislature chose not to alter the existing tolling provision that applied to the legally disabled. Other than eliminating minority as a basis for tolling, the 1987 amendment did not change the substance of the tolling provision.” (Emphasis in original.) Bruso, 178 Ill. 2d at 458.
In S.D., the appellate court held that “[t]he legislature did not change the substance of the tolling provision in the 1987 amendment of section 13-212.” S.D., 288 Ill. App. 3d at 477. In Clark, the appellate court held that the substance of the tolling provision in subsection (c) was not changed by the 1987 amendment and that the rights “ensured in subsection (c) have not been affected or changed by subsection (b).” Clark, 272 Ill. App. 3d at 989. Plaintiffs further point out that, in each one of these cases, the plaintiff was a minor with a legal disability at the time of occurrence and that each decision held that the statute of repose did not begin to run because the minor was disabled at the time of occurrence.
Defendants respond by arguing that plaintiffs are reading too much into these decisions. Defendants acknowledge that these decisions held that the substance of the tolling provision was not altered by the 1987 amendment, but point out that in none of these decisions did the court specifically address the change of the word “occurred” to “accrued.” Defendants further argue that in these cases the occurrence of the injury and the accrual of the cause of action happened at the same time, so the courts had no need to address what would happen when the cause of action accrues at a different time than when the injury occurred.
This question is a difficult one of statutory construction. Keeping in mind the principles of statutory construction cited earlier in this opinion, we cannot agree with the appellate court‘s analysis. According to the appellate court, this case is
period began at the time of the occurrence and was never tollеd because Robert was under no disability when he was born. His claim, filed more than eight years after the date of occurrence, was simply too late.
We disagree with the appellate court and hold that the word “accrued,” as used in
Before the 1987 amendment to
For several reasons, then, the most logical way to read “accrued” in sections (b) and (c) is in its more general sense of simply meaning that facts exist that authorize the bringing of the cause of action or that the claim has come into being as an enforceable claim or right. In virtually all cases arising under
Although the definition of “accrued” that we have used above means that in virtually every case “accrual” and “occurrence” will happen at the same time, the appellate court correctly pointed out that this is not necessarily the case when the injury is to a fetus. As explained earlier, courts, including this one, have generally held that a cause of action for prenatal injuries cannot be maintained until birth. Thus, when a fetus is injured, the occurrence of the injury and the accrual of the cause of action take place at different times. Because no suit may be maintained until birth, that is the time at which facts exist that authorize thе bringing of a cause of action and that the claim has come into being as an enforceable claim or right. We disagree with the appellate court and the defendants, however, that this means that the statute of repose began to run while Robert was still a fetus.
Indeed, the very case that defendants and the appellate court relied upon—Simmons—held that a statute of limitations for prenatal injuries may not begin to run until the child is born. The court determined that a cause of action for prenatal injuries accrued at birth, but then drew
Nevertheless, in LaBello v. Albany Medical Center Hospital, 85 N.Y.2d 701, 651 N.E.2d 908, 628 N.Y.S.2d 40 (1995), the Court of Appeals of New York reached the same conclusion as the Simmons court, and the statute at issue there—like the Illinois statute—ran from the date of the occurrence. The plaintiff in that case brought an action on behalf of her 12-year-old son for alleged prenatal injuries. The court had to determine if the limitations period began to run on the date of occurrence or the date of birth. On this point, the statute could not have been clearer:
“An action for medical, dental or podiatric malpractice must be commenced within two years and six months of the act, omission or failure complained of or last treatment where there is continuous treatment for the same illness, injury or condition which gave rise to the said act, omission or failure; provided, however, that where the action is based upon the discovery of a foreign object in the body of the patient, the action may be commenced within one year of the date of such discovery or of the date of discovery of facts which would reasonably lead to such discovery, whichever is earlier. For the purpose of this section the term ‘continuous treatment’ shall not include examinations undertaken at the request of the patient for the sole purpose of ascertaining the state of the patient‘s condition. For the purpose of this section the term ‘foreign object’ shall not include a chemical compound, fixation device or prosthеtic aid or device.” (Emphasis added.)
N.Y. C.P.L.R. 214-a (McKinney 2003).8
The supreme court, appellate division, over the dissent of two justices, held that the limitations period began to run on the date of the occurrence that led to the injury. LaBello v. Albany Medical Center Hospital, 200 A.D.2d 299, 614 N.Y.S.2d 459 (1994). The court of appeals unanimously reversed. The court held that, as a matter of policy, the limitations period could not begin running prior to the attachment of liability and prior to the time the infant had a legal right to sue. The court relied in part on this court‘s decision in Walters, 240 Ill. at 263, in which this court explained that no cause of action exists until the claimant can legally sue. If liability did not attach until birth, and the infant had no cause of action until birth, then the limitations period must also begin to run at birth. LaBello, 85 N.Y.2d at 704-06, 651 N.E.2d at 909-10, 628 N.Y.S.2d at 41-42. The court recognized that the statute provided for only two exceptions to the commencement of the limitations period on the date of occurrence: continuous treatment and foreign object
In Bailey v. Khoury, 891 So. 2d 1268 (La. 2005), the Supreme Court of Louisiana reached the same conclusion when construing a statute that provided a limitations period of one year from the date of the occurrence, or one year from the date of discovery, but in no event more than three years from the date of the occurrence. In that case, the child was injured in utero when her mother took the prescription drug Depakote. Through an ultrasound test, the pregnant mother learned that birth defects were certain. She brought suit on her own behalf and on behalf of the child, and the defendants argued that the limitations period began when the mother learned of the birth defects, six months before the child was born. At that time, the occurrence had happened and the mother had discovered the injury.
Nevertheless, with regard to the mother‘s claim on behalf of her child, the Supreme Court of Louisiana responded to the defendants as follows:
“As indicated in the introduction to this opinion, the specific argument set forth by the defendants is apparently unique in the reported case law. In fact, we have not discovered any reported cases that have considered an argument that, under the discovery rule, the statutory period for filing suit seeking damages arising from birth defects or other prenatal injuries should commence on a date prior to the child‘s birth when the parent acquired knowledge of the birth defects as a result of a medical procedure. Rather, the reported cases generally fall into two categories: (1) those holding that the statutory period for filing suit commences on the date of the child‘s birth, and (2) those applying the discovery rule and holding that the statutory period for filing a suit for damages arising from birth defects or other prenatal injuries does not begin until the date after the child‘s birth when the cause of the birth defects was discovered.” Bailey, 891 So. 2d at 1278.
The court ultimately concluded that the limitations period could not begin to run until birth:
” ‘It is apparent that liability for a prenatal injury attaches at the earliest possible time upon birth of the infant, whether recovery is allowed for a live or a still birth. If liability does not attach until birth, whether alive or still, there is what has been termed “an implied condition” that the child be born. We do not see, therefore, how the statute of limitations can possibly begin to run until fulfillment of the implied condition that the child be born, at which time liability will attach. Until there is liability there can be no right upon which an action could be brought, and until a right exists the statute cannot run.’ ” Bailey, 891 So. 2d at 1282, quoting Simmons, 29 Pa. D. & C.2d at 55-56.
The court relied in part on a law review article that had criticized the lower appellate court‘s ruling in LaBello. See Bailey, 891 So. 2d at 1279, citing J. Chow, Civil Practice Law and Rules, 69 St. John‘s L. Rev. 675 (1995).
The Supreme Court of Texas reached the opposite result in Brown v. Shwarts, 968 S.W.2d 331 (Tex. 1998). In Brown, the plaintiffs brought a wrongful-death action on behalf of their son, alleging that negligent prenatal care led to their son‘s death one day after he was born. They filed their suit 2 years and 76 days after the treatment alleged to have caused the injury.
Faced with these divergent lines of reasoning, we prefer the position taken by the New York and Louisiana courts: because liability does not attach until birth and because there is no right to bring a cause of action until birth, the limitations period cannot begin to run until birth. The New York court reached this conclusion even though the limitations period in its statute—as with the Illinois statute—ran from the date of the occurrence. The New York and Louisiana cases contain extensive discussions of the policy concerns at issue, while the Texas court summarily disposed of the issue without considering these concerns. Nothing would seem more repugnant to basic notions of fundamental fairness than to hold that the clock is ticking on someone‘s right to file suit during a period in which the law forbids that person from filing suit. We would be loathe to render such a holding generally, but we will definitely not do so here where the rights of a minor to seek redress for his injuries are at stake. As we noted earlier, this court has stated that “it has long been the public policy of this state that courts should carefully guard the rights of minors and that a minor should not be precluded from enforcing his or her rights unless clearly barred from doing so.” Bruso, 178 Ill. 2d at 454-55. We do not find in
CONCLUSION
Plaintiffs’ complaint, which alleged that Anna and Robert were poisoned when defendants negligently sold Anna the wrong substance to treat a medical condition that Dr. Mercola had diagnosed, alleged an injury arising out of patient care. Accordingly, count III of plaintiffs’ complaint is subject to the eight-year repose period in
Appellate court judgment reversed;
circuit court judgment reversed;
cause remanded.
JUSTICE KILBRIDE, specially concurring:
While I agree with the result reached in this case, I reject the majority‘s application of the phrase “arising out of patient care” in the medical malpractice statute of repose. The majority‘s application of the statute effectively applies a “but for” causation test and places too much emphasis on the statute‘s “arising out of” language, with insufficient emphasis on the fundamental “patient care” component. The majority‘s resultant finding that the negligent conduct in this case arose out of “patient care” leads to the erroneous conclusion that count III of the Bruckers’ complaint was subject to the repose period of
In the Bruckers’ complaint, count III asserts injuries arising out of negligence associated with Dr. Mercola‘s sale of mislabeled supplements. On appeal, the Bruckers argue that Dr. Mercola‘s supplement
Thus, our inquiry must be limited to whether the negligent conduct alleged in count III constitutes “patient care” under this, or any other, possible set of facts. In my view, if Dr. Mercola‘s supplement sales are separate from his medical practice, the medical malpractice statute of repose is not applicable because those sales would not constitute “patient care.” Our case law supports this conclusion. See Hayes v. Mercy Hospital & Medical Center, 136 Ill. 2d 450 (1990); Cammon v. West Suburban Hospital Medical Center, 301 Ill. App. 3d 939, 942 (1998); Walsh v. Barry-Harlem Corp., 272 Ill. App. 3d 418, 420 (1995); Miller v. Tobin, 186 Ill. App. 3d 175, 176-77 (1989). See also Stiffler v. Lutheran Hospital, 965 F.2d 137 (7th Cir. 1992).
In Hayes, 136 Ill. 2d at 457, this court explained the legislative intent behind
Hayes noted that complaints need not allege medical malpractice to fall within the medical malpractice statute of repose. Hayes, 136 Ill. 2d at 459. Plaintiffs may not escape that limitation simply by applying a different legal label to a damage claim arising out of patient care. Hayes did not hold, however, that every cause of action brought against a covered medical provider is subject to section 13-212. Nor did it hold that
Here, application of the statute of repose does not advance the legislative purpose underlying
Similarly, in Stiffler, 965 F.2d 137, the plaintiff argued that
In this case, the facts are distinguishable from Stiffler because Dr. Mercola‘s erroneous sale of selenium was not part of Anna Marie‘s treatment plan. The prosthetic device implanted in Stiffler was an integral component in the patient‘s treatment plan. Unlike the prosthetic device in Stiffler, Anna Marie could have purchased the supplement Dr. Mercola recommended from any vendor. She was not required to purchase L-glutamine from Dr. Mercola.
In Cammon, 301 Ill. App. 3d at 942, the plaintiff filed suit against a hospital when her husband died of cardiopulmonary arrest shortly after surgery. One count of the complaint sought damages based on the hospital‘s alleged spoliation of evidence, allegedly prejudicing her additional claims of medical malpractice. The trial court dismissed the count as time-barred under
Applying the guidance offered by these cases,
Here, the legislative intent is not advanced by a finding that the negligent conduct alleged fell under the umbrella of “patient care.” Dr. Mercola diagnosed Anna Marie‘s condition and instituted a treatment plan as part of his medical practice. Under that plan, he recommended that she take the dietary supplement L-glutamine. That recommendation is not, however, the basis for plaintiffs’ damage claim. The Bruckers do not allege that L-glutamine was improperly recommended nor that Dr. Mercola recommended that Anna Marie take selenium supplements. The complaint alleged injuries resulting from Anna Marie‘s ingestion of selenium from one of several containers erroneously filled by one of Dr. Mercola‘s nonmedical employees as part of the employee‘s duties supporting the sale of dietary supplements, not the medical practice. The container was not prepared specifically for Anna Marie as part of her treatment plan. Thus, the claimed damages did not originate in Dr. Mercola‘s medical diagnosis and treatment plan. If Anna Marie had been injured as a result of taking the L-glutamine Dr. Mercola recommended, her claim unquestionably would have arisen out of the recommended treatment and would have constituted “patient care.” That is not what happened, however.
Here, Anna Marie purchased the improperly labeled supplement from a shelf in the reception area. The product was readily available without a prescription to both patients and nonpatients. No medical license was required to dispense the supplements. Although Dr. Mercola sold most of his supplements to his patients, nonpatients could, and sometimes did, purchase supplements from his office. Unlike the majority (227 Ill. 2d at 527), I believe the relevant question is not whether Dr. Mercola would make the business decision to sell his supplements to the general public or only to his patients but rather whether his sale of supplements to a member of the general public would cause that customer to become his “patient.” Anna was undoubtedly a patient in Dr. Mercola‘s
Nonetheless, it may be possible for Dr. Mercola‘s sale of a supplement to an existing patient to constitute “patient care” if the purchase was based on his specific instruction as the patient‘s physician to purchase the item only from his office. Those are not the facts in this case, however, and that issue is not before this court. Despite the majority‘s concern that Dr. Mercola did not “recommend” that Anna buy the supplement elsewhere when it was initially out of stock in his office (227 Ill. 2d at 530), there is no indication in the record that he ever “recommended” any particular sales outlet, including his own. Nor is there any indication in the record that Dr. Mercola personally “sold” the supplement to Anna when it was back in stock. See 227 Ill. 2d at 530. Similarly, the majority points out that “plaintiffs did not plead that Dr. Mercola‘s distribution of supplements was separate from his medical practice” (227 Ill. 2d at 530-31), but neither did they plead that the two were inseparable. That remains a question of fact that must be determined at trial, after the completion of discovery. Contrary to the majority‘s contention (227 Ill. 2d at 536), I have not conclusively determined that Dr. Mercola‘s supplement sales could not be part of his medical practice, even though it is clear that the bottling errors alleged were made by a member of his nonmedical staff.
Although the majority correctly states that “[t]he rule of liberal construction of pleadings *** does not require a court to consider whether the complaint would have been properly dismissed if the plaintiffs had pleaded the opposite of what they did” (227 Ill. 2d at 531), the pleadings in this case did not allege that the supplement sales and licensed medical practices were one and the same. Based on the record before this court, the critical point is that the office‘s sale of the majority of its supplements to Dr. Mercola‘s patients does not convert a retail business enterprise into patient care, as specified in
As in Cammon, here the damages did not arise out of any alleged breach of a duty to provide propеr medical care. Rather, the damages arose out of negligence in the preparation and sale of consumer goods and was strictly related to Dr. Mercola‘s retail supplement sales. Thus, the gravamen of the Bruckers’ claim is not improper patient care. The majority‘s emphasis on the “arising out of” portion of
Although the majority expressly disavows “but for” causation in construing the
Any application of the phrase “arising out of patient care” that includes “but for” causation sweeps too broadly and in ways that were unintended by the legislature‘s enactment of the medical malpractice statute of repose. For instance, here the application of a broad “but for” causation permits Dr. Mercola to escape liability for ordinary negligence associated with his sale of supplements when that sale was completely unrelated to the medical care and treatment of his patient, i.e., “patient care.” As we recognized in Hayes, the legislature enacted the time limitation in
Because a
The allegations cited by the majority (227 Ill. 2d at 534-36) do not specifically contend that two parts of Dr. Mercola‘s business are inseparable or that Dr. Mercola‘s allegedly negligent conduct took place in the context of his medical practice rather than his supplement business.
JUSTICE BURKE, also specially concurring:
I agree with the majority that count III of plaintiffs’ amended complaint was improperly dismissed. My reasons for reaching this conclusion, however, are quite different from the majority.
I disagree with the majority‘s discussion of the term “arising out of patient care” and its finding that count III of plaintiff‘s third amended complaint is subject to the eight-year statute of repose period found in
malpractice statute of repose. Accordingly, I would not reach the issue concerning the tolling of that provision.
ANALYSIS
At issue in this appeal is the proper construction of
“(b) Except as provided in
Section 13-215 of this Act [735 ILCS 5/13-215] , 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 ***.”735 ILCS 5/13-212(b) (West 2002).
Construing this statute, the majority holds that “the applicability of section 13-212 turns on whether the plaintiff alleged an injury ‘arising out of patient care.‘” 227 Ill. 2d at 521. The majority then goes on to define “arising out of patient care” as “a causal connection between the patient‘s medical care and the injury.” 227 Ill. 2d at 523. The majority states that this is not a “but for” test, but that “it clearly covers any injuries that have their origin in, or are incidental to, a patient‘s medical care and treatment.” 227 Ill. 2d at 523-24.
I disagree with the majority‘s interpretation of the phrase “arising out of patient care.” By holding that an injury must be “causally connected” to the patient‘s medical care, the majority has determined that the medical care and treatment must be the cause-in-fact of the injury. This court has held, however, that in the context of a negligence claim, “cause-in-fact is ‘but for’ cause.” Price v. Philip Morris, Inc., 219 Ill. 2d 182, 269 (2005); Evans v. Shannon, 201 Ill. 2d 424, 434 (2002). Thus, the majority has, in fact, adopted a “but for” test, despite its protestations to the contrary. In light of the above, the majority‘s definition sweeps far too broadly.
The difficulties with the majority‘s definition become apparent when one tries to apply it. Consider, for example, a situation where a doctor-patient relationship exists and the doctor recommends a certain
The majority, as noted, denies that it has adopted a “but for” test and explicitly denies that cases involving a slip and fall or being hit on the head would fall within its statutory interpretation. It is important to note, however, that the majority never explains how, under the logic of its “causal connection” analysis, these cases can be excluded. In short, the majority offers no principled or reasoned means for deciding when the statutе of repose applies. What we are left with is a “but for” test that has no boundaries except for those imposed, ad hoc, by the judge attempting to apply it. The legislature could not have intended to create such a vague and overly broad test.
Further, by focusing on the term “arising out of” and not the statutory provision as a whole, the majority loses sight of the purpose and objective of the statute. In Hayes v. Mercy Hospital & Medical Center, 136 Ill. 2d 450 (1990), we explained the rationale behind the General Assembly‘s enactment of the medical malpractice statute of repose. We said:
“As previously discussed by this court (see, e.g., Anderson v. Wagner (1979), 79 Ill. 2d 295), when the General Assembly limited the time period in which a party could bring a suit for medical malpractice, it was faced with what it perceived as a medical malpractice insurance crisis. *** The legislature therefore enacted, among other provisions, an outside time limit of five years, later amended to four, in which an action could be brought against physicians and hospitals for actions arising out of patient care (Pub. Act 79-960, eff. Nov. 11, 1975; Ill. Rev. Stat. 1975, ch. 83, par. 22.1). (Mega v. Holy Cross Hospital (1986), 111 Ill. 2d 416, 427.) This definite period in which an action could be filed was viewed as necessary to prevent extended exposure of physicians and other hospital personnel to potential liability for their care and treatment of patients, thereby increasing an insurance company‘s ability to predict future liabilities. (See Anderson, 79 Ill. 2d at 307.) This increased ability to predict liability was meant to assist in reducing health-care malpractice insurance premiums.” (Emphases added.) Hayes, 136 Ill. 2d at 457-58.
Thus, it was our conclusion in Hayes that the General Assembly enacted
“[t]he action for contribution apportions the damages among the parties responsible for the original plaintiff‘s injury, and the contributor is obligated for the damages directly created by the contributor‘s negligent actions. The third-party plaintiff, therefore, is seeking from the third-party defendant thоse damages proximately caused by the negligent acts of the third-party defendant which the third-party plaintiff may be obligated to pay in the underlying suit.” Hayes, 136 Ill. 2d at 457.
Hayes makes clear that a plaintiff‘s complaint need not be framed as a medical malpractice cause of action to come within the rubric of the medical malpractice statute of repose contained in
By the same token, a cause of action will not be subject to the limitations periods set forth in
It is my view, therefore, that when deciding whether the medical malpractice statute of repose applies to a particular cause of action, the determinative question must be whether the wrongful conduct which is the basis for the claim is medical negligence, as opposed to ordinary negligence. Only by requiring the wrongful conduct to be a matter of medical negligence, i.e., medical malpractice, do we further the purpose and goals of the statute.
A good illustration of this principle is found in Cammon. The plaintiff in Cammon brought a claim for spoliation of evidence against the hospital, arguing that the loss of evidence compromised her medical negligence suit. Finding that this claim was not subject to the medical malpractice statute of repose, the appellate court held:
“The breach of duty necessary to support a medical negligence action is the defendant‘s deviation from the proper medical standard of patient care. Borowski v. Von Solbrig, 60 Ill. 2d 418, 423, 328 N.E.2d 301 (1975). The damages suffered in such an action arise out of inappropriate patient care. By contrast, a negligenсe action for spoliation of evidence is predicated upon a breach of duty to preserve evidence. Boyd v. Travelers Insurance Co., 166 Ill. 2d 188, 195, 652 N.E.2d 267 (1995). Although the plaintiff in an action alleging the negligent destruction of evidence resulting in an inability to prove a cause of action for medical negligence must prove the merits of the underlying medical negligence claim (see Boyd, 166 Ill. 2d at 197-98), the fact remains that the damages suffered by the plaintiff in such a case arise from the defendant‘s destruction of evidence, not the breach of a medical standard of patient care.” 301 Ill. App. 3d at 950.
In the case at bar, the majority does not overturn Cammon, but attempts to distinguish it, holding “[t]he injury plaintiff suffered was to her ability to prove her lawsuit, and that injury did not arise out of patient care.” 227 Ill. 2d at 521. What the majority fails to acknowledge, however, is that the Cammon plaintiff‘s spoliation-of- evidence claim would, in fact, be subject to the medical malpractice statute of repose if the majority applied its own definition of “arising out of patient care.” This is because the spoliation-of-evidence claim was causally connected to, had its “origin in,” and was “incidental to” the plaintiff‘s medical treatment. See 227 Ill. 2d at 523-24. Clearly then, contrary to the majority‘s assertions, Cammon cannot be distinguished from the present case.
By focusing on whether a claim is causally connected to medical care, the majority never considers the nature of plaintiff‘s complaint. In the case at bar, plaintiffs contend that the facts alleged in count III of the second amended complaint demonstrate that the negligence which led to Anna Marie‘s poisoning and, in turn, the alleged injuries sustained by Robert in utero, were based on Pierce‘s failure to fill containers correctly and, as such, did not arise from medical negligence associated with Dr. Mercola‘s care and treatment of Anna Marie. Plaintiffs contend, therefore, that the trial court erred when it dismissed count III of their amended complaint because the facts, viewed in a light most favorable to them, show that the claim is not one for medical negligence but, rather, a claim of ordinary negligence. Accordingly, plaintiffs maintain that count III is not subject to the medical malpractice statute of repose but, rather, to the limitations period set forth in
Recently, in Heastie v. Roberts, 226 Ill. 2d 515 (2007), this court drew a distinction between a medical negli- gence claim and an ordinary negligence claim where the allegedly negligent conduct occurred within a medical setting. In Heastie, the plaintiff was an emergency-room patient who had been restrained and moved to a secluded area because he had no apparent injury, but was drunk, disruptive and deemed a danger to himself and others. While plaintiff was restrained, a fire broke out in the area where plaintiff was being held. The origin of the fire could not be determined. However, there was some evidence that the ignition source might have been a lighter belonging to the plaintiff. Plaintiff brought a negligence action against the hospital and others, alleging, among other things, that defendants had been negligent because they failed to restrain
On appeal, the issue was whether expert medical testimony was necessary to establish the standard of care with regard to plaintiff‘s claim of negligence based on the hospital personnel‘s failure to search plaintiff for contraband prior to restraining him and placing him in seclusion. Finding that “[w]hether a hospital patient should be restrained involves the exercise of medical judgment” but “[w]hether the patient should be searched for potentially dangerous contraband before being restrained and sequestered does not” (Heastie, 226 Ill. 2d at 553), we held that “plaintiff‘s failure-to-search claim *** falls within the category of ordinary negligence” (Heastie, 226 Ill. 2d at 552) and, for that reason, expert testimony was not required. We noted, further:
“Prerestraint contraband searches are wholly unrelated to the diagnosis or treatment of a patient‘s condition. They serve no medical function of any kind. Their purpose is purely safety related, specifically, to insure that a patient who is going to be restrained and then left alone will not have access to implements which may be used to effect an escape, inflict harm on himself or others, or destroy property. Such a purpose bears on a hospital‘s administrative and management functions, not its delivery of medical care.” Heastie, 226 Ill. 2d at 553.
In Heastie, this court did not address the question of whether the medical malpractice statute of limitations and repose applied.10 But had it done so, it is clear that, using the majority‘s “causal connection” test, the plaintiff‘s claim, which was found to be an ordinary negligence claim, would be subject to the medical malpractice statute of repose. The administrative decision not to search the patient for contraband was “related to,” “incidental to,” and occurred in the course of the plaintiff‘s medical care and treatment.
What this means, then, is that a claim that is determined by this court tо be “wholly unrelated to the diagnosis or treatment of a patient‘s condition” (Heastie, 226 Ill. 2d at 553) would, nonetheless, be subject to the medical malpractice statute of repose based upon this court‘s “causal connection” test. This anomalous result illustrates the serious flaws in the majority‘s interpretation of the statute. It simply makes no sense that a claim can be found to be ordinary negligence for the purpose of deciding whether expert testimony is required, yet subject to the medical malpractice statute of repose because it is causally connected to the patient‘s treatment.
It is true that the term “medical malpractice” is not found in the language of
My conclusion that the statute of repose applies to claims involving medical negligence does not end the inquiry in this case. It must now be determined whether, under the facts alleged, the plaintiffs here are seeking recovery for medical negligence.
In the case at bar, it is undisputed that Anna Marie visited Dr. Mercola and became his patient. It is also undisputed that, after examining Anna Marie, Dr. Mercola diagnosed her condition and instituted a plan of treatment. Part of that treatment plan was the recommendation that Anna Marie take the dietary supplement L-glutamine. However, Dr. Mercola‘s recommendation of L-glutamine is not the basis for plaintiffs’ claim for damages. Plaintiffs do not allege that L-glutamine, or any other part of Dr. Mercola‘s treatment plan, caused Anna Marie any harm.
Plaintiffs’ alleged injuries resulted from Anna Marie‘s ingestion of selenium, which occurred because one of Dr. Mercola‘s nonmedical staff persons, in conjunction with Dr. Mercola‘s sale of dietary supplements, improperly filled a container marked “L-glutamine” with selenium. Selenium was not the substance Dr. Mercola recommended to Anna Marie. The container of selenium that Anna Marie purchased was just one of several improperly filled containers which were sold in conjunction with Dr. Mercola‘s supplement business. It was not prepared specifically for Anna Marie as part of her treatment.
Based on these facts, I would conclude that the al- leged wrongful act is not an act of medical negligence but, rather, ordinary negligence—the failure to use due care in performing the ministerial task of filling containers with a vitamin supplement. Unquestionably, had Anna Marie taken L-glutamine and suffered injury as a result, her claim would have been one seeking recovery for medical negligence and, as such, would have been subject to the statute of repose. But that is not what happened here.
This case is distinguishable from Stiffler because, here, the facts indicate that Dr. Mercola undertook an activity that was not part of his patient‘s medical treatment—he engaged in the sale of dietary supplements. The fact that his customers were almost exclusively his patients does not convert this business enterprise into patient care. Moreover, it was in the course of that business enterprise that Dr. Mercola, through his agent Pierce, placed containers of an improperly labeled substance into the stream of commerce. Anna Marie purchased one of those improperly labeled containers and, as a result, ingested selenium, a substance that was not recommended by Dr. Mercola and which allegedly caused plaintiffs’ injuries. The improperly labeled supplement was not given to plaintiff as part of her treatment but, instead, was purchased by Anna Marie in the doctor‘s reception area, where it might have been purchased by anyone, patients and nonpatients alike. In fact, others did purchase similarly mislabeled containers. Based on these alleged facts, I would conclude that the basis of Dr. Mercola‘s liability was not his medical negligence in the care and treatment of his patient, Anna Marie but, instead, errors and omissions associated with his sale of supplements—an enterprise that was separate from his practice of medicine.
In sum, I would find that count III of plaintiff‘s amended complaint did not set forth a claim of medical negligence and, as a result, is not subject to the medical malpractice statute of repose found in
JUSTICE GARMAN, dissenting:
I agree with the majority that plaintiffs in this case alleged an injury arising out of patient care. Accordingly, I agree with the majority‘s discussion of the term “arising out of patient care” and its finding that plaintiffs’ complaint is subject to the eight-year statute of repose period found in
The appellate court found that because Robert‘s cause of action accrued when he was born, and because he was not under a disability other than minority at that time, the statute of repose was not tolled. 227 Ill. 2d at 538. According to the appellate court, the repose period ended eight years after the injury occurred. 227 Ill. 2d at 539.11 As a result, count III of plaintiffs’ complaint was not timely filed. 227 Ill. 2d at 539. The majority disagrees
with this analysis, finding that the word “accrued,” as used in
Analyzing the term “accrued” for the purposes of
I believe that the plain language of this statute is unambiguous. As the majority acknowledges, this is a statute of repose and statutes of repose extinguish causes of action after a fixed period of time after a specified event occurs. 227 Ill. 2d at 545. In this case, the repose period provided in
The majority acknowledges, however, that this court has already spoken to the purpose behind the General Assembly‘s enactment of
While it is true that it is the public policy of this state that courts carefully guard the rights of minors, the plain language of this statute indicates an intent to supersede that policy in limited circumstances. I believe this is one such circumstance. The tolling provision here,
By invoking the public policy that courts need carefully guard the rights of minors, the majority renders meaningless the provision that
It is my opinion, then, that the plain language of this statute clearly bars Robert‘s suit. While this view may seem harsh, it is supported by the plain language of the statute and consistent with the purpose behind the statute‘s enactment. See, e.g., Anderson v. Wagner, 79 Ill. 2d 295, 312 (1979) (holding that while statutes which bar causes of action before they are even discovered may seem harsh, “the reasonableness of the statute must be judged in light of the circumstances confronting the legislature and the end which it sought to accomplish“). When the plain language of a statute is clear, it is for the legislature, not the courts, to remedy any perceived shortcomings. See Ultsch v. Illinois Municipal Retirement Fund, 226 Ill. 2d 169, 184 (2007) (“There is no rule of statutory construction that authorizes a court to declare that the legislature did not mean what the plain language of the statute says“); Big Sky Excavating, Inc. v. Illinois Bell Telephone Co., 217 Ill. 2d 221, 240 (2005) (“Whether a statute is wise or whether it is the best means to achieve the desired result are matters left to the legislature, not the courts“); Bridgestone/Firestone, Inc. v. Aldridge, 179 Ill. 2d 141, 156-57 (1997).
I think it is important to note that this is not a situation where children injured in utero are barred from bringing suit simply by virtue of that fact. Nor even is this a situation where the time period within which such children can bring suit is severely curtailed. At the very least, a child injured in utero will still have seven years and three months to bring suit after birth. Indeed, in this case, while Robert could not have brought suit while in utero, he still had over seven years within which to bring suit after his birth.