SIXTH DIVISION 

March 3, 2006 

No. 1-05-0881 

ANNA MARIE BRUCKER and JOHN BRUCKER, ) Appeal from the 

Indiv. and as Parents and Next Friends of ) Circuit Court of 

ROBERT GRANT BRUCKER, a Minor, ) Cook County. 

) 

Plaintiffs-Appellants, ) 

) 

v. ) No. 02 L 11973 

) 

JOSEPH MERCOLA, BARBARA PIERCE, and ) 

JOSEPH M. MERCOLA, D.O., S.C., a Corporation, ) Honorable 

) Diane Joan Larsen, 

Defendants-Appellees. ) Judge Presiding. 

JUSTICE FITZGERALD SMITH delivered the opinion of the court: 

Plaintiffs Anna Marie and John Brucker and their son Robert appeal from the trial 

court's order dismissing count III of their second amended complaint against defendants 

Dr. Joseph Mercola, his medical practice, and his employee Barbara Pierce. On 

appeal, plaintiffs contend that count III alleged ordinary negligence and, thus, was not 

subject to the eight-year statute of repose for minors' medical malpractice actions. In 

the alternative, plaintiffs contend that count III was subject to the medical malpractice 

tolling provision because Robert's status as a fetus at the time of the injury constituted a 

legal disability. For the reasons that follow, we affirm the judgment of the trial court. 

I. BACKGROUND 

On May 2, 1995, Anna Marie Brucker went to the office of Dr. Mercola for an 

allergy consultation. Dr. Mercola was aware that Mrs. Brucker was pregnant and 

recommended that she use L-glutamine and other supplements to treat her allergies. L-
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glutamine was available without a prescription at nutrition stores. Dr. Mercola 

purchased L-glutamine powder in bulk quantities and repackaged it into smaller 

containers, which he sold at his office. After Dr. Mercola replenished his supply of Lglutamine, Mrs. Brucker returned to his office on or about May 25, 1995, and purchased 

a bottle that was labeled as containing L-glutamine. However, Mrs. Brucker actually 

received a bottle that Barbara Pierce, a member of Dr. Mercola's support staff, had 

erroneously filled with sodium selenite. Pierce had no medical training and served Dr. 

Mercola in an administrative capacity only. As a result of ingesting the selenium in a 

toxic dosage, Mrs. Brucker and her fetus allegedly suffered injuries. 

On January 5, 1996, Mrs. Brucker gave birth to Robert Brucker. 

On May 27, 1997, Mr. and Mrs. Brucker filed a two-count complaint against 

defendants sounding in medical malpractice, alleging (1) defendants breached the duty 

to exercise reasonable care in treating Mrs. Brucker; and (2) loss of consortium. The 

complaint was supported by a physician's report pursuant to section 2-622 of the Code 

of Civil Procedure (Code) (735 ILCS 5/2-622 (West 1996)). The Bruckers voluntarily 

dismissed the case in September 2001. 

On September 20, 2002, Mr. and Mrs. Brucker refiled the case against the same 

defendants and alleged the same acts of negligence and damages. 

On December 22, 2003, the Bruckers amended their complaint, adding a claim 

on behalf of their son, Robert. Count III of the amended complaint alleged that Robert, 

born in January 1996, suffered various injuries as a result of his mother's May 1995 

ingestion of the toxic dosage of selenium dispensed from Dr. Mercola's office. Plaintiffs 
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alleged that defendants breached the duty to exercise reasonable care by medical 

personnel in treating Mrs. Brucker and Robert by committing the following negligent acts 

or omissions: 

(a) improperly distributed selenium to Mrs. Brucker; 

(b) failed to maintain proper control measures in distributing 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 Mrs. Brucker in a toxic dosage; 

(e) failed to use proper and adequate measures to ensure that 

proper dietary supplements and prescriptions were being dispensed to 

patients like Mrs. Brucker; and 

(f) were otherwise careless and negligent. 

With the amended complaint, plaintiffs filed a medical report and attorney's affidavit in 

compliance with section 2-622 of the Code. 

Defendants filed a motion under section 2-619(5) of the Code (735 ILCS 5/2-

619(5) (West 2004)) to dismiss count III of the amended complaint with prejudice as 

barred by the statute of repose for medical malpractice claims. Specifically, defendants 

argued count III was filed more than eight years after the May 25, 1995 act that 

allegedly caused injury to Robert. The trial court denied defendants' motion to dismiss 

count III, ruling that plaintiffs' cause of action sounded in common-law ordinary 
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negligence . Further, the trial court ruled that even if the action was considered a 

medical negligence claim, Robert's status as a fetus constituted a disability other than 

minority so as to avoid the eight-year statute of repose. 

Defendants filed a motion to reconsider the denial of their motion to dismiss. 

After the submission of briefs and presentation of oral argument, the trial court granted 

defendants' motion to reconsider and dismissed count III of plaintiffs' amended 

complaint as time-barred. The trial court found that Robert's claim arose out of patient 

care and, thus, was subject to the eight-year repose provision for minors' claims of 

medical negligence. The trial court also found that Robert's status as a fetus at the time 

the injury occurred did not toll the period of limitations for filing his claim. 

Thereafter, plaintiffs filed their second amended complaint, adding to count III the 

allegation that Robert was a fetus from May 25, 1995 to January 5, 1996 and, thus, was 

disabled and totally without understanding or capacity to make or communicate 

decisions regarding his person. The parties reasserted their arguments concerning 

defendants' motion to dismiss, and the trial court dismissed count III of plaintiffs' second 

amended complaint. The trial court also found no just reason to delay enforcement of 

or appeal from that order. 

II. ANALYSIS 

The issues on appeal are (1) whether the eight-year medical malpractice statute 

of repose for minors or the two-year personal injury statute of limitations applied to 

count III of plaintiffs' second amended complaint; and (2) whether the legal disability 

tolling provision of the medical malpractice statute applied to count III. 
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We review the trial court's ruling on the section 2-619 motion to dismiss based on 

the statute of repose de novo. O'Brien v. Scovil, 332 Ill. App. 3d 1088, 1090 (2002). 

"Dismissal pursuant to section 2-619 is warranted only where it clearly is apparent that 

no set of facts can be proved that would entitle a plaintiff to recover." Thornton v. Shah, 

333 Ill. App. 3d 1011, 1018 (2002). "Because all properly pleaded facts are accepted as 

true, a reviewing court is concerned only with the question of law presented by the 

pleadings." Thornton, 333 Ill. App. 3d at 1019. "In ruling on a section 2-619 motion to 

dismiss, a court may consider pleadings, affidavits and deposition evidence." Thornton, 

333 Ill. App. 3d at 1019. 

1. Medical Malpractice or Personal Injury 

Plaintiffs contend the personal injury statute of limitations is controlling in this 

case. An action for personal injury must be filed within "2 years next after the cause of 

action accrued ***." 735 ILCS 5/13-202 (West 2002). If the plaintiff is a minor or is 

under a legal disability, "he or she may bring the action within 2 years after the person 

attains the age of 18 years, or the disability is removed." 735 ILCS 5/13-211 (West 

2002). 

Defendants, however, contend the medical malpractice repose provision for 

minors is controlling in this case. Section 13-212 of the Code provides, in relevant part, 

as follows: 

"Physician or hospital. (a) *** no action for damages for injury or 

death against any physician, dentist, registered nurse or hospital duly 

licensed under the laws of the State, whether based upon tort, or breach 
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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 death for which damages are sought in the 

action, whichever of such date 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) *** no action for damages for injury or death against any 

physician, dentist, registered nurse or hospital duly licensed under the 

laws of the 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. 

 *** 

(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." (Emphasis added.) 735 
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ILCS 5/13-212 (West 2002). 

We find the trial court correctly applied the medical malpractice repose provision 

contained in section 13-212(b) of the Code to plaintiffs' claim for injury to Robert in 

utero. Although the plaintiffs alleged, inter alia, that Robert's injuries resulted from 

defendants' negligent storage, packaging and labeling of nonprescription supplements, 

the fact remains that the damages suffered by Robert arose from Dr. Mercola's care 

and treatment of his patient, Mrs. Brucker. The pertinent issue is not whether plaintiffs' 

suit alleged medical malpractice, but whether the alleged injuries arose out of patient 

care. 

Mrs. Brucker sought treatment for her allergies from Dr. Mercola. Dr. Mercola 

examined her and recommended that she take L-glutamin, a nonprescription 

supplement that Dr. Mercola's staff repackaged from bulk powder into smaller 

containers. Mrs. Brucker purchased a bottle labeled L-glutamin from Dr. Mercola's 

office but became ill upon ingesting a toxic amount of another substance. The damages 

sought by plaintiffs in count III of their amended complaint arose as a consequence of 

defendants' alleged breach of the duty to use the skill and care ordinarily used by 

reasonably well-qualified medical personnel in their care and treatment of Mrs. Brucker 

and Robert. 

The two-year statute of limitations period found in section 13-212(a) and the 

eight-year repose period found in section 13-212(b) are applicable to actions on behalf 

of minors seeking "damages for injury *** against any physician, *** whether based 

upon tort, or breach of contract, or otherwise, arising out of patient care ***." (Emphasis 
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added.) 735 ILCS 5/13-212(a), (b) (West 2002). "The phrase 'arising out of' is broad 

and generally means 'originating from,' 'growing out of,' or 'flowing from.' " Miller v. 

Tobin, 186 Ill. App. 3d 175, 177 (1989), quoting 6 C.J.S. Arise 525, 526 (1975). 

The law is clear that " 'all actions for injury or death predicated upon the alleged 

negligence of a physician are governed by section 13-212.' " Durham v. Michael Reese 

Hospital Foundation, 254 Ill. App. 3d 492, 496-97 (1993), quoting Malinowski v. 

Mullangi, 223 Ill. App. 3d 1037, 1041 (1991). This court has reaffirmed the liberal 

application of section 13-212 in a wide array of decisions. Thornton, 333 Ill. App. 3d at 

1018-20 (section 13-212 limitations barred parents' breach of contract claim against 

HMO for damages associated with the death of their child in utero); Walsh v. BarryHarlem Corp., 272 Ill. App. 3d 418, 422-24 (1995) (section 13-212 limitations barred 

consumer fraud claim alleging physicians intentionally misrepresented test results and 

performed unnecessary surgery on plaintiff's eyes); Durham, 254 Ill. App. 3d at 497 

(section 13-212 repose barred claim under the Wrongful Death Act alleging physician 

negligence regarding heart valve implant malfunction); Elke v. Zimmer, Inc., 231 Ill. App. 

3d 597, 600 (1992) (section 13-212 repose barred products liability action against a 

hospital for distribution or sale of alleged defective prosthesis); Ashley v. Evangelical 

Hospitals Corp., 230 Ill. App. 3d 513, 522-24 (1992) (section 13-212 repose barred 

hospital's third-party indemnity claim against doctors that was inextricably linked to the 

underlying medical malpractice claims); Miller, 186 Ill. App. 3d at 178 (section 13-212 

limitations barred claim against a psychiatrist for revealing confidential mental health 

information to the plaintiff's wife); Burgdorff v. Siqueira, 109 Ill. App. 3d 493, 496 (1982) 
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(medical malpractice repose provision barred claim against doctor alleging negligence 

and misconduct for wrongfully advising patient to seek early retirement). See also 

Hayes v. Mercy Hospital & Medical Center, 136 Ill. 2d 450, 456-58 (1990) (interpreting 

the term "or otherwise" in the medical malpractice statute of repose to include actions 

for contribution against a physician for injuries arising out of patient care). 

The cases cited by plaintiffs to support their argument that the alleged injury here 

sounds in ordinary negligence are distinguishable. Specifically, in Mooney v. Graham 

Hospital Ass'n, 160 Ill. App. 3d 376, 380-81 (1987), the court determined the plaintiff's 

claim involved ordinary negligence rather than medical malpractice where the plaintiff, a 

patient recovering from surgery, alleged the hospital negligently allowed the 

accumulation of liquid on the floor which caused her to fall and sustain injuries. The 

court likened the plaintiff's status to that of a business-invitee to whom the hospital owed 

a duty to exercise ordinary and reasonable care to see that the premises were 

reasonably safe. Mooney, 160 Ill. App. 3d at 380-81. The court found the pleadings 

alleged the familiar "slip and fall" case and was not related to the plaintiff's medical 

treatment. Mooney, 160 Ill. App. 3d at 382. Unlike in Mooney, plaintiffs' allegations of 

wrongdoing here did not arise apart from Mrs. Brucker's treatment and status as a 

patient but because of that treatment and status. See Walsh, 272 Ill. App. 3d at 424. 

Similarly, in Lyon v. Hasbro Industries, Inc., 156 Ill. App. 3d 649, 655 (1987), the 

court determined that an ambulance service's failure to adequately equip the ambulance 

with life-support equipment fell within the definition of medical malpractice, but the 

failure to maintain and service the ambulance as a vehicle did not involve medical 
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judgment and, thus, was not medical malpractice. Like the Lyon defendant's failure to 

equip the ambulance and unlike its failure to service the vehicle, the Bruckers' claim that 

defendants, as part of their medical practice, improperly stored, packaged and 

dispensed recommended supplements alleged misconduct that was inextricable from 

the defendants' diagnosis and treatment of Mrs. Brucker. See Walsh, 272 Ill. App. 3d at 

425. 

Plaintiffs argue that Dr. Mercola chose to be a vendor of supplements and owed 

a duty of ordinary care to customers purchasing supplements, whether those customers 

were his patients or not. We recognize that a physician or medical practice could 

undertake certain activities that are not part of a patient's medical treatment. 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 Lglutamine, 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. 

2. Tolling Provision of Section 13-212(c) 

Plaintiffs have a backup argument: the medical malpractice claim stated in count 

III is not time-barred because the provision regarding legal disabilities in section 13-

212(c) tolled the repose provision for minors in section 13-212(b). Whereas the section 

13-212(b) repose provision required Robert to bring his cause of action no more than 
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eight years after the date the alleged injury occurred, section 13-212(c) stops the 

limitations period from running if Robert was under a legal disability other than minority 

at the time the cause of action accrued. 735 ILCS 5/13-212(b), (c) (West 2002). 

Plaintiffs argue that Robert was a fetus in May 1995 and, thus, under a legal disability at 

the time the injury occurred, i.e., when his mother ingested a toxic dose of the 

mislabeled supplement. Plaintiffs contend the eight-year repose period was tolled until 

Robert's January 1996 birth, which was when his legal disability was removed. Plaintiffs 

argue that count III was timely raised in plaintiffs' December 2003 amended complaint 

because it was filed within eight years of Robert's January 1996 birth. We disagree. 

The flaw in plaintiffs' argument is that the distinction between the date Robert's alleged 

injury occurred and the time his cause of action accrued is not as malleable as plaintiffs 

wish. 

We are called upon to interpret the medical malpractice period of limitations 

contained in section 13-212 of the Code. The law governing statutory construction is 

clear. 

"The primary rule of statutory construction is to ascertain and give effect to 

the intent of the legislature. [Citations.] The best evidence of the 

legislature's intent is the language of the statute itself. [Citation.] The 

court must evaluate the language of the statute as a whole, considering 

each part or section in connection with every other part or section. 

[Citations.] Where the legislature's intent can be ascertained from the 

plain language of the statute, that intent must prevail and will be given 
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effect without resort to other aids for construction. [Citation.] On appeal, 

an issue of statutory construction is subject to de novo review. [Citation.]" 

 Bruso v. Alexian Brothers Hospital, 178 Ill. 2d 445, 451-52 (1997). 

In medical malpractice cases in which the discovery rule is applied, a cause of 

action accrues when the plaintiff knows or reasonably should know of the injury and 

also knows or reasonably should know that it was wrongfully caused. 735 ILCS 5/13-

212(a) (West 2002). The discovery rule gives rise to a "long tail" of liability. Lowe v. 

Ford Motor Co., 313 Ill. App. 3d 418 (2000). The purpose of a statute of repose is to 

impose a cap on the applicability of the discovery rule so that the outer limit terminates 

the possibility of liability after a definite period of time, regardless of a potential plaintiff's 

lack of knowledge of a cause of action. Cammon v. West Suburban Hospital Medical 

Center, 301 Ill. App. 3d 939 (1998). However, where a plaintiff in a medical malpractice 

action is under a legal disability such as mental incompetency at the time the cause of 

action accrued, the plaintiff's action is subject to the tolling provision of section 13-

212(c) and not the four-year repose period of section 13-212(a) for adults or the eightyear repose period of section 13-212(b) for minors. 735 ILCS 13-212 (West 2002); see 

Bruso, 178 Ill. 2d at 461. 

Plaintiffs argue that Robert's condition as a fetus at the time the alleged injury 

occurred was a legal disability sufficient to toll the eight-year repose period of section 

13-212(b). A person under a legal disability is defined as a person who has some 

disability or incapacity that prevents him from being fully able to manage his or her 

person or estate. 5 ILCS 70/1.06 (West 2002). A person need not be adjudicated 
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disabled to have a legal disability, but he must have some argument that his disability is 

one contemplated by the legislature. Parks v. Kownacki, 193 Ill. 2d 164, 178-79 (2000) 

("The inability to pursue a legal remedy does not, standing alone, fall into any 

recognized category of legal disability"). 

We need not address the issue of whether a fetus falls within the definition of a 

person under a legal disability. The dispositive issue here is whether Robert was under 

a legal disability other than minority at the time his cause of action accrued. We 

conclude that he was not. 

Our supreme court has recognized a legally cognizable cause of action for the 

injury to both a woman and her subsequently born child when the tortious act of another 

toward the woman harms the fetus. Stallman v. Youngquist, 125 Ill. 2d 267, 275 (1988) 

(noting that the injuries to the fetus become apparent at its birth); see also Renslow v. 

Mennonite Hospital, 67 Ill. 2d 348, 357 (1977) ("there is a right to be born free from 

prenatal injuries foreseeably caused by a breach of duty to the child's mother"). In 

Simmons v. Weisenthal, 29 Pa. D. & C.2d 54, 56-57 (Pa. Com. Pl. 1962), the court 

discussed the influential Illinois dissenting opinion of Mr. Justice Boggs in Allaire v. St. 

Luke's Hospital, 184 Ill. 359, 368 (1900) (Boggs, J., dissenting), which suggested that, 

although liability for a prenatal injury is created when an unborn child is injured by the 

wanton and negligent act of another, liability attaches on fulfilment of the implied 

condition that the child be born alive. The influence of Justice Boggs' dissent on the 

development of the now-recognized right of a child to recover for prenatal injuries is 

apparent in Amann v. Faidy, 415 Ill. 422 (1953), which reversed the Allaire majority 
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decision denying recovery. Because the fetus's recognized legal right to begin life with 

a sound mind and body is assertable after birth, we--like the Simmons court--conclude 

that a claim for prenatal injury on behalf of a fetus accrues when the fetus is born. See 

Simmons, 29 Pa. D. & C.2d at 58. 

Robert was not a fetus when his cause of action accrued because his cause of 

action accrued when he was born. The plain language of subsection (c) relates to a 

person who "is, at the time the cause of action accrued, under a legal disability other 

than being under the age of 18 years" and provides that the limitations period "does not 

begin to run until the disability is removed." (Emphasis added.) 735 ILCS 5/13-212(c) 

(West 2002); Clark v. Han, 272 Ill. App. 3d 981, 987 (1995). Because Robert was 

merely a minor when his cause of action accrued, the tolling provision of section 13-

212(c) is not applicable to his cause of action. The eight-year repose provision for 

minors in section 13-212(b) controls here, and count III is time-barred because it was 

filed more than eight years after Robert's alleged injury occurred. 

Plaintiffs cite Kararo v. Ruiz, 201 Ill. App. 3d 61 (3d Dist. 1990), and urge us to 

disregard the plain language of section 13-212, which clearly states that the tolling 

provision applies only if the plaintiff was legally disabled when the cause of action 

accrued. In Kararo, the court held that the eight-year repose period for minors applied 

to an injury that occurred when the plaintiff was a minor but was discovered--i.e., 

accrued--after the plaintiff reached majority. Kararo, 201 Ill. App. 3d at 64. The Kararo

plaintiff was born on January 13, 1968, and alleged that the defendant negligently 

misdiagnosed and treated her until November 16, 1984, when she was 16 years old. 
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She turned 18 on January 13, 1986, and alleged that she discovered her potential 

cause of action on July 17, 1987, when she was 19. Kararo, 201 Ill. App. 3d at 62. 

Because she did not file her complaint until January 12, 1989, she would be barred if 

the adults' four-year repose period of section 13-212(a) applied, but she would have a 

cause of action if the minors' eight-year repose period of section 13-212(b) applied. The 

defendant argued that the shorter repose period for adults controlled because the 

plaintiff's cause of action accrued after she had reached the age of majority. Kararo, 

201 Ill. App. 3d at 64. Without ruling on that point, the Kararo court construed the 

statute liberally to preserve the minor's right to a day in court and held, contrary to the 

plain language of the statute, that the applicable period of repose is to be determined by 

the time when the injury occurred. Kararo, 201 Ill. App. 3d at 64. 

The Kararo court acknowledged that the 1987 amendment to section 13-212 

changed a plaintiff's eligibility for the eight-year minors' repose provision. Kararo, 201 

Ill. App. 3d at 63. Specifically, prior to the amendment, the eight-year repose period 

applied if the plaintiff was under the age of 18 years at the time the cause of action 

occurred (Ill. Rev. Stat. 1985, ch. 110, par. 13-212); after the amendment, the eight-year 

repose period applied if the plaintiff was under the age of 18 at the time the cause of 

action accrued (Ill. Rev. Stat. 1987, ch. 110, par. 13-212). Nevertheless, the Kararo

court ignored the tenet of statutory construction proscribing the enlargement by judicial 

action of a statute's objectives beyond its legitimately intended scope. The Kararo

court's holding cannot be reconciled with the plain language of section 13-212 after the 

1987 amendment. Accordingly, we will not follow and apply Kararo in the instant case. 
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Finally, plaintiffs argue that the eight-year repose period, which runs from the 

date of the occurrence, operates unfairly because it reduces Robert's filing time by 

almost nine months whereas born children get the benefit of the full eight years. We 

note, however, that the medical malpractice repose provisions operate with similar 

harsh consequences on adults who suffer from undiscovered malpractice 

consequences and minors who were 17 years old when their action accrued but must 

file before their twenty-second birthday. The legislature has determined that such 

unfairness is outweighed by the benefits to the public health and well-being from the 

restriction of malpractice litigation. See Ferguson v. McKenzie, 202 Ill. 2d 304, 311 

(2001); Goodman v. Harbor Market, Ltd., 278 Ill. App. 3d 684, 691 (1995). We are 

bound by that determination. 

Accordingly, we affirm the judgment of the circuit court. 

Affirmed. 

McNULTY, P.J., and O'MALLEY, J., concur.