SIXTH DIVISION March 3, 2006

No. 1-05-0881 ANNA MARIE BRUCKER and JOHN BRUCKER, ) Appeal from the Indiv. and as Parents and Next Fri ends 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 deliv ered 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 t heir second amended complaint against defendants Dr. Joseph Mercola, his medical practice, and his employee Barbara Pierce. On appeal, plaintiffs contend that count III a lleged ordinary negligence and, thus, was not subject to the eight-year statute of repose fo r 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 fetu s at the time of the injury constituted a legal disability. For the reasons that follo w, 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-1-05-0881

- 2 - glutamine was available without a prescrip tion at nutrition stores. Dr. Mercola purchased L-glutamine powder in bulk quant ities 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-glut amine. However, Mrs. Brucker actually received a bottle that Barbara Pierce, a me mber 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 repor t pursuant to section 2-622 of the Code of Civil Procedure (Code) (735 ILCS 5/2-622 (W est 1996)). The Bruckers voluntarily dismissed the case in September 2001. On September 20, 2002, Mr. and Mrs. Brucke r 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 dispens ed from Dr. Mercola's office. Plaintiffs1-05-0881

- 3 - 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 contro l measures in distributing dietary supplements and prescriptions; (c) failed to follow reasonable and necessary precautions to determine that proper dietary s upplements 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 prescr iptions 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 tr ial court denied defendants' motion to dismiss count III, ruling that plaintiffs' cause of action sounded in common-law ordinary1-05-0881

- 4 - 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 presentati on 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 t hat Robert's status as a fetus at the time the injury occurred did not toll the peri od of limitations for filing his claim. Thereafter, plaintiffs filed their se cond 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 parti es reasserted their arguments concerning defendants' motion to dismiss, and the trial cour t 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 compla int; and (2) whether the legal disability tolling provision of the medical malp ractice statute applied to count III.1-05-0881

- 5 - 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 warr anted 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, a ffidavits and deposition evidence." Thornton , 333 Ill. App. 3d at 1019. 1. Medical Malpractice or Personal Injury Plaintiffs contend the personal injury statut e 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 bri ng the action within 2 years after the person attains the age of 18 years, or the disabilit y is removed." 735 ILCS 5/13-211 (West 2002). Defendants, however, contend the medica l 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, r egistered nurse or hospital duly licensed under the laws of the State, whether based upon tort, or breach1-05-0881

- 6 - 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 hos pital 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 ac tion was, at the time the cause of action accrued, under the age of 18 year s; 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, t hen the period of limitations does not begin to run until the disability is removed." (Emphasis added.) 7351-05-0881

- 7 - 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 fo r injury to Robert in

utero . Although the plaintiffs alleged, inter alia , that Robert's injuries resulted from defendants' negligent storage, packaging and labe ling 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. T he 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 alle rgies from Dr. Mercola. Dr. Mercola

examined her and recommended that she take L-glutamin, a nonprescription supplement that Dr. Mercola's staff r epackaged from bulk powder into smaller containers. Mrs. Brucker purchased a bottl e labeled L-glutamin from Dr. Mercola's office but became ill upon ingesting a toxic am ount 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 us e 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 ***." (Emphasis1-05-0881

- 8 - 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 sect ion 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 wi de array of decisions. Thornton , 333 Ill. App. 3d at 1018-20 (section 13-212 limitations barred parent s' 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 int entionally 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 ba rred products liability action against a hospital for distribution or sale of alleged def ective 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 doc tors 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 psychiatris t for revealing confidential mental health information to the plaintiff' s wife); Burgdorff v. Siqueira , 109 Ill. App. 3d 493, 496 (1982)1-05-0881

- 9 - (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 malpra ctice statute of repose to include actions for contribution against a physician for injuri es arising out of patient care). The cases cited by plaintiffs to support their argument that the alleged injury here sounds in ordinary negligence are distinguishabl e. Specifically, in Mooney v. Graham Hospital Ass'n , 160 Ill. App. 3d 376, 380-81 (1987), t he court determined the plaintiff's claim involved ordinary negligence rather than medical malpractice where the plaintiff, a patient recovering from surgery, all eged 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 ca re 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 tr eatment 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 wit hin the definition of medi cal malpractice, but the

failure to maintain and service the ambulance as a vehicle did not involve medical1-05-0881

- 10 - judgment and, thus, was not medica l malpractice. Like the Lyon defendant's failure to equip the ambulance and unlike its failure to serv ice the vehicle, the Bruckers' claim that defendants, as part of their medical pr actice, improperly stored, packaged and dispensed recommended supplements alleged mi sconduct 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 chos e to be a vendor of supplements and owed a duty of ordinary care to customers purc hasing supplements, whet her those customers were his patients or not. We recognize t hat 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 negligenc e if they had injured a member of the general public by promoting and selling s upplements in mislabeled bottles. But that

is not this case. Dr. Mercola exami ned 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 o ffice and purchased the mislabeled bottle. The medical malpractice repose provision app lies 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 medi cal 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 than1-05-0881

- 11 - eight years after the date the alleged inju ry 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 t he eight-year repose period was tolled until Robert's January 1996 birth, which was when his l egal disability was removed. Plaintiffs argue that count III was timely raised in pl aintiffs' 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 t he 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 medi cal malpractice period of limitations contained in section 13-212 of the Code. The law governing statutory construction is

clear. "The primary rule of statutory constructi on 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 t he statute itself. [Citation.] The court must evaluate the language of the statute as a whole, considering each part or section in connection wit h 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 given1-05-0881

- 12 - effect without resort to other aids fo r 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 ri se to a "long tail" of liability. Lowe v. Ford Motor Co. , 313 Ill. App. 3d 418 (2000). The purpos e 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, wher e a plaintiff in a medical malpractice action is under a legal disability such as ment al incompetency at the time the cause of action accrued, the plaintiff's action is subj ect 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) fo r 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 disabilit y 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 (W est 2002). A person need not be adjudicated1-05-0881

- 13 - disabled to have a legal disability, but he must have some argument that his disability is one contemplated by the legisl ature. 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 dispos itive 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 bor n 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 becom e 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 breac h 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 opini on 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. T he influence of Justice Boggs' dissent on the development of the now-recognized right of a ch ild to recover for prenatal injuries is apparent in Amann v. Faidy , 415 Ill. 422 (1953), which reversed the Allaire majority1-05-0881

- 14 - 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 a ccrued, the tolling provision of section 13- 212(c) is not applicable to his cause of ac tion. 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 plaint iff 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.1-05-0881

- 15 - 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 unt il January 12, 1989, she would be barred if the adults' four-year repose period of sect ion 13-212(a) applied, but she would have a cause of action if the minors' eight-year repos e period of section 13-212(b) applied. The defendant argued that the shorter repose per iod 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 stat utory 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 t he plain language of section 13-212 after the 1987 amendment. Accordingly, we will not follow and apply Kararo in the instant case.1-05-0881

- 16 - Finally, plaintiffs argue that the eight-y ear repose period, which runs from the date of the occurrence, operates unfairly bec ause 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 malpract ice 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 litigat ion. 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 j udgment of the circuit court.

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