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Last Updated 06/01/2006 FIRST DISTRICT AFFIRMS BROAD APPLICABILITY OF MEDICAL MALPRACTICE STATUTE OF REPOSE AND APPLIES IT TO BAR CAUSE OF ACTION FOR IN UTERO INJURY TO A FETUS WHERE SUIT WAS BROUGHT WITHIN EIGHT YEARS OF BIRTH BUT MORE THAN EIGHT YEARS AFTER OCCURRENCE AT ISSUE. By: Scott C. Stevens, J.D. The Illinois Appellate Court for the First District recently affirmed the applicability of the Medical Malpractice Statute of Repose in all cases against health care providers such as physicians, registered nurses and hospitals which “arise out of” patient care, and further ruled that a plaintiff’s status as a fetus when the injury occurs is not a “legal disability” which will toll the eight-year repose period applicable to minors. Brucker v. Mercola, Appeal No. 1-05-0881, filed March 3, 2006. On May 2, 1995, Plaintiff Anna Marie Brucker saw Dr. Joseph Mercola for treatment of her allergies. According to the complaint, Dr. Mercola knew that Ms. Brucker was pregnant and recommended she use non-prescription supplements such as L-glutamine to treat her allergies. Although the supplement is readily available at nutrition stores, Dr. Mercola bought bulk amounts of L-glutamine, as well as various other supplements, and then repackaged the supplements in smaller amounts for patients who wished to buy them at his office. Ms. Brucker was one such customer, but when she purchased what she thought was L-glutamine on May 25, 1995, she received instead sodium selenite (also known as selenium), an antioxidant nutritional supplement, due to a labeling error by one of Dr. Mercola’s employees. Almost nine months later, on January 5, 1996, Ms. Brucker gave birth to a son, Robert. Ms. Brucker and her husband timely sued Dr. Mercola to recover for their own injuries arising out of Ms. Brucker’s improper ingestion of selenium. They did not assert any claim on Robert’s behalf, however, until an amended count filed on December 22, 2003 – within eight years of Robert’s birth but more than eight years after Ms. Brucker received the supplement. They alleged that Robert was injured as a result of Dr. Mercola’s negligent storage, packaging and labeling of nutritional supplements. The circuit court dismissed Robert’s claim as barred by the eight-year repose period applicable to minors’ medical malpractice claims, 735 ILCS 5/13-212(b). Plaintiffs appealed that ruling, claiming that: (1) the Medical Malpractice Statute of Repose did not apply because the complaint’s allegations of improperly storing, packaging and labeling supplements sounded in ordinary negligence instead of medical malpractice; and (2) even if the repose period did apply, Robert’s status as a fetus at the time of the allegedly tortious act constituted a “legal disability” which tolled the running of the Statute of Repose pursuant to 735 ILCS 5/13-212(c) (“Subsection C”) until his birth. The appellate court first considered whether the Medical Malpractice Statute of Repose applied at all to Robert’s claim. Plaintiffs argued that the two-year personal injury statute of limitations (735 ILCS 5/13-202) should apply and would not bar Robert’s action until two years after his eighteenth birthday. They claimed that their allegations of improper storage, packaging and labeling of the supplements sounded in ordinary negligence, not medical malpractice. They asserted that Dr. Mercola was acting as a “vendor” of supplements, not a doctor, and therefore owed Robert a duty of ordinary care to properly label, package and distribute them. The Court found that the applicable test for determining whether the Medical Malpractice Statute of Repose applied was not whether the complaint stated a traditional claim for “medical malpractice,” but whether the suit was against a healthcare provider and “arose out of” patient care. Recalling Dr. Mercola’s examination of Ms. Brucker pursuant to her complaints of allergies and his recommendation that she take L-glutamine as part of her treatment, the Court held that Robert’s claim “did not arise apart from Ms. Brucker’s treatment and status as a patient but because of that treatment and status.” Accordingly, it found that the improper dispensing of selenium “arose out of” patient care and that the statutory repose period therefore applied. The Court reasoned that its finding was consistent with prior rulings which liberally applied the repose period to various causes of action, including: (1) a breach of contract case against an HMO predicated on the in utero death of a child; (2) a consumer fraud claim against physicians who allegedly misinterpreted test results and performed unnecessary eye surgeries; and (3) a product liability action against a hospital for distributing and selling allegedly defective prostheses. The second issue to be resolved on appeal was whether Robert’s status as a fetus constituted a “legal disability” which tolled the running of the eight-year repose period applicable to minors until he was born. Under Subsection C of the statute, if a plaintiff is “under a legal disability other than being under the age of 18 years” when the cause of action accrues, the repose period does not begin to run until the disability is removed. The plaintiffs argued that because Robert was a fetus at the time of the occurrence, he had “some disability or incapacity that prevent[ed] him from being fully able to manage his or her person or estate,” and therefore suffered from a legal disability which tolled the statute. The Court noted at the outset that the mere inability to pursue a legal remedy does not, standing alone, automatically demonstrate the existence of a legal disability or toll the applicable repose period. The Court found that the dispositive issue was whether Robert was under a legal disability other than that of minority at the time his cause of action accrued, not at the time the tortious act occurred. Since 1953, Illinois law has held that an unborn child’s cause of action accrues at the time he is born alive. Therefore, at the time he was born, the only disability Robert suffered from was minority, which Subsection C specifically provides does not toll the statute. Therefore, the Court ruled, the statute was not tolled and Robert’s cause of action was time-barred as having been filed more than eight years after the allegedly tortious act of improperly dispensing selenium to his mother occurred. Plaintiffs contended that, interpreted in this manner, the Statute of Repose was unfair to fetuses because it deprived them of the full eight years within which to file suit afforded to infants injured by acts occurring at or after birth. The Court was not persuaded by this argument, however, reminding plaintiffs that the statute imposes “similar harsh consequences” on adults whose injuries are not discoverable, or even in existence, within the applicable repose period, for example an adult who first develops cancer many years after childhood exposure to radiation therapy. Similarly, minors who are seventeen when the tortious act occurs do not get the full eight years to file suit, but instead must file before their twenty-second birthday. The Court held that, despite these consequences, it was bound by the legislative determination that such harshness is outweighed by the resulting benefit to the public’s health and well-being when the threat of malpractice liability is removed on a date certain. The First District’s decision in Brucker reminds attorneys defending healthcare providers that, even when the plaintiff’s allegations may seem to sound in “ordinary negligence” at first blush, if the relevant events took place in the context of the plaintiff’s “treatment and status as a patient,” the Medical Malpractice Statute of Repose applies and may be a viable defense. It also clarifies the Statute’s application when claimed injuries were suffered in utero as a result of alleged malpractice occurring prior to a minor plaintiff’s birth. On May 24, 2006, the Illinois Supreme Court allowed the plaintiffs’ petition for leave to appeal the First District’s ruling. Brucker v. Mercola, Ill. S. Ct. Docket No. 102440. -------------------------------------------------------------------------------------------------------------------- Return to Previous Page |
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