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04/16/2008 SUPREME COURT SPEAKS TWICE ON STATUTE OF REPOSE By: David Slawkowski, J.D. On December 28, 2007, the Illinois Supreme Court filed opinions in two appeals dealing with the interpretation of the medical malpractice Statute of Repose. In the first opinion, Brucker v. Mercola, interpreted the provision in the Statute of Repose, 735 ILCS 5/13-212(b), that the repose statute applies to claims "arising out of patient care." Anna Brucker went to Mercola's office on May 2, 1995, in order to purchase a nutritional supplement L-glutamine prescribed by Mercola. Because his practice involved nutrition more than traditional medicine, he kept some supplements which he frequently prescribed in his office, and sold them to his patients at a lower proce than could be obtained in a health food store. He offered this service to his patients rather than as a general retailer. In Ms. Brucker's case, Dr. Mercola's receptionist mistakenly filled some bottles with selenium rather than the intended substance. Brucker took the selenium, which had been provided far in excess of the safe dose, and became ill. Anna timely filed suit for her own alleged injuries, and in December 2003 attempted to add her son Robert, who had been born on January 5, 1996, as a plaintiff. Defendants moved to dismiss because Robert's action was filed almost 7 months after the expiration of the 8 year statute of repose. Plaintiff opposed the motion on the grounds that providing a nutritional supplement was based upon ordinary negligence and not malpractice, and so was not "an injury arising out of patient care." The trial court disagreed and dismissed the minor's claim. The Court rejected reliance upon the lines of cases interpreting whether a complaint must be supported by a health professional's report because it contained a claim brought for "medical, hospital, or other healing art malpractice," as required by section 2-622. Instead, it relied upon Hayes v. Mercy Hospital & Medical Center, 136 Ill. 2d 450 (1990), in which the court had concluded that the statute must be read to limit a health care provider's exposure to liability arising out of patient case under all theories of liability. Chief Justice Thomas, writing for himself and three others, reasoned that not all cases arising out of patient care were based upon malpractice, but were still subject to the statute of repose. He cited as examples lawsuits arising out of the release of confidential information in Miller v. Tobin, 186 Ill. App. 3d 175 (1989), a consumer fraud action alleging that a doctor fraudulently convinced a patient to undergo cataract surgery in Walsh v. Barry-Harlem Corp. 272 Ill. App. 3d 418 (1995), and a product liability action arising out of an implanted prosthetic device in Stiffler v. Lutheran General Hospital, 965 F. 2d 137 (7th Cir. 1992). While indicating that the phrase "arising out of patient care" is to be given a broad interpretation, the Chief Justice specifically disavowed the intent of equating it with "but for" causation. (Two Justices found this distinction unconvincing and wrote special concurrences.) Although giving a broad interpretation to "arising out of patient care," the Supreme Court concluded that Robert's case was not time barred. Plaintiffs had also advanced a second theory in opposing the defense motions, that Robert's fetal existence from the time that his mother took the selenium until his birth constituted a disability other than minority which tolled the running of the repose period until his birth. The Court concluded that it was: Repugnant to basic notions of fundamental fairness... to hold that the clock is ticking on someone's right to file a suit during a period in which the law forbids that person from filing suit. We ...will definitely not do so here where the rights of a minor to seek redress for his injuries are at stake.
According, the majority ruled that the statute of repose did not begin to run on Robert's claim until his birth. In the second case, Orlak v. Loyola University Health System, Plaintiff underwent a blood transfusion in April or May of 1989 as part of her treatment for injuries she sustained in an auto accident. The consent form signed on her behalf by her mother disclosed that there was no known test for the presence of viral hepatitis in blood, and that transfusion could result in viral hepatitis or other reactions. In 1990 Loyola advised Orlak to be tested for HIV. She thereafter assumed she was safe from transfusion borne illnesses. In 2000 Loyola wrote to Plaintiff and advised her to be tested for hepatitis C (HCV), for which she tested positive. She sued, with separate counts alleging constructive fraud, medical negligence, battery, and ordinary negligence. Loyola moved to dismiss based upon the statute of repose. The trial court dismissed and the appellate court affirmed. First, the court reasoned that despite Plaintiff's claim that the alleged negligent or fraudulent acts took place years after any active medical treatment, her claims still arose out of patient care, and that it was the express purpose behind the enactment of the statute to reduce the cost of malpractice insurance and to assured its continued availability. Thus the intent of the act was to shorten the long tail of liability. The opinion next dealt with Orlak's claim that Loyola had fraudulently concealed the grounds for her cause of action. The court explained that concealment within the meaning of the Act : "Must consist of affirmative acts or representations calculated to lull or induce a claimant into delaying filing her claim, or to prevent a claimant from discovering her claim. Mere silence on the part of the defendant is insufficient.(citation omitted) A Plaintiff must plead and prove that the defendant made representations or performed acts which were known to be false, with the intent to deceive the plaintiff, and upon which the plaintiff detrimentally relied."
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