                       Docket No. 102440.


                             IN THE
                     SUPREME COURT
                                OF
                THE STATE OF ILLINOIS




ANNA MARIE BRUCKER et al., as Parents and Next Friends of
Robert Grant Brucker, a Minor, Appellants, v. JOSEPH M.
          MERCOLA, D.O., et al., Appellees.

                Opinion filed December 28, 2007.



    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. 210 Ill. 2d R. 315. For the reasons that follow, we
reverse the dismissal of count III of plaintiffs’ amended complaint.

                            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 could purchase them at health-food
stores. Most of the supplements were sold in prepackaged containers,
but some were ordered in bulk form and bottled by employees of Dr.
Mercola. Initially, L-glutamine was ordered in prepackaged capsule
form, but Dr. Mercola’s office began ordering it in bulk form in 1995
as a way for patients to save money. At the relevant time, Barbara
Pierce, a receptionist with no medical training, was in charge of
measuring and bottling the bulk supplements into individual bottles.
However, Dr. Mercola testified in his deposition that he took ultimate
responsibility for ensuring that the supplement bottles were filled
correctly. Dr. Mercola further explained in his deposition that,
although he would sell the supplements to a member of the general
public who requested them, he was not a general retailer of
supplements:



                                 -2-
             “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,

                                  -3-
            (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.”
Pursuant to section 2–622 of the Code of Civil Procedure (the Code)
(735 ILCS 5/2–622 (West 2006)), an attorney’s affidavit and a
physician’s report were attached to the complaint. Section 2–622
requires this procedure in all cases in which the plaintiff “seeks
damages for injuries or death by reason of medical, hospital, or other
healing art malpractice.” 735 ILCS 5/2–622(a) (West 2006). In the
physician’s report, a doctor of osteopathic medicine stated that he had
reviewed the relevant records and determined to a reasonable degree
of medical certainty that the care and treatment provided to Anna by
defendants fell below the minimum standard of care and constituted
negligence.
     Pursuant to section 2–619(a)(5) of the Code (735 ILCS
5/2–619(a)(5) (West 2006)), the defendants moved to dismiss count
III as barred by the applicable statute of repose. Defendants relied on
section 13–212(b) of the Code (735 ILCS 5/13–212(b) (West 2006)),
which provides as follows:
            “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

                                  -4-
         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 section
13–212(c) applied to their cause of action and thus their complaint
was timely filed. Section 13–212(c) provides:
             “(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 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 section 13–212(b)
did not even apply to their case. According to plaintiffs, their
complaint, which alleged, inter alia, that defendants “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 that contained an opinion from a doctor of
osteopathy that the care and treatment provided to Anna fell below
the minimum standard of care, was not alleging an injury “arising out
of patient care.” Thus, according to plaintiffs, their complaint alleged
ordinary negligence and was subject to the limitations periods
provided in sections 13–202 (735 ILCS 5/13–202 (West 2006)) and
13–211 (735 ILCS 5/13–211 (West 2006)). Third, plaintiffs


                                  -5-
contended that their amended complaint was timely filed because it
related back to their original complaint.
    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
section 13–212(b) limitations period did not apply. Alternatively, the
court found that, if section 13–212(b) did apply, then the repose
period was tolled until Robert’s birth because his status as a fetus was
an additional disability.
    Defendants moved to reconsider. On the first issue, defendants
pointed out that section 13–212 applies to all injuries “arising out of
patient care” and argued that the substance of plaintiffs’ complaint
unquestionably alleged an injury arising out of patient care.
Defendants argued that even if the trial court was correct that the
negligence involved was “akin to negligence in keeping a storage
cabinet in proper order,” the injury still arose out of the care rendered
by defendants. Defendants contended that this injury arose out of
patient care just as surely as if Dr. Mercola would have accidentally
injected Anna with the wrong medication. Defendants offered
examples of injuries that Anna could have suffered that would not
have arisen out of the care provided by defendants:
         “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. Brucker 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.

                                  -6-
     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 section 13–212(b) had not been tolled. The court found that a claim
for prenatal injuries accrues at birth, and that at the time of his birth
Robert was not under a disability other than minority. Consequently,
section 13–212(c), which tolls the running of the repose period if the
plaintiff is under a disability other than minority at the time of accrual,
did not apply.
     Plaintiffs filed a second amended complaint on February 3, 2005.
This complaint specifically alleged Robert’s legal disability at the time
of Anna’s poisoning. Defendants again moved to dismiss count III,
relying on their previous arguments. The trial court, relying on the
same grounds as it did in dismissing count III of the amended
complaint, dismissed count III of the second amended complaint. The
trial court found no just reason to delay or enforcement or appeal of
the order. See 210 Ill. 2d R. 304(a).
     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 section 13–212(b)’s limitations period. The court
noted that the phrase “arising out of patient care” in section 13–212
had been construed broadly. Although it agreed with plaintiffs that
defendants’ negligence involved the improper storage and packaging
of nonprescription supplements, the court explained that “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.” 363 Ill. App. 3d at 1021. The court further rejected plaintiffs’
argument that the injury arose out of Dr. Mercola’s business as a
vendor of supplements, pointing out that this case did not involve a
member of the general public who simply came in off the street to
purchase supplements from Dr. Mercola. Rather, Anna was Dr.
Mercola’s patient and he prescribed the supplement to treat a medical


                                   -7-
condition but then sold her a mislabeled bottle. 363 Ill. App. 3d at
1023.
    The appellate court also agreed with defendants that section
13–212(c)’s tolling provision did not apply. 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 other than minority
was not at the time the injury occurred but at the time the cause of
action accrued. 363 Ill. App. 3d at 1025. The court held that a cause
of action for prenatal injuries accrues at birth, and Robert was not
under a disability other than minority when the cause of action
accrued. 363 Ill. App. 3d at 1025-26. Thus, the repose period ended
eight years after the injury occurred, and count III of plaintiffs’
complaint was filed too late.
    We allowed plaintiffs’ petition for leave to appeal. 210 Ill. 2d R.
315.

                                ANALYSIS
    The trial court dismissed count III of plaintiffs’ second amended
complaint pursuant to section 2–619(a)(5) of the Code, which
provides for the involuntary dismissal of a cause or claim when the
action is not “commenced within the time limited by law.” 735 ILCS
5/2–619(a)(5) (West 2006). We review such dismissals de novo.
DeLuna v. Burciaga, 223 Ill. 2d 49, 59 (2006).
    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 section 13–212(b)
and, if it is, whether the tolling provision found in section 13–212(c)
applies. These issues require us to construe those statutory provisions.
    The principles informing statutory construction are familiar. The
primary rule of statutory construction is to ascertain and give effect to
the legislature’s true intent and meaning. Vine Street Clinic v.
HealthLink, Inc., 222 Ill. 2d 276, 282 (2006). The language of the
statute is the best indication of legislative intent, and our inquiry
appropriately begins with the words used by the legislature. Business
& Professional People for the Public Interest v. Illinois Commerce
Comm’n, 146 Ill. 2d 175, 207 (1991). If the statutory language is

                                  -8-
clear and unambiguous, then there is no need to resort to other aids
of construction. Henry v. St. John’s Hospital, 138 Ill. 2d 533, 541
(1990). However, when the language used is susceptible to more than
one equally reasonable interpretation, the court may look to additional
sources to determine the legislature’s intent. People ex rel.
Department of Professional Regulation v. Manos, 202 Ill. 2d 563,
571 (2002). All provisions of a statutory enactment are viewed as a
whole. People ex rel. Sherman v. Cryns, 203 Ill. 2d 264, 279 (2003).
Accordingly, all words and phrases must be interpreted in light of
other relevant provisions of the statute and must not be construed in
isolation. Cryns, 203 Ill. 2d at 279-80. Each word, clause and
sentence of the statute, if possible, must be given reasonable meaning
and not rendered superfluous. Sylvester v. Industrial Comm’n, 197 Ill.
2d 225, 232 (2001). In determining the General Assembly’s intent, we
may properly consider not only the language of the statute, but also
the purpose and necessity for the law, the evils sought to be remedied,
and the goals to be achieved. Cryns, 203 Ill. 2d at 280. Further, when
undertaking the interpretation of a statute, we must presume that
when the legislature enacted a law, it did not intend to produce
absurd, inconvenient or unjust results. Vine Street Clinic, 222 Ill. 2d
at 282. Finally, in construing statutory provisions like the one at issue
here, we must keep in mind both that (1) the purpose of tolling
provisions for legal disability is to protect the rights of those persons
who are not competent to do so themselves, and (2) “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
v. Alexian Brothers Hospital, 178 Ill. 2d 445, 454-55 (1997).

                      Arising Out of Patient Care
    The limitations periods provided in section 13–212 apply to any
actions “whether based upon tort, or breach of contract, or otherwise,
arising out of patient care.” 735 ILCS 5/13–212(a), (b) (West 2006).
In Hayes v. Mercy Hospital & Medical Center, 136 Ill. 2d 450
(1990), this court explained the purpose behind the General
Assembly’s enactment of section 13–212 and held that, in light of that
purpose, when a cause of action is filed against a physician or other
covered medical provider, the legal theory upon which the plaintiff

                                  -9-
styles his or her claim will not govern whether section 13–212 applies.
This court 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 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 section 13–212 provides the applicable
limitations period is not whether the complaint alleges medical

                                   -10-
malpractice, but whether the complaint alleges an injury arising out of
patient care.
    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 section 13–212 or the meaning of “arising
out of patient care.” Rather, the court in each case addressed whether
the plaintiff’s complaint had to be dismissed because the plaintiff failed
to attach an attorney’s affidavit and a health professional’s report
pursuant to section 2–622 of the Code of Civil Procedure (735 ILCS
5/2–622 (West 2006)). Here, there is no section 2–622 issue because
plaintiffs attached an attorney’s affidavit and a health professional’s
report. In the health professional’s report, a doctor of osteopathic
medicine stated that he had reviewed the records and determined to
a reasonable degree of medical certainty that the treatment provided
to Anna Marie Brucker fell below the minimum standard of care.
     Moreover, the scope of each of these statutes is different. Section
13–212(b), which is a limitations section, applies to actions 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.” (Emphasis added.) 735 ILCS 5/13–212(b) (West 2006).
By contrast, section 2–622, which governs when an attorney’s
affidavit and a health professional’s report 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.) 735
ILCS 5/2–622(a) (West 2006). Section 13–212(b) is broader than
section 2–622(a), and it is clear that there are some situations in which
a plaintiff would have to file within the time limits prescribed by
section 13–212(b), but would not have to attach an attorney’s
affidavit or a health professional’s report. All actions for injury or
death arising out of patient care must be filed within the time limits set
forth in section 13–212, but only those that allege injuries by reason
of healing art malpractice require an attorney’s affidavit and a health
professional’s report to be attached to the complaint. In deciding

                                  -11-
whether section 2–622 affidavits and medical reports are required in
particular cases, courts have focused on the plain meaning of the
terms “healing,” “art,” “healing art” and “malpractice.” See, e.g.,
Jackson v. Chicago Classic Janitorial & Cleaning Service, Inc., 355
Ill. App. 3d 906, 910 (2005); Milos v. Hall, 325 Ill. App. 3d 180, 183
(2001); Cohen v. Smith, 269 Ill. App. 3d 1087, 1090 (1995); Lyon,
156 Ill. App. 3d at 653. Consideration of the definitions of these terms
has led courts to focus on three factors in determining the applicability
of section 2–622: (1) whether the standard of care involves
procedures not within the grasp of the ordinary lay juror; (2) whether
the activity is inherently one of medical judgment; and (3) the type of
evidence that will be necessary to establish plaintiff’s case. See
Jackson, 355 Ill. App. 3d at 909. This is not the analysis courts have
used in determining the applicability of section 13–212. Because the
terms “healing art” and “malpractice” appear nowhere in section
13–212,1 an analysis based on the definitions of those terms is not
helpful.2 Thus, we will not consider the portions of the parties’
arguments that are based on section 2–622 cases.
     Not surprisingly, courts that have considered the scope of section
13–212 have focused on the plain meaning of “arising out of patient
care.” In Miller v. Tobin, 186 Ill. App. 3d 175 (1989), the appellate
court, consulting 6 C.J.S. Arise 525, 526 (1975), concluded that the
phrase “arising out of” is “broad and generally means ‘originating
from,’ ‘growing out of,’ or ‘flowing from.’ ” Miller, 186 Ill. App. 3d
at 177. Accordingly, the court held the statute applicable to a claim
alleging that a psychiatrist violated the Mental Health and
Developmental Disabilities Confidentiality Act (Ill. Rev. Stat. 1987,
ch. 91½ , pars. 801 through 817 (now 740 ILCS 110/1 et seq. (West
2006))) by revealing confidential information to the plaintiff’s wife
after the plaintiff had asked the doctor not to reveal the information.
The court found that the alleged injury arose out of patient care


       1
    Although courts informally refer to section 13–212 as the “medical
malpractice statute of repose” (see Hayes, 136 Ill. 2d at 453), the term
“medical malpractice” does not appear in that section.
   2
    As we will discuss later, a similar error underlies and informs much of
Justice Burke’s special concurrence.

                                   -12-
because the plaintiff and his wife had seen the doctor for medical
problems and the information was disclosed during his wife’s phase of
the treatment. The Miller court noted that “[w]hile this section
[13–212] applies to malpractice actions against physicians, it is a
general limitations section designed to apply to all cases against
physicians arising out of patient care. Therefore, the pertinent issue is
not whether plaintiff’s suit alleges malpractice, but whether
plaintiff’s injuries arose out of patient care.” (Emphases added.)
Miller, 186 Ill. App. 3d at 177.
    In Walsh v. Barry-Harlem Corp., 272 Ill. App. 3d 418 (1995), the
court held section 13–212 applicable to a Consumer Fraud and
Deceptive Business Practices Act (Ill. Rev. Stat. 1989, ch. 121½, par.
261 et seq. (now 815 ILCS 505/1 et seq. (West 2006))) claim filed
against an eye clinic. The plaintiff alleged in his consumer fraud claim
that the doctor intentionally misrepresented that plaintiff needed to
have a cataract removed and a new lens implanted. The plaintiff
alleged that he did not in fact need these services. The plaintiff argued
that section 13–212 was not applicable to his complaint because he
was not alleging an injury that resulted from the manner in which
patient care and treatment were rendered. Rather, his complaint was
about the commercial aspects of the business and the fact that the
defendants intentionally misrepresented test results and the need for
surgery. He did not allege any deviation from a medical standard of
care. The court rejected his argument, finding that his injury did arise
out of patient care. The court held that “the plaintiff’s allegations of
misconduct were inextricable from the defendants’ diagnosis and
treatment of his eyes.” Walsh, 272 Ill. App. 3d at 425.
    In Stiffler v. Lutheran Hospital, 965 F.2d 137 (7th Cir. 1992), the
Seventh Circuit noted the broad reach of section 13–212. In that case,
the plaintiff brought a products liability action against Lutheran
Hospital. Several years after the plaintiff had a prosthetic device
implanted in her chest during a hernia operation, the device broke free
and became entangled in her intestines. The plaintiff’s products
liability suit alleged that the hospital was strictly liable as the
prosthetic device’s distributor. The hospital argued that the suit was
barred by section 13–212. The plaintiff contended, inter alia, that
section 13–212 did not apply to her claim because she was not
alleging an injury arising out of patient care. According to the plaintiff,

                                   -13-
her injury resulted not from the hospital’s medical care, but rather
from its negligent choice and distribution of a defective prosthetic
device. The Seventh Circuit rejected this argument, noting that
“arising out of patient care” was intended to be construed broadly and
that there was not a clear distinction between medical care and the
distribution of medical materials. Stiffler, 965 F.2d at 140-41.
Moreover, the court found that “medical materials are so inextricably
linked with every step of today’s treatment processes that their use
almost per se arises ‘out of patient care.’ ” Stiffler, 965 F.2d at 140.
    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 this count, the plaintiff alleged that the
hospital was negligent because it breached its duty to preserve the
operative report for the exploratory laparotomy that caused her
husband’s death, prejudicing her malpractice claims against the
hospital and the doctor who performed the surgery. The trial court
dismissed count V as time-barred under the four-year repose provision
of section 13–212(a) of the Code (735 ILCS 5/13–212(a) (West
1996)). Cammon, 301 Ill. App. 3d at 942-43.
    The appellate court reversed. The court first acknowledged that,
in a section 13–212 analysis, the relevant question is whether the
complaint alleges an injury arising out of patient care. The court then
agreed with Miller that, “ ‘The phrase “arising out of” is broad and
generally means “originating from,” “growing out of,” or “flowing
from.” ’ ” Cammon, 301 Ill. App. 3d at 950, quoting Miller, 186 Ill.
App. 3d at 177. Instead of next considering whether the allegations of
the plaintiff’s complaint alleged an injury that originated from, grew
out of, or flowed from her husband’s care and treatment, however, the
court shifted gears and considered what breach of duty plaintiff was
alleging:
             “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

                                 -14-
         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 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, 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.” 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 section 13–212 turns on whether the
plaintiff alleged an injury “arising out of patient care,” the courts that
focused on the plain meaning of that phrase used the correct analysis.
The phrase “arising out of” has a set meaning in the law. In any
context in which it is used, the phrase has been defined broadly and
refers to a causal connection. Miller’s definition 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 Workers’ Compensation Act (820
ILCS 305/1 et seq. (West 2006)) provides compensation for injuries
“arising out of and in the course of” employment. 820 ILCS 305/2


                                  -15-
(West 2006). This court has placed the following construction on
“arising out of”:
             “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
         employer, 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 (40
ILCS 5/5–227 (West 2006)), which provides that a police officer may
be disqualified from receiving benefits if he is convicted of a felony
“relating to or arising out of or in connection with” his service as a
police officer, this court has found that the statute is broad enough to

                                  -16-
encompass “but for” causation. Devoney v. Retirement Board of the
Policemen’s Annuity & Benefit Fund, 199 Ill. 2d 414, 423 (2002).
When construing an insurance policy, courts have also defined “arising
out of” as referring to “but for” causation, but that is because the
phrase is considered broad and vague and insurance policies must be
construed in the insured’s favor. See State Automobile Mutual
Insurance Co. v. Kingsport Development, LLC, 364 Ill. App. 3d 946,
953-54 (2006); Liberty Mutual Insurance Co. v. Westfield Insurance
Co., 301 Ill. App. 3d 49, 54 (1998).
    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 injuries that have their origin in, or are incidental to,
a patient’s medical care and treatment.3 This court has been defining
“arising out of” as referring to cause or origin since at least 1917 (see
Eugene Dietzen Co. v. Industrial Board, 279 Ill. 11, 15 (1917)), so
we should presume that the legislature was well aware of the judicial
construction of this phrase when it used it in section 13–212.4
Moreover, it is obvious that the term “patient care” is itself broad,



  3
    Examples of the types of injuries that would not have happened “but for”
the fact that Anna went to Dr. Mercola’s office for treatment were given in
defendants’ motion to dismiss: something falls out of Dr. Mercola’s storage
cabinet and hits Anna on the head, something explodes in the storage cabinet
and injures her, or Anna slips and falls on the way to the bathroom in Dr.
Mercola’s office. These hypothetical injuries would not have happened but
for the fact that Anna went to Dr. Mercola’s office for treatment, but they
would not have been injuries arising out of the care and treatment provided
to Anna by defendants.
  4
   The specially concurring justices offer no explanation for why we should
not presume that the legislature intended “arising out of” to have the same
meaning always assigned to it. Morever, in the workers’ compensation
context, this court has for years been construing the phrase to refer to cause
or origin while not encompassing “but for” causation, so the specially
concurring justices’ assertions that this is an unworkable test are not well-
taken.

                                    -17-
encompassing the entire scope of a person’s medical care and
treatment.
     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 supplements.
Plaintiffs argue that the negligence alleged here arose solely out of the
latter. The Seventh Circuit in Stiffler, when setting forth a
hypothetical example of the type of injury that would not arise out of
patient care, outlined a scenario in which a medical provider wore two

                                  -18-
such hats. After noting how broad the term “arising out of patient
care” was intended to be, the Seventh Circuit conceded that there may
be some activities undertaken by a hospital that are not part of a
patient’s medical treatment. The example the Seventh Circuit came up
with was the following:
         “For example, a hospital-run gift shop which sells non-
         prescription medicine 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

                                   -19-
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. Slip op. at 44-45 (Kilbride,
J., specially concurring); slip op. at 55 (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.”
735 ILCS 5/13–212 (West 2006). This court noted in Solich v.
George & Anna Portes Cancer Prevention Center of Chicago, Inc.,

                                  -20-
158 Ill. 2d 76, 82 (1994), however, that section 13–212 also covers,
in certain circumstances, employees of licensed providers acting within
the scope of their employment. Plaintiffs have offered no reasons why
this case–in which they sued Pierce as Dr. Mercola’s agent, Dr.
Mercola placed Pierce in charge of filing the supplement bottles,
Pierce filled the bottles in the scope of her employment, and Dr.
Mercola testified that it was his responsibility to see that the
supplement bottles were filled correctly–would not represent one of
those circumstances.
    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 legislature’s pronouncement that the statute applies 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” (slip op. at 42
(Kilbride, J., specially concurring)); (2) the legislature did not intend
to “shield medical providers from liability in all endeavors, including
those not associated with patient care”(slip op. at 44 (Kilbride, J.,
specially concurring)); (3) the filling of the supplement containers was
an activity solely supporting Dr. Mercola’s sale of supplements not his
medical practice (slip op. at 44 (Kilbride, J., specially concurring)); (4)

                                   -21-
the sale of supplements was “completely unrelated” to Dr. Mercola’s
care and treatment of his patients (slip op. at 46 (Kilbride, J., specially
concurring)); (5) the legislature did not intend section 13–212 “to
eliminate medical providers’ liability in causes of action unrelated to
the ‘care and treatment of patients’ ”5 (slip op. at 47 (Kilbride, J.,
specially concurring)).
    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 that 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. Slip op. at 40-41 (Kilbride, J.,

   5
    This last assertion is confusing. Section 13–212 merely establishes the
time limitations under which suits alleging injuries arising out of care must
be brought. It does not eliminate liability for anything.

                                    -22-
specially concurring). Justice Kilbride takes this to mean that we must
“consider the factual possibility that Dr. Mercola’s supplements sales
business is separate from his medical practice.” Slip op. at 40
(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 that the two
were not separate. The rule of liberal construction of pleadings and
supporting documents 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 and had the depositions showed
the opposite of what they did. Treating patients with supplements was
at the very heart of Dr. Mercola’s medical practice, and the
connection between the treatment provided to Anna and the injuries
to her and her fetus is clear, palpable, and obvious.
     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.” Slip op. at 51 (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 section 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 majority 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.



                                 -23-
    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.) 735 ILCS 5/2–622(a) (West 2006). Thus, the
legislature knows exactly how to use the term “healing art
malpractice” when that is what it means. Because the legislature
instead made section 13–212 applicable when the plaintiff seeks
damages for injury or death, whether in tort, breach or contract, or
otherwise, arising out of patient care, we must presume that the
legislature did not intend “patient care” to be synonymous with
“medical malpractice.” Perhaps the easiest way to state the point is
that all medical malpractice claims involve injuries arising out of
patient care, but not all injures arising out of patient care were by
reason of medical malpractice. The canon of statutory construction
that Justice Burke cites in support of her interpretation is that courts
must presume that the legislature did not intend absurdity,
inconvenience, or injustice. Slip op. at 54 (Burke, J., specially
concurring). We fail to see the absurdity, injustice, or inconvenience
in concluding that a statute that covers all actions for injuries arising
out of patient care applies to a cause of action alleging that a doctor
poisoned his own patient by negligently providing her with the wrong
substance to treat a medical condition that he had diagnosed.
    Second, there is no need to consider whether plaintiffs’ claim is
one for ordinary negligence or medical malpractice. Both actions are
covered by section 13–212(b) if the injury arose out of patient care.
Again, section 13–212(b) applies to all actions, “whether in tort,
breach of contract, or otherwise, arising out of patient care.” 735
ILCS 5/13–212(b) (West 2006). Ordinary negligence claims and
medical malpractice claims are both tort claims, and both are covered
by section 13–212 if the plaintiffs’ injury arose out of patient care. The
erroneous assertion by Justice Burke that a court must consider
whether the claim is one for medical malpractice or ordinary
negligence rather than whether the plaintiffs’ injury arose out of

                                  -24-
patient care causes her to see a conflict with Heastie v. Roberts, 226
Ill. 2d 515 (2007), where none exists. As Justice Burke acknowledges,
Heastie did not address the applicability of section 13–212. Rather,
the discussion she references considers whether expert medical
testimony would be required to establish the plaintiffs’ claim. As we
discussed earlier, the class of cases in which a plaintiff would need
expert medical opinions is narrower than the class of cases subject to
section 13–212. Thus, Justice Burke is wrong when she states that
“[i]t simply makes no sense that a claim could 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” (slip op. at
54 (Burke, J., specially concurring)). In fact, it makes perfect sense
because ordinary negligence claims are covered by section 13–212 if
the plaintiff’s injury arose out of patient care.
      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 slip op. at 15-17. 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. Slip op. at 16. 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 to 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

                                   -25-
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. Justice Kilbride states that “patient care”
was not implicated in the faulty preparation of the supplement
containers (slip op. at 47 (Kilbride, J., specially concurring)), and that
“Dr. Mercola’s potential liability arises, not from the care and
treatment he rendered to his patient Anna Marie, but from a
nonmedical staff member’s negligence in performing ministerial tasks
associated with Dr. Mercola’s separate supplement sales business, not
his medical practice.”6 After ironically stating that “the majority never
considers the nature of plaintiff’s complaint” (slip op. at 52 (Burke, J.,
specially concurring)), Justice Burke claims that “the negligence which
led to Anna Marie’s poisoning *** is based on Pierce’s failure to fill
containers correctly” (slip op. at 52 (Burke, J., specially concurring)).
Again, the specific allegations of negligence that plaintiff pleaded are:
            “(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.”


   6
    Justice Kilbride fails to explain from where in the record he has drawn
the conclusion that the supplements Barbara Pierce was bottling were not
associated with Dr. Mercola’s medical practice.

                                   -26-
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 supplements–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–that there must be an allegation that the medical
provider committed an error in judgment or breached a medical
standard of care (slip op. at 51 (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. Mercola did exercise
judgment in deciding to place a person with no medical training in
charge of bottling substances that he intended to use to treat his
patients and also in deciding to keep in the office dangerous look-alike
substances in unmarked containers. Moreover, plaintiffs have already
obtained and attached to their complaint a report from an osteopath
stating that Dr. Mercola breached the relevant standard of care. Thus,
even if Justice Burke were correct that section 13–212(b) applies only
when a complaint alleges that a medical standard of care was breached
or when a medical provider’s exercise of judgment is involved,
plaintiffs’ complaint falls within that test.




                                   -27-
                     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. T h e
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 Ill. Rev. Stat. 1985, ch. 110, par. 13–212. In
1987, the legislature amended the statute, and the plain language of
section 13–212(c) now provides that the repose period is tolled if the
person is under a legal disability other than being under the age of 18
at the time the cause of action accrued.
     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

                                  -28-
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 of the negligence of a third party. This court would
later reject viability as a requirement in a cause of action for prenatal
injuries suffered by a fetus due to the negligence of a third person. See
Renslow v. Mennonite Hospital, 67 Ill. 2d 348 (1977). In Renslow,
this court stated that “there is a right to be born free from prenatal
injuries foreseeably caused by a breach of duty to the child’s mother”
(Renslow, 67 Ill. 2d at 357), and in Stallman v. Youngquist, 125 Ill. 2d
267, 275 (1988), this court stated that the injuries to a fetus become
apparent at its birth.
    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

                                  -29-
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 of limitation must
be liberally construed to fulfill the objectives for which they were
enacted and that such statutes are consistently construed so as to
preserve a minor’s right to a day in court, the court held that the
applicable repose period is determined by the date the injury occurred
rather than the date the cause of action accrued. The court stated that
it could find no intent on the part of the legislature to shorten the
eight-year period of repose simply because the injury is discovered
after the injured party turns 18. The court noted that section
13–212(b) limits plaintiffs to, at most, four years after turning 18 in
which to bring the suit and that this time limit coincides with the four-
year repose period for adults provided in section 13–212(a). Kararo,
201 Ill. App. 3d at 64. The appellate court in the present case stated
that Kararo’s holding could not be reconciled with the plain language
of the statute. 363 Ill. App. 3d at 1026.
     Plaintiffs argue that the appellate court erred in refusing to follow
Kararo. In addition to Kararo, plaintiffs rely on Bruso v. Alexian

                                  -30-
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 as simple as saying that
the word “accrued” is unambiguous and that a claim for prenatal

                                  -31-
injuries accrues at birth. Therefore, the repose period began at the
time of the occurrence and was never tolled 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 section 13–212, is ambiguous. The law uses the
term “accrued” in different ways. Black’s defines “accrue” as “[t]o
come into existence as an enforceable claim or right; to arise.” Black’s
Law Dictionary 22 (8th ed. 2004). In other words, a cause of action
accrues when facts exist that authorize the bringing of a cause of
action. See Walters v. City of Ottawa, 240 Ill. 259, 263 (1909);
Schreiber v. Hackett, 173 Ill. App. 3d 129, 131 (1988). This court has
held that a tort cause of action accrues when all the elements are
present: duty, breach, and resulting injury or damage. West American
Insurance Co. v. Sal E. Lobianco & Son Co., 69 Ill. 2d 126, 129-30
(1977). In Moore v. Jackson Park Hospital, 95 Ill. 2d 223, 232
(1983), this court held that, in medical malpractice cases in which the
discovery rule applies, the cause of action accrues when the plaintiff
knows or reasonably should know of an injury and also knows or
reasonably should know that it was wrongfully caused. A form of the
discovery rule has been incorporated into section 13–212(a). That
section provides that causes of actions arising out of patient care must
be brought within two years of the date that the claimant knew or
should have known of the cause of action, but also provides that no
such suit may be brought more than four years after the occurrence
alleged to have been the cause of the injury.
    Before the 1987 amendment to section 13–212, it was clear that
the relevant time at which a person must be disabled to toll the
running of the limitations period was generally at the time of the
occurrence that caused the injury.7 The question is whether the


  7
    Previously, the tolling provision read: “If the person entitled to bring the
action is, at the time the cause of action occurred, under the age of 18 years,
or under legal disability or imprisoned on criminal charges, the period of
limitations does not begin to run until the disability is removed.” See Ill. Rev.
Stat. 1985, ch. 110, par. 13–212. It is apparent that by using the somewhat
awkward phrase “cause of action occurred,” the legislature was using “cause
of action” simply as meaning “[a] group of operative facts giving rise to one

                                     -32-
legislature changed the meaning of this provision when it replaced the
word “occurred” with “accrued.” Plaintiffs point out a glaring problem
with defining “accrued” in section 13–212(c) as having the meaning
that it is usually given in medical malpractice cases. Again, section
13–212(c) tolls the running of the limitations period if the person is
under a legal disability other than minority at the time the cause of
action accrued. If the person is under such a disability, however,
would it be possible for the cause of action to accrue? In Bloom v.
Braun, 317 Ill. App. 3d 720 (2000), the court held that a person is
under a legal disability when that person is “ ‘ “incapable of managing
[his or] her person or property and could not comprehend [his or] her
rights or the nature of the act giving rise to [his or] her cause of
action.” ’ ” Bloom, 317 Ill. App. 3d at 731, quoting Sille v. McCann
Construction Specialties Co., 265 Ill. App. 3d 1051, 1054 (1994),
quoting Tardi v. Henry, 212 Ill. App. 3d 1027, 1040-41 (1991). Thus,
it would seem impossible for a person to be under a disability other
than minority when a medical malpractice cause of action accrued,
because the cause of action would not accrue if the person was under
such a disability. Defendants claim that plaintiffs’ argument on this
point “makes no sense” but do not explain why. At oral argument,
they were given a second chance to explain why plaintiffs are incorrect
on this point and still could not do so. Because we cannot construe a
statute in such a way as to render it meaningless, we do not believe
that “accrued” in section (c) can be read as referring to a plaintiff’s
discovery of a cause of action.
    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 section 13–212, the facts authorizing
the bringing of a cause of action will exist at the time of occurrence.
It seems likely that, when the legislature used the word “accrued” in
section 13–212, it was using it in a way that would usually coincide
with the occurrence. As plaintiffs point out, this court and two


or more bases for suing; a factual situation that entitles one person to obtain
a remedy in court from another person.” See Black’s Law Dictionary 235
(8th ed. 2004).

                                    -33-
districts of the appellate court have examined the preamendment and
postamendment versions of section 13–212’s tolling provision and
have determined that no substantive change was intended. Using this
definition of “accrued” would mean that the provision still has the
same meaning as when it read “cause of action occurred.” See
footnote 3, supra. Moreover, subsection (a) has a four-year repose
period that begins to run at occurrence and the eight-year repose
period in section (b) begins to run at the time of occurrence.
Accordingly, when the legislature speaks of tolling these periods in
section (c), it makes sense to conclude that the legislature was
referring to a tolling at the time that the period would typically begin
to run. We also note that, in 1990, the Third District determined that
“accrued” in subsection (b) must mean “occurred” (Kararo, 201 Ill.
App. 3d at 63-64) and that 17 years have now gone by without the
legislature amending that provision. Finally, given “accrued” the
meaning it is typically given in medical malpractice cases renders
subsection (c) nonsensical.
    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 the 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
the opposite conclusion from the one defendants want this court to
draw. Because the cause of action could not be maintained until birth,
the court held that the statute of limitations could not begin to run
until birth. See Simmons, 29 Pa. D. & C.2d at 56-57. The defendants

                                  -34-
might respond that Simmons did not set forth the statutory language
at issue but referred to it as a “statute of limitations.” This court has
referred to section 13–212(b) as a “statute of repose” and explained
that a statute of limitations governs the time within which lawsuits
may be commenced after accrual, but that statutes of repose
extinguish causes of action after a fixed period of time after a specified
event occurs. Ferguson v. McKenzie, 202 Ill. 2d 304, 311 (2001).
     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 prosthetic aid or device.” (Emphasis added.)
        N.Y. C.P.L.R. §214-a (McKinney 2003).8



    8
    A 10-year infancy toll also applied to the plaintiff’s case. See N.Y.
C.P.L.R. §208 (McKinney 2003).

                                  -35-
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 left in the body. The court
held, however, that it was not creating a new exception. Rather, it was
“tak[ing] the statute on its own terms and apply[ing] it to this
unenvisaged circumstance.” LaBello, 85 N.Y.2d at 706, 651 N.E.2d
at 911, 628 N.Y.S.2d at 43.
     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

                                   -36-
         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 La Bello. 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 (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. The statute in question provided a limitations period

                                   -37-
of two years from “the occurrence of the breach or tort or from the
date the medical or health care treatment that is the subject of the
claim or the hospitalization for which the claim is made is completed.”
Tex. Rev. Civ. Stat. Ann. art. 4590i, §10.01 (Vernon Supp. 1998).
Providing notice of such a claim tolled the running of the limitations
period for 75 days, giving health-care liability claimants 2 years and 75
days to file claims. Brown, 968 S.W.2d at 333. The plaintiffs argued
that, because a health-care liability claim was defined by statute as an
action for injury or death to a patient, the limitations period could not
begin to run until the child was born. The plaintiffs reasoned that a
fetus cannot be a patient. The Texas Supreme Court rejected this
argument, noting that if a fetus could not be a patient, then plaintiffs
would have no claim at all. The court acknowledged that a claim on
behalf of a fetus is actionable if the child is later born alive, but held
that the limitations period runs from the date of the occurrence.
Brown, 968 S.W.2d at 333-34. 9
    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

    9
      Interestingly, however, the Texas Supreme Court would later apply
reasoning similar to that of the New York and Louisiana courts when
construing a different statute. In University of Texas Southwestern Medical
Center v. Loutzenhiser, 140 S.W.3d 351 (Tex. 2004), the plaintiff claimed
that her son was born with a severely deformed hand that was caused by a
prenatal test performed by the University of Texas Southwestern Medical
Center. At issue was when the six-month notice period began to run under
a statute that required notice of claims against governmental units. The
statute’s plain language provided that notice was required “not later than six
months after the day that the incident giving rise to the claim occurred.” Tex.
Civ. Prac. & Rem. Code Ann. §101.101(a) (Vernon 2005). The court held
that, in the case of an injury to a fetus, the six-month period begins at live
birth. The court reasoned that, because no injury could be maintained for a
prenatal injury until live birth, there were two incidents giving rise to the
claim: (1) the occurrence that caused the injury; and (2) live birth.
Loutzenhiser, 140 S.W.3d at 356-57.

                                    -38-
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 section 13–212 a clear bar to
Robert’s suit. The courts have been struggling to determine the
meaning of this section for 20 years, and today we hold it to be
ambiguous. We find extremely farfetched any notion that the
legislature worded the statute the way it did in order to provide
different time limits for children injured in utero and children injured
after birth. Rather, we agree with LaBello’s conclusion that this is
simply an unenvisaged circumstance. Absent some clear expression
from the legislature that its intent in section 13–212 was to run the
repose period against someone who was legally forbidden from going
to court and to shorten the time period in which children injured in
utero may bring a cause of action, we hold that the repose period in
section 13–212(b) cannot begin to run until the child is born.
Accordingly, count III of plaintiffs’ complaint, filed within eight years
of Robert’s birth, was timely filed.

                           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
section 13–212(b). Because Robert was a fetus at the time of the
occurrence that led to his injury, however, the eight-year period did
not begin to run until he was born and had a right to pursue his claim

                                  -39-
in court. Count III was thus timely filed, and we reverse the judgment
of the appellate court, which upheld the dismissal of count III.

                                  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 section 13–212(b). I believe the motion to dismiss should have been
denied. The statute does not apply because Dr. Mercola’s sale of
dietary supplements does not ”arise out of patient care” under section
13–212 and the case law of this state when that phrase is applied with
the proper balance between its component parts. Only if it is
improperly extended to include “but for” causation does the statute
apply in this case. Contrary to the majority’s contention (slip op. at 17
n.4), I do not believe this court’s traditional construction of “arising
out of” is unworkable. Rather, I believe an erroneous application of
that test conflicts with this court’s precedents and the intent of the
legislature.
    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 sales constitute a separate enterprise from his medical
practice, taking it outside the realm of “patient” care under section
13–212. For purposes of reviewing a dismissal under section 2–619,
we must consider the factual possibility that Dr. Mercola’s supplement
sales business is separate from his medical practice. See Paszkowski
v. Metropolitan Water Reclamation District of Greater Chicago, 213

                                  -40-
Ill. 2d 1, 5 (2004) (stating that in reviewing a dismissal order under
section 2–619, courts must interpret all pleadings and supporting
documents in the light most favorable to the nonmoving party and
grant dismissal only if recovery is impossible under any potential set
of facts).
     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 section 13–212’s statute of repose. We noted that our
legislature limited the time for filing medical malpractice cases due to
a perceived crisis in the medical malpractice insurance industry. The
legislature deemed the time limitation “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” and reducing
malpractice insurance premiums. (Emphasis added.) Hayes, 136 Ill. 2d
at 458. We then concluded that this objective would be advanced only
if the statutory provision was read “to limit a physician’s exposure to
liability for damages for injury or death arising out of patient care
under all theories of liability.” (Emphasis added.) Hayes, 136 Ill. 2d at
459. Thus, the contribution action in Hayes was subject to section
13–212 because the contributor’s obligation was based on his
underlying tort, regardless of the legal theory of liability asserted in
the third-party action.
     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

                                  -41-
against a covered medical provider is subject to section 13–212. Nor
did it hold that section 13–212 encompasses all causes of action where
a doctor-patient relationship exists. Rather, Hayes explained that the
legislature’s purpose in enacting the statute is furthered only when the
alleged injury arose out of patient care.
     Here, application of the statute of repose does not advance the
legislative purpose underlying section 13–212 because the injury
alleged was not based on improper or negligent patient care. Our
appellate court has previously addressed the scope of the term “patient
care.” In Walsh, 272 Ill. App. 3d at 422, our appellate court provided
guidance on the limits of the statutory phrase “arising out of patient
care.” After the plaintiff’s medical malpractice complaint was
dismissed for failing to include a mandatory physician’s affidavit, the
plaintiff filed a new complaint, alleging the defendants violated the
Consumer Fraud and Deceptive Business Practices Act by “ ‘falsely
represent[ing]’ ” the plaintiff’s need for cataract surgery. Walsh, 272
Ill. App. 3d at 421. The defendants sought dismissal under section
13–212(a), and the plaintiff countered that the section did not apply
because his complaint did not arise out of patient care. The appellate
court affirmed the dismissal order, noting that the complaint claimed
injuries arising out of patient care because “the plaintiff’s allegations
of misconduct were inextricable from the defendants’ diagnosis and
treatment of his eyes.” (Emphasis added.) Walsh, 272 Ill. App. 3d at
425. Thus, section 13–212 applied even though the plaintiff alleged
fraud, not medical malpractice. Rewording the claim to fit into a
different legal theory did not change the true basis of the claim, patient
care. Walsh, 272 Ill. App. 3d at 425.
     Similarly, in Stiffler, 965 F.2d 137, the plaintiff argued that section
13–212(a) did not bar a product liability claim against a hospital
because the implantation of a defective prosthetic device during hiatal
hernia surgery was “unrelated to her medical treatment.” She argued
that the injury resulted from the hospital’s “negligent choice and
distribution of a defective prosthetic device.” Stiffler, 965 F.2d at 140.
The United States Court of Appeals for the Seventh Circuit disagreed,
explaining that the hospital had not “sold” the device to her, but had
only used it as part of her treatment. Stiffler, 965 F.2d at 141. As part
of the plaintiff’s medical treatment, the implantation of the device fell
within the phrase “arising out of patient care” in section 13–212.

                                   -42-
Notably, the Stiffler court also expressly acknowledged the possibility
that not all causes of action against a medical provider arise out of
patient care. Stiffler, 965 F.2d at 141. See also Heastie, 226 Ill. 2d at
551 (noting that “[n]ot every injury sustained by a patient in a hospital
results from healing-art malpractice”), citing Giegoldt v. Condell
Medical Center, 328 Ill. App. 3d 907, 911 (2002).
    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 section 13–212(a). Cammon, 301 Ill. App.
3d at 943. The appellate court reversed, holding that the hospital’s
alleged breach of its duty to preserve evidence did not implicate any
medical standard of care to bring it within the statutory requirement
that the claim arise out of “patient care.” Cammon, 301 Ill. App. 3d
at 950-51. While the court acknowledged that establishing damages
in the spoliation claim required the plaintiff to prove the underlying
medical negligence claim, it held that this connection did not transform
the spoliation claim into one seeking recovery for “the breach of a
medical standard of patient care.” Cammon, 301 Ill. App. 3d at 950.
    Applying the guidance offered by these cases, section 13–212’s
scope of coverage depends upon whether the complaint alleges that
the defendant’s wrongful conduct, error, or omission arose out of the
medical care or treatment rendered to the patient, not by the legal
theory asserted in the complaint. An allegation that the injury would
not have occurred “but for” the doctor-patient relationship is
insufficient to establish that the injury arose out of patient care. An
overbroad application does not advance the legislative objective of
“prevent[ing] extended exposure of physicians and other hospital
personnel to potential liability for their care and treatment of

                                  -43-
patients.” (Emphasis added.) Hayes, 136 Ill. 2d at 458. Notably, the
legislature did not express an intent to shield medical providers from
liability in all endeavors, including those not associated with patient
care. Any interpretation supporting that intention effectively reads the
term “patient care” out of the statute, in violation of our traditional
rules of statutory construction. People ex rel. Ryan v. Agpro, Inc.,
214 Ill. 2d 222, 227 (2005).
     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 (slip op. at 20), 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

                                 -44-
undoubtedly a patient in Dr. Mercola’s medical practice, but her
decision to purchase the supplements from his retail sales business was
in her role as an ordinary consumer. Surely if a member of the general
public had purchased the supplements from Dr. Mercola’s office, it
would have constituted an ordinary consumer sale, not an act of
“patient care.” Simply selling supplements to a member of the general
public does not instantly transform the purchaser into one of Dr.
Mercola’s patients. If that were not true, then each of Dr. Mercola’s
supplement sales would be an act of “patient care,” making each
purchaser into a “patient” under the statute, despite the lack of any
prior therapeutic relationship. I reject that overbroad interpretation of
“patient care.”
    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 (slip op. at 22), 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 slip op. at 22. Similarly, the majority points out that “plaintiffs did
not plead that Dr. Mercola’s distribution of supplements was separate
from his medical practice” (slip op. at 23), 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 (slip op. at 27), 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” (slip op. at 23),
the pleadings in this case did not allege that the supplement sales and

                                   -45-
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 section
13–212.
     As in Cammon, here the damages did not arise out of any alleged
breach of a duty to provide proper 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 section 13–212
fails to take into account the inapplicability of the remainder of that
key phrase, “patient care.” Because patient care was not implicated
in the faulty preparation of the supplement containers, the Bruckers’
claim could not have “arisen out of patient care.”
     Although the majority expressly disavows “but for” causation in
construing the phrase “arising out of patient care” (slip op. at 17), it
finds that the alleged injuries arose out of Dr. Mercola’s treatment of
Anna Marie. Those injuries, however, arose out of “patient care” only
in the broad sense that “but for” Dr. Mercola’s recommendation that
Anna Marie take L-glutamine, she would not have purchased the
improperly filled container and mistakenly ingested selenium.
Therefore, “but for” causation is precisely the test for “arising out of
patient care” applied by the majority, despite its express rejection of
that test. The majority’s assertion that I have mistakenly “lace[d] [my]
separate writing[ ] with repeated assertions that the majority adopts
‘but for’ causation” misreads the clear meaning of my language. Slip
op. at 25. I firmly believe the majority has “adopted” the proper test
but has failed to apply it properly in this instance. It is the majority’s
overly broad application of our traditional interpretation of the
“arising out of” component of the phrase that is unworkable and
contrary to the intent of our legislature.
     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

                                    -46-
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 section 13–212 “to prevent extended exposure
of physicians and other hospital personnel to potential liability for
their care and treatment of patients” and consequently reduce
malpractice insurance premiums. (Emphasis added.) Hayes, 136 Ill. 2d
at 458. It was not intended to eliminate medical providers’ liability in
causes of action unrelated to the “care and treatment of patients” after
the limitations period.
     Because a section 2–619 motion to dismiss can only be granted if
no recovery is available under any possible set of facts, the trial court
erred in granting the defendants’ motion in this case. Under the facts
outlined here, Dr. Mercola’s potential liability arises, not from the care
and treatment he rendered to his patient, Anna Marie, but from a
nonmedical staff member’s negligence in performing ministerial tasks
associated with Dr. Mercola’s separate supplement sales business, not
his medical practice. The majority questions how pleading allegations
directly involving Dr. Mercola’s actions and the mislabeled
supplements bottled by an employee could not be associated with his
medical practice. Slip op. at 26-27, 26 n.6. The answer is simple: Dr.
Mercola’s actions as a licensed osteopathic physician in his medical
practice are separable from his actions as an unlicensed purveyor of
supplements. If Dr. Mercola cannot undertake these two separable
roles, as the majority appears to contend, then each sale of
supplements must constitute “patient care,” even when those sales are
to members of the general public who have not previously been
patients in Dr. Mercola’s medical practice.
     The allegations cited by the majority (slip op. at 26-27) 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.
     For these reasons, I conclude that count III of the Bruckers’
amended complaint did not set forth a claim “arising out of patient
care” and, thus, is not subject to the medical malpractice statute of
repose found in section 13–212(b). Accordingly, I specially concur in
the majority’s judgment.


                                  -47-
    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 section 13–212(b) of the Code (735 ILCS
5/13–212(b) (West 2002)). In my view, count III should not have
been dismissed because it is not subject to the medical 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 section
13–212(b) of the Code, commonly referred to as the medical
malpractice statute of repose. This section provides in pertinent part:
            “(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.’ ” Slip op. at 15. 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.” Slip op. at 17. 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.” Slip op. at 17.


                                 -48-
    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
course of action to his patient. Clearly, any injury that occurs because
the patient followed the doctor’s orders would be “causally related”
or “incidental to” the patient’s medical care and treatment. Therefore,
if a patient obtains an X-ray at the recommendation of his or her
doctor and, while there, slips and falls or is struck on the head by a
piece of machinery or an item falling from a cabinet, such injuries
would be encompassed by the majority’s definition.
    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 statute 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

                                  -49-
         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 section 13–212 to limit “the time period in which a party
could bring a suit for medical malpractice” in order to achieve the goal
of reducing medical malpractice insurance premiums. We then held
that this objective would be advanced only if the statutory provision
was read broadly so as to “limit 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, in light of the
legislative purpose, we found it appropriate to look past the legal
theory upon which the plaintiff styled his or her claim. The medical
malpractice statute of repose would apply if the medical provider’s
liability was based, ultimately, on medical negligence. Consequently,
in Hayes, we held that an action for contribution was subject to the
medical malpractice statute of repose because
         “[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 those
         damages proximately caused by the negligent acts of the third-
         party defendant which the third-party plaintiff may be

                                    -50-
          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 section 13–212.
Rather, when deciding whether section 13–212 limitations periods
apply, the injury must arise out of patient care. An injury will arise out
of patient care if the medical professional commits an error in medical
judgment or breaches a medical standard of care to which he is held,
i.e., if the medical professional commits malpractice. Thus, the
relevant question to be asked is, “Is the plaintiff’s claim one seeking
recovery for medical negligence?” If so, the plaintiff will not be able
to escape the section 13–212 limitations periods simply by casting his
or her claim in terms of some other legal theory or cause of action.
See, e.g., Walsh v. Barry-Harlem Corp., 272 Ill. App. 3d 418 (1995);
Stiffler v. Lutheran Hospital, 965 F.2d 137 (7th Cir. 1992).
     By the same token, a cause of action will not be subject to the
limitations periods set forth in section 13–212 simply because it is
brought against a physician or other covered medical provider. Nor
will section 13–212 encompass causes of action which do not seek
recovery for medical negligence simply because a doctor-patient
relationship exists between the plaintiff and defendant. See, e.g.,
Cammon v. West Suburban Hospital Medical Center, 301 Ill. App. 3d
939 (1998). This is because the legislative purpose in enacting section
13–212 is furthered only when the provision is applied where the
underlying basis for the claim is medical negligence.
     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:

                                  -51-
              “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 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, 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.” Slip op. at 15. 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 slip op. at 17. 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

                                  -52-
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 sections 13–202 and 13–211 of the Code (735
ILCS 5/13–202, 13–211 (West 2004)). Notably, the majority never
addresses plaintiffs’ assertion that their claim is one for ordinary
negligence. As a result, the majority never considers whether the
distinction between ordinary negligence and medical negligence has
any significance when deciding whether an injury arises out of patient
care within the meaning of the statute. I believe this to be error.
     Recently, in Heastie v. Roberts, 226 Ill. 2d 515 (2007), this court
drew a distinction between a medical negligence 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 him properly, failed to
search him for contraband before restraining him, and failed to
monitor him.
     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


                                 -53-
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 to 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 section 13–212. But that fact is not determinative. The
cardinal principle of statutory interpretation is to ascertain and give
effect to the intent of the legislature. J.S.A. v. M.H., 224 Ill. 2d 182,


   10
     In Heastie, a motion to dismiss based on the statute of limitations was
raised, but that issue was never reached by this court or the courts below.

                                   -54-
196 (2007). We must presume that the legislature did not intend
absurdity, inconvenience or injustice. J.S.A., 224 Ill. 2d at 210. In my
view, interpreting the medical malpractice statute of repose as the
majority does leads to absurd and unjust results which were never
intended by the legislature. Because the majority interprets the statute
using a “but for” test that fails to take into account the distinction
between ordinary negligence and medical negligence, leading to
absurd results, I must reject it.
    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 Anne 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
staffpersons, 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 alleged 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.

                                 -55-
    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 section 13–212(b). In light of this determination, I would not
consider plaintiff’s alternative argument that the tolling provision
contained in subsection (c) of section 13–212 is applicable in this case.

    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 section 13–212(b) of the Code. I do not agree,
however, with the majority’s finding that because Robert (the child
allegedly injured in this case) was a fetus at the time of the occurrence
that led to his injury, the eight-year period of repose did not begin to
run until he was born and had a right to pursue his claim in court. This
finding leads the majority to conclude that Robert’s claim was timely

                                  -56-
filed and reverse the dismissal of count III of plaintiffs’ amended
complaint. For the reasons that follow, I believe that the plain
language of section 13–212 makes Robert’s claim untimely. As such,
I would affirm the dismissal of count III of plaintiffs’ amended
complaint and must respectfully dissent.
     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.
Slip op. at 21. According to the appellate court, the repose period
ended eight years after the injury occurred. Slip op. at 21-22.11 As a
result, count III of plaintiffs’ complaint was not timely filed. Slip op.
at 21-22. The majority disagrees with this analysis, finding that the
word “accrued,” as used in section 13–212, is ambiguous.
     Analyzing the term “accrued” for the purposes of sections
13–212(b) and (c), the majority finds that it means that facts exist that
authorize the bringing of a cause of action or that the claim has come
into being as an enforceable claim or right. Slip op. at 26. After noting
that an injury to a fetus does not accrue until birth, the majority
acknowledges that when a fetus is injured, the occurrence of the injury
and the accrual of the cause of action take place at different times.
Slip op. at 26. Nevertheless, the majority disagrees with the appellate
court that this means that the statute of repose began to run when
Robert’s injury occurred, while he was in utero.
     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. Slip op. at 27. In this case, the repose period
provided in section 13–212(b) is eight years. Robert’s injury occurred
over 8½ years before the count at issue here was filed. Unless the
tolling provision provided by section 13–212(c) applies, Robert’s
cause of action cannot be maintained. Section 13–212(c) only applies,
though, if it can be shown that Robert was under some sort of


   11
     It is not controverted that Robert’s alleged injury occurred on May 25,
1995, when his mother ingested selenium while he was in utero. He was born
on January 5, 1996. Count III of plaintiffs’ amended complaint was filed on
December 22, 2003.

                                   -57-
disability other than minority when he was born, the time which even
the majority acknowledges Robert’s injury accrued. The majority
never suggests, however, that Robert was under any disability other
than age.
     The majority asserts that it would be repugnant to basic notions of
fundamental fairness 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. Slip op. at 31-32. The majority relies on case law
stating 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 v. Alexian Brothers Hospital, 178 Ill. 2d 445,
454-55 (1997). In light of this, the majority finds no clear bar to
Robert’s suit in section 13–212 and believes it farfetched that the
legislature worded this statute in order to provide different time limits
for children injured in utero and children injured after birth. Slip op.
at 31.
     The majority acknowledges, however, that this court has already
spoken to the purpose behind the General Assembly’s enactment of
section 13–212. In Hayes v. Mercy Hospital & Medical Center, 136
Ill. 2d 450 (1990), this court found that the General Assembly limited
the time period in which a party could bring a suit for medical
malpractice in response to what it perceived as a medical malpractice
insurance crisis. Section 13–212 created definite time periods in which
causes of action could be filed in order to prevent extended exposure
of physicians, increase the ability of insurance companies to predict
liability, and assist in reducing health-care malpractice insurance
premiums. Hayes, 136 Ill. 2d at 458. The legislature specifically
enacted section 13–212 to respond to a perceived medical malpractice
insurance crisis by preventing extended liability exposure, increasing
predictability, and assisting in reducing health-care malpractice
premiums.
     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,
section 13–212(c), provides that the repose period provided in section
13–212(b) can be tolled, but only for those persons who, “at the time

                                   -58-
the cause of action accrued, [are] under a legal disability other than
being under the age of 18 years.” 735 ILCS 5/13–212(c) (West 2006).
At the time of Robert’s birth–when his cause of action accrued–he
was not under a legal disability other than age. The statutory language
is clear that the tolling takes place only where a potential claimant is
under a legal disability other than being under the age of 18 years.
Because no such showing is made, the statue of repose is not tolled.
     By invoking the public policy that courts need carefully guard the
rights of minors, the majority renders meaningless the provision that
section 13–212(b) be tolled for those under legal disabilities other than
being under the age of 18 years. This is improper considering that it
is a cardinal rule of statutory construction that a statute should be
construed, wherever possible, such that no word, clause, or sentence
is rendered meaningless or superfluous. Sylvester v. Industrial
Comm’n, 197 Ill. 2d 225, 232 (2001). The majority’s interpretation
does just that, though, rendering mere surplusage the language “other
than being under the age of 18 years.” See Arnold v. Board of
Trustees of the County Employees’ Annuity & Benefit Fund, 84 Ill. 2d
57, 62 (1981) (where this court indicated a strong presumption
against finding statutory language to be mere surplusage). It cannot
be that the legislature intended the rights of minors to supersede other
policy goals in a statutory provision which specifically excludes them.
The plain and unambiguous language of the statute provides that for
the repose period to be tolled it must be shown that Robert was under
a legal disability other than being under the age of 18 years at his
birth. Interpreting the statute in this way adheres to the rules of
statutory construction and properly gives the clause “other than being
under the age of 18 years” meaning in this case.
     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.

                                   -59-
See Ultsch v. Illinois Municipal Retirement Fund, No. 102232, at 10
(August 7, 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.




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