Brucker v. Mercola

• Decision Date: 28 December 2007
• Docket Number: No. 102440.,102440.
• Citation: 227 Ill.2d 502,886 N.E.2d 306
• Parties: 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.
• Court: Illinois Supreme Court

886 N.E.2d 306

227 Ill.2d 502

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.

No. 102440.

Supreme Court of Illinois.

December 28, 2007.

Rehearing Denied March 24, 2008.

Brian Murphy, of Hofeld & Schaffner, Chicago, for appellants.

Jennifer A. Lowis, Joan M. Kubalanza, Jenny O. Blake, Deborah M. O'Brien, Mehreen S. Sherwani, of Lowis & Gellen, L.L.P., Chicago, for appellees.

OPINION

Chief Justice THOMAS delivered the judgment of the court, with 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, 300 Ill.Dec. 875, 845 N.E.2d 764). 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:

"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,

(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 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)). Thir...