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 (227 Ill. 2d at 524 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 Bmckers 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 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); Common 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 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 plaintiffs 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 representing]’ ” 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 plaintiffs 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. 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 M[arie’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. Mercóla recommended from any vendor. She was not required to purchase L-glutamine from Dr. Mercóla.
In Common, 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). Common, 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 “preventing] extended exposure of physicians and other hospital personnel to potential liability for their care and treatment of 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. Mercóla 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. Mercóla 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. Mercóla’s medical diagnosis and treatment plan. If Anna Marie had been injured as a result of taking the L-glutamine Dr. Mercóla 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. Mercóla sold most of his supplements to his patients, nonpatients could, and sometimes did, purchase supplements from his office. Unlike the majority (227 Ill. 2d at 527), I believe the relevant question is not whether Dr. Mercóla 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 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. Mercóla did not “recommend” that Anna buy the supplement elsewhere when it was initially out of stock in his office (227 Ill. 2d at 530), 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. Mercóla personally “sold” the supplement to Anna when it was back in stock. See 227 Ill. 2d at 530. Similarly, the majority points out that “plaintiffs did not plead that Dr. Mercola’s distribution of supplements was separate from his medical practice” (227 Ill. 2d at 530-31), 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 (227 Ill. 2d at 536), 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” (227 Ill. 2d at 531), the pleadings in this case did not allege that the supplement sales and 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 Common, 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 Brucker s’ 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” (227 Ill. 2d at 523), 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. 227 Ill. 2d at 533. 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. Mercóla to escape liability for ordinary negligence associated with his sale of supplements when that sale was completely unrelated to the medical care and treatment of his patient, ¡Le., “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. 227 Ill. 2d at 534-36, 535 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. Mercóla 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 (227 Ill. 2d at 534-36) 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.