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 plaintiffs 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.’ ” 227 Ill. 2d at 521. 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.” 227 Ill. 2d at 523. 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.” 227 Ill. 2d at 523-24.
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 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 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 plaintiffs 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., Common 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 Common. The plaintiff in Common 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:
“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 Common, 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.” 227 Ill. 2d at 521. What the majority fails to acknowledge, however, is that the Common 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 plaintiffs medical treatment. See 227 Ill. 2d at 523-24. Clearly then, contrary to the majority’s assertions, Common 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 útero, were based on Pierce’s failure to fill containers correctly and, as such, did not arise from medical negligence associated with Dr. Mercóla’s care and treatment of Anna Marie. Plaintiffs contend, therefore, that the trial court erred when it 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 plaintiffs 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 “[wjhether a hospital patient should be restrained involves the exercise of medical judgment” but “[wjhether 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 “plaintiffs failure-to-search claim *** falls within the category of ordinary negligence” (Heastie, 226 Ill. 2d at 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 plaintiffs 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, 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. Mercóla and became his patient. It is also undisputed that, after examining Anna Marie, Dr. Mercóla 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 staff persons, 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. Mercóla 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.
This case is distinguishable from Stiffler because, here, the facts indicate that Dr. Mercóla 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. Mercóla, 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. Mercóla 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 plaintiffs alternative argument that the tolling provision contained in subsection (c) of section 13 — 212 is applicable in this case.
10In 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.