dissenting:
As the majority points out, the “ultimate issue” before this court is whether the plaintiffs complaint constitutes an “action for damages for injury or death *** arising out of patient care” within section 8 — 101(b) of the Act. I agree with the majority that section 8 — 101(b) should be given the same effect as the identical language of section 13 — 212 of the Code of Civil Procedure, for all of the enumerated reasons. However, the majority’s treatment of Brucker and Orlak is incomplete and overlooks both the spirit and the language of those cases. As a result, the majority today effectively applies a new standard that is a significant departure from our precedents and those of the appellate court. For these reasons, I respectfully dissent.
As the majority notes, this court first discussed the meaning of section 13 — 212’s “arising out of patient care” language in Brucker v. Mercóla, 227 Ill. 2d 502 (2007). In my view, a full discussion of that case is warranted. There, Anna Brucker and her husband filed a two-count medical malpractice action against Dr. Joseph Mercóla and his practice. The complaint alleged that, while she was pregnant, Brucker sought advice from Dr. Mercóla regarding an allergy problem. Mercóla, a doctor of osteopathic medicine, prescribed an L-glutamine supplement. As a service to his patients, Mercola’s office sold many nutritional supplements, including L-glutamine. Mercóla testified in his deposition that his customers were almost all patients, but that sometimes one of his patients would refer a friend or family member to make a purchase. When Brucker tried to purchase the L-glutamine from Mercóla, however, she was given a bottle that instead contained selenium. Later, it was discovered that one of Mercola’s employees had accidentally filled several L-glutamine bottles with selenium, because the selenium was unlabeled in the storage room and left where L-glutamine was typically kept. Brucker followed Mercola’s dosage instructions, believing the supplement to be L-glutamine, and she ingested a toxic dose of selenium. Brucker, 227 Ill. 2d at 506-09.
While the action was pending, Brucker amended her complaint to include a third count, brought on behalf of her minor son, Robert Brucker. Count III alleged that Robert, with whom Anna was pregnant at the time of the incident, had been poisoned in útero when Anna ingested the selenium. The defendants moved to dismiss the amended count, however, arguing that it was barred by section 13 — 212(b)’s statute of repose. Id. Section 13— 212(b) provides, in pertinent part:
“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 ***.” 735 ILCS 5/13 — 212(b) (West 2006).
The plaintiffs acknowledged that count III had been filed more than eight years after the alleged injury to Robert, but they argued, inter alia, that the complaint was one alleging simple negligence, not an injury “arising out of patient care.”
In beginning our analysis, this court noted that “when a cause of action is filed against a physician or other covered medical provider, the legal theory upon which the plaintiff styles his or her claim will not govern whether section 13 — 212 applies.” Brucker, 227 Ill. 2d at 515. We referred to Hayes v. Mercy Hospital & Medical Center, 136 Ill. 2d 450 (1990), in which this court discussed the purpose and intent behind section 13 — 212. In both Hayes and Brucker, the court acknowledged that the statute of repose was enacted in response to what the legislature viewed as a medical malpractice insurance crisis. The statute 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. [Citation.] This increased ability to predict liability was meant to assist in reducing health-care malpractice insurance premiums.” (Internal quotation marks omitted.) Brucker, 227 Ill. 2d at 515 (quoting Hayes, 136 Ill. 2d at 457-58). In Hayes, this court concluded that the legislative intent could be advanced only if the statute was read in such a way that it limited exposure to liability for injury or death arising out of patient care under all theories of liability. Hayes, 136 Ill. 2d at 459; see also Brucker, 227 Ill. 2d at 515-16.
The court in Brucker also contrasted section 13 — 212 with section 2 — 622 of the Code of Civil Procedure, which imposes various pleading requirements for “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); Brucker, 227 Ill. 2d at 516-17. We noted that section 13— 212 is broader than section 2 — 622, such that there are some actions to which section 13 — 212 applies but section 2 — 622 does not. As the court later explained, “all medical malpractice claims involve injuries arising out of patient care, but not all injuries arising out of patient care were by reason of medical malpractice.” Id. at 516-17, 532. Therefore, the court did not consider the portions of the parties’ arguments that debated whether the Bruckers’ complaint alleged “malpractice.” Id. at 518.
Having concluded that “arising out of patient care” is not synonymous with “medical malpractice,” we looked to the plain and established meaning of “arising out of’:
“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” ’ [citation] 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).” Brucker, 227 Ill. 2d at 521-22.
Because “arising out of’ has a “set meaning in the law,” we looked to how Illinois courts have construed that phrase in other contexts. Specifically, “[t]he phrase ‘arising out of is construed most often in workers’ compensation proceedings.” Brucker, 227 Ill. 2d at 521-22. 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 (West 2006). We noted that, in that context:
“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. [Citation.] 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.” (Internal quotation marks omitted.) Brucker, 227 Ill. 2d at 522 (quoting Sisbro, Inc. v. Industrial Comm’n, 207 Ill. 2d 193, 203-04 (2003)).
Importantly, we noted that “arising out of’ does not encompass mere “but for” causation under the Workers’ Compensation Act. Thus, it is not sufficient to show only that an employee would not have been at the location of the injury but for his or her employment, nor is it sufficient to show only that the accident would not have occurred but for the fact that the employment placed the claimant in the position “in which he was injured by a neutral (neither personal nor related to employment) force.” Brucker, 221 Ill. 2d at 522-23 (citing USF Holland, Inc. v. Industrial Comm’n, 357 Ill. App. 3d 798, 803 (2005)).
We acknowledged that in some other contexts, “arising out of” has been linked with “but for” causation. However, we noted that those contexts had generally used “arising out of’ in conjunction with “relating to” and “in connection with,” such as in parts of the Pension Code {e.g., 40 ILCS 5/5 — 227 (West 2006)), or they had involved insurance policies that must be construed broadly in favor of coverage (see, e.g., State Automobile Mutual Insurance Co. v. Kingsport Development, LLC, 364 Ill. App. 3d 946, 953-54 (2006)). Turning back to section 13 — 212, the Brucker court rejected a definition of “arising out of’ that equated to mere “but for” causation:
“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 he 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. 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) [(a workers’ compensation case)]), 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.” Brucker, 227 Ill. 2d at 523-24.
Thus, in Brucker, this court adopted the same construction of “arising out of” that courts in Illinois have used in workers’ compensation proceedings for over 90 years. Indeed, the majority emphasized its reliance on workers’ compensation proceedings when it responded to the specially concurring justices’ alternative approaches, noting:
“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. Moreover, 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.” Id. at 524 n.4.
Turning to the facts in Brucker, we concluded that “there is no question” that the Bruckers alleged an injury arising out of patient care. In rejecting the argument that the connection was mere “but for” causation, the court opined, “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. Mercóla sold to her to treat a medical condition that Dr. Mercóla had diagnosed.” Id. at 524-25.
Orlak v. Loyola University Health System, 228 Ill. 2d 1 (2007), decided the same day as Brucker, is also instructive. There, the plaintiffs complaint included counts alleging constructive fraud, medical negligence, medical battery, and ordinary negligence. Orlak, 228 Ill. 2d at 4-6. The counts all stemmed from the alleged failure of the defendant hospital, Loyola University Health System, to timely inform the plaintiff that she may have contracted hepatitis C from a blood transfusion years earlier. According to the complaint, the plaintiff was treated by Loyola in 1989 following a work-related accident, and during her hospitalization she was given a blood transfusion. At the time, no definitive test existed to determine the presence of viral hepatitis in blood. In 1990, Loyola contacted the plaintiff and recommended that she be tested for human immunodeficiency virus (HIV). Plaintiff was tested, and the test results were negative for HIV In 2000, the hospital again contacted the plaintiff and notified her that her blood donor had recently tested positive for the hepatitis C virus, and it urged her to be tested. The plaintiff tested positive for hepatitis C. Id.
In her ordinary negligence count, which was at issue before this court, the Orlak plaintiff claimed that Loyola knew or should have known by March 1997 that the plaintiff needed to be tested for hepatitis C. She alleged a continuing breach of duty for every day thereafter that the hospital failed to notify her. Id. at 5-6. Loyola argued that the plaintiffs complaint was barred in its entirety by section 13 — 212. The circuit court dismissed the complaint, and the plaintiff appealed, arguing that her ordinary negligence claim was not “arising out of patient care.” Id. at 6.
This court found that the ordinary negligence count did allege injuries “arising out of patient care,” subject to the statute of repose in section 13 — 212. In doing so, we rejected the plaintiffs argument that “by using the phrase ‘arising out of patient care,’ the legislature intended the statute of repose to govern claims based on events that involve actual patient care.'” (Emphasis added.) Id. at 9. As we had done in Brucker, we noted in Orlak, that the legislature intended “arising out of patient care” to encompass a “much broader range of claims” than simple medical malpractice. Id. at 12. We further noted:
“It is clear that the legislature intended the statute of repose to operate in a very broad manner and it has been interpreted in that manner by courts addressing the issue. The question is not whether the plaintiff has alleged medical negligence or ordinary negligence. Rather, the sole issue is whether the plaintiff’s claim arose from patient care.” Id. at 14.
We also relied on Brucker’s definition of “arising out of patient care” as “simply requiring a causal connection between the patient’s medical care and the injury,” noting that it was not mere “but for” causation, but “ ‘clearly covers any injuries that have their origin in, or are incidental to, a patient’s medical care and treatment.’ ” Id. at 15 (quoting Brucker, 227 Ill. 2d at 523-24).
Applying this construction to the facts of Orlak, we acknowledged that the plaintiffs allegation of failure to notify did “not involve the provision of medical care.” Orlak, 228 Ill. 2d at 16. “However,” we held, “the omission itself cannot be viewed in a vacuum. Plaintiffs allegations of a duty to notify her and Loyola’s alleged violation of that duty flows from the blood transfusion she received during her 1989 hospitalization. *** It is apparent here that there is a causal connection between plaintiffs 1989 hospitalization and blood transfusion and her current claim against Loyola.” Id. at 16-17. We also reiterated that the purpose of the statute of repose in section 13 — 212 is to curtail “potentially open-ended liability for health-care providers” and “reduce the cost of medical malpractice insurance and to assure its continued availability to medical practitioners.” Id. at 17. We noted, as we had in Brucker, that construing “arising out of patient care” narrowly would be contrary to that purpose. Id.
Both Brucker and Orlak relied on three cases from our appellate court in reaching their conclusions, and those cases also inform my analysis. First, in Miller v. Tobin, 186 Ill. App. 3d 175 (1989), the plaintiff filed a claim alleging that a psychiatrist violated the Mental Health and Developmental Disabilities Confidentiality Act (now 740 ILCS 110/1 et seq. (West 2006)) when the psychiatrist revealed confidential information to the plaintiffs wife. Miller, 186 Ill. App. 3d at 176. The appellate court held that “arising out of’ is “broad and generally means ‘originating from,’ ‘growing out of,’ or ‘flowing from.’ ” Id. at 177. The court also noted that section 13 — 212 “is a general limitations section designed to apply to all cases against physicians arising out of patient care.” Id. Thus, the court found that because the plaintiff and his wife had consulted the psychiatrist for medical issues, and because the disclosure occurred as part of the wife’s treatment, section 13 — 212 applied to bar the claim. Id. at 178.
In Walsh v. Barry-Harlem, Corp., 272 Ill. App. 3d 418 (1995), the plaintiff brought a consumer fraud complaint, alleging that the doctor intentionally falsified test results and misrepresented that the plaintiff needed to have a cataract removed and a new lens implanted. Walsh, 272 Ill. App. 3d at 420-21. Although the count at issue did not include any injury caused by the actual surgery, the court nonetheless held that it was “arising out of patient care,” noting that “the plaintiffs allegations of misconduct were inextricable from the defendants’ diagnosis and treatment of his eyes.” Id. at 425.
Finally, in Cammon v. West Suburban Hospital Medical Center, 301 Ill. App. 3d 939 (1998), the plaintiff sought damages for the death of her husband following surgery. Although her complaint contained several counts alleging medical malpractice, count V of the complaint alleged spoliation of evidence based on the hospital’s destruction of certain records related to the incident. The trial court dismissed count V as time-barred under section 13 — 212(a), but the appellate court reversed, citing Miller. Common, 301 Ill. App. 3d at 950. This court in Brucker questioned Common’s analysis, which focused on the breach of duty alleged by the plaintiff rather than whether the complaint alleged an injury that originated from, grew out of, or flowed from her husband’s care and treatment, but we opined, “[rjegardless of whether Common’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 plaintiffs 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.” Brucker, 227 Ill. 2d at 521.
Brucker, Orlak, and the appellate court cases cited therein make it clear that “arising out of patient care” is given broad effect in Illinois. Although it does not mean mere “but for” causation, it is not limited to allegations that a medical practitioner breached a medical standard of care, nor is it limited to injuries caused directly by the treatment of a patient. Thus, injuries caused by the mistake of a non-medically-trained assistant in selling nutritional supplements (as in Brucker), by the failure of a hospital to notify a former patient of the need for testing (as in Orlak), by the disclosure of confidential information during the treatment of another patient (as in Miller), or by the deliberate falsification of test results (as in Walsh) have all been deemed to be “arising out of patient care.” As we have stated, the standard incorporates “any injuries that have their origin in, or are incidental to, a patient’s medical care and treatment.” Orlak, 228 Ill. 2d at 15; Brucker, 227 Ill. 2d at 523-24.
Although the majority acknowledges our broad interpretation of “arising out of patient care,” it nonetheless concludes that plaintiffs injuries in this case do not arise out of patient care because “Kaufmann’s injury arose out of Dr. Schroeder’s sexual assault and not any medical care she received from him.” 241 Ill. 2d at 201. This conclusion overlooks the fact that the alleged sexual assault undoubtedly had its “origin in” or was “incidental to” Schroeder’s medical care and treatment of plaintiff. Schroeder was Kaufmann’s obstetrician-gynecologist, whom Kaufmann consulted during her pregnancy. As part of her care and treatment, Kaufmann was hospitalized, and during her hospitalization, she was treated by Schroeder. According to her complaint, Schroeder sedated plaintiff “during an unnecessary exam and/or procedure which did not require sedation.” It was only then, while plaintiff was hospitalized and sedated, that the alleged sexual assault occurred, perpetrated by the doctor who performed the allegedly unnecessary exam.
Critically, Kaufmann was not injured by a doctor or patient who simply happened across her during her hospitalization. She was not the victim of a random criminal attack that coincidentally occurred while she was at the hospital. This is not a case of mere “but for” causation. If, as the concurring justices suggest, the only connection between her patient care and her injury was that “ ‘but for’ being in the hospital for the treatment, she would not have been in the place where the alleged assault occurred” (241 Ill. 2d at 203 (Freeman, J., specially concurring, joined by Thomas and Karmeier, JJ.)), I would agree that her injuries were not arising out of patient care. But that is not the case before us. According to Kaufmann’s complaint, Schroeder consulted with Kaufmann as part of Kaufmann’s patient care. He diagnosed a urinary problem as part of her patient care. He hospitalized her as part of her patient care. He informed her that an examination was necessary as part of her patient care, and he sedated her under the guise of her patient care. The whole of Schroeder’s control over plaintiff and his ability to commit the allegedly deviant sexual acts were a direct result of his actual and pretextual treatment of her, and her injuries flowing from those acts are injuries “arising out of patient care.”
The majority notes that “[t]he sexual assault, itself, was not medical care, nor was there even any pretense that Dr. Schroeder’s sexual acts were necessitated by, or in any way related to, the medical care he was providing to Kaufmann.” 241 Ill. 2d at 201. However, as we held in Orlak, the acts or omissions alleged to have caused the injury “cannot be viewed in a vacuum” (Orlak, 228 Ill. 2d at 16-17), and we have consistently rejected such a narrow view of a plaintiffs complaint. In Brucker, we rejected the plaintiffs argument that the mislabeling of nutritional supplements for sale was not patient care, holding that the plaintiff was injured because she accepted a prescription from Dr. Mercóla as part of her treatment and she followed his instructions with regard to that prescription. In Orlak, we rejected the plaintiffs argument that a violation, eight years after her treatment had ended, of an ongoing administrative duty to notify her was not “arising out of patient care,” holding that the duty to notify arose only because she had earlier received a blood transfusion as part of her treatment. In Walsh, which we endorsed in both Brucker and Orlak, the court rejected the plaintiffs argument that the falsification of test results perpetrated to justify the performance and billing of a medically unnecessary procedure was not “arising out of patient care,” holding that because the plaintiff had consulted the defendants for eyecare, the fraud was “inextricable” from his care and treatment.
In each of these cases, this court refused to narrow its analysis of the plaintiffs’ claims to include only the particular act or omission alleged to have caused the injury, instead examining the totality of the circumstances leading to the injury to determine whether it had its “origin in” or was “incidental to” the patient’s care and treatment. Yet in this case, the majority simply concludes that “[t]he sexual assault, itself, was not medical care.” If this alone is enough to remove an injury from the statute of repose in section 13 — 212, Brucker should be reversed because the labeling and sale of nutritional supplements, itself, was not medical care. Under the rule as the majority today applies it, Orlak, Miller, and Walsh are all likewise of questionable continuing validity.
Finally, I note that even if I agreed with the majority’s conclusion that the sexual assault of Kaufmann can be divorced from its circumstances and was not incidental to her treatment, several of plaintiff’s counts against Jersey Community Hospital should nonetheless be considered “arising out of patient care.” In her amended complaint, plaintiff seeks damages not only for the battery, but for vicarious liability for the unnecessary sedation, unnecessary medication, unnecessary exam or procedure, and lack of informed consent for that procedure that she alleges preceded the battery. Even under the majority’s narrow view of “arising out of patient care,” these acts, unlike sexual assault, are all “medical care” in and of themselves. However, the majority dismisses plaintiffs argument on these points, opining that “the harm resulted from the sexual assault,” and the unnecessary medical treatment was “simply a means by which Schroeder was able to accomplish his sexual assault on Kaufmann.” 241 Ill. 2d at 201. According to the majority, then, it is the motives of the physician that determine whether the acts are “arising out of patient care.” Under such a rule, the same intentional acts alleged by the same plaintiff under the same circumstances may have different results depending on the mental state of the actor. The problems with this approach are manifest. For example, taken together with Walsh, this conclusion means that if Schroeder had performed the unnecessary procedure so that he could illegally bill Kaufmann for the service, as was the allegation in Walsh, then his acts would be “arising out of patient care,” but because he allegedly performed them so that he could assault her, they are not.
In summary, the majority’s holding in this case represents a striking and inexplicable departure from our established precedents in Brucker and Orlak, as well as those of the appellate court. By focusing exclusively on the particular mechanism of the injury, something we have consistently refused to do, the majority reaches a result that contravenes the legislative intent that section 13 — 212 be construed broadly, an intent we have repeatedly reaffirmed. Where, as here, the plaintiffs injury occurred during the course of treatment and at the hands of the doctor performing that treatment, I would hold that it was “arising out of patient care.” For these reasons, I respectfully dissent.
CHIEF JUSTICE KILBRIDE joins in this dissent.