Statute of Limitations/Repose (injury to fetus in utero) - March 13, 2006

In Brucker v. Mercola, a case Jennifer Lowis and I have been defending, the plaintiff/mother went to see Dr. Mercola for an allergy consultation. Dr. Mercola was aware that the patient was pregnant and recommended a supplement for her allergies. His office dispensed the wrong supplement which was allegedly toxic to the mother and the fetus. Over eight years after the incident, the mother filed a claim on behalf of the child (a claim had been pending on her own behalf for years prior). We filed a motion to dismiss the child's claim as untimely. The court initially denied our motion to dismiss the claim on behalf of the child, but then reversed itself in response to a motion to reconsider and agreed with our position that the case was filed too late.

Issue: when does the statute of limitations/repose begin to run for an injury that occurs in utero (assuming that the child is not born profoundly mentally disabled)?

Summary of Arguments: We argued that the 8-year statute of repose in Section 13-212(b), which applies to all minors in medical malpractice actions, governed this lawsuit. The plaintiff argued that being a fetus is a "legal disability" pursuant to Section 13-212(c) and tolls the statute of repose until the fetus is born. Our response was that unless the child is born with a "legal disability other than minority" (i.e., born severely mentally/physically disabled), then the tolling provisions in 212(c) do not apply. The court agreed.

Holding / Bottom Line: the 8-year statute of repose in Section 13-212(b) begins to run on the date of the alleged negligence and not 8 years from the date of the child's birth. Being a fetus does not, in and of itself, toll the 8-year statute of repose for minors in medical malpractice lawsuits.