Larsen v. Provena Hospitals , 2015 IL App (4th) 140255 ( 2015 )

Illinois Official Reports
Appellate Court
Larsen v. Provena Hospitals, 2015 IL App (4th) 140255Appellate Court L. ROYCE LARSEN, M.D., Plaintiff-Appellant, v. PROVENA
Caption HOSPITALS, d/b/a PROVENA UNITED SAMARITANS
MEDICAL CENTER, Defendant-Appellee.–L. ROYCE LARSEN,
M.D., Plaintiff-Appellee, v. PROVENA HOSPITALS, d/b/a
PROVENA UNITED SAMARITANS MEDICAL CENTER,
Defendant-Appellant.
District & No. Fourth District
Docket Nos. 4-14-0255, 4-14-0261 cons.
Filed February 26, 2015
Held In action arising from a staff physician’s complaint alleging that
(Note: This syllabus defendant hospital declined to renew plaintiff’s staff membership and
constitutes no part of the clinical privileges in violation of the Whistleblower Act, the appellate
opinion of the court but court, in response to four questions certified by the trial court for
has been prepared by the interlocutory review pursuant to Illinois Supreme Court Rule 308(a),
Reporter of Decisions answered that a physician is required to plead actual or deliberate
for the convenience of intention to harm his person to state a claim for willful and wanton
the reader.) misconduct under the Hospital Act and Lo, a physician does not state a
claim for willful and wanton misconduct under the Hospital Act and
Lo by pleading actual or deliberate intention to harm his professional
reputation, a physician’s claim for violation of the Whistleblower Act
does not constitute a claim for civil damages subject to peer review
immunity afforded by the Hospital Act, and the payment to a hospital
under assignment from a Medicaid recipient, pursuant to the Social
Security Act, is not funding by the state as defined by the
Whistleblower Act.
Decision Under Appeal from the Circuit Court of Vermilion County, No. 11-L-88; the
Review Hon. Steven L. Garst, Judge, presiding.
Judgment Certified questions answered; cause remanded.
Counsel on Michael K. Goldberg (argued), Robert A. Bauerschmidt, and Jenna E.
Appeal Milaegar, all of Goldberg Law Group, LLC, of Chicago, for L. Royce
Larsen.
David B. Honig (argued) and Christopher C. Eades (argued), both of
Hall, Render, Killian, Heath & Lyman, P.C., of Indianapolis, Indiana,
for Provena Hospitals.
Panel JUSTICE STEIGMANN delivered the judgment of the court, with
opinion.
Justices Knecht and Turner concurred in the judgment and opinion.
OPINION
¶1 In May 2011, defendant, Provena Hospitals, d/b/a Provena United Samaritans Medical
Center (Provena), declined to renew the medical staff membership and clinical privileges of
plaintiff, L. Royce Larsen, M.D. In July 2013, Larsen filed a four-count first amended
complaint, alleging, in part, that Provena retaliated against him in violation of the
Whistleblower Act (740 ILCS 174/1 to 40 (West 2010)). In addition to injunctive relief, Larsen
sought damages as a result of Provena’s “willful and wanton misconduct” in harming his
medical practice and professional reputation.
¶2 In August 2013, Provena filed a motion to dismiss Larsen’s complaint under section 2-615
of the Code of Civil Procedure (Code) (735 ILCS 5/2-615 (West 2012)). Provena alleged that
because Larsen failed to sufficiently plead willful and wanton misconduct as defined by
section 10.2 of the Hospital Licensing Act (Hospital Act) (210 ILCS 85/10.2 (West 2010))–a
provision that provides Provena immunity against civil damages absent such misconduct–he
failed to state a cause of action upon which the trial court could grant relief. Provena also urged
the court to dismiss Larsen’s retaliation claim, alleging that the protections afforded by the
Whistleblower Act did not apply because Larsen failed to allege that Provena received state
funding, which was required to invoke such protection.
¶3 Following a December 2013 hearing, the trial court partially granted Provena’s motion to
dismiss Larsen’s complaint. Relying on Lo v. Provena Covenant Medical Center, 356 Ill. App.
3d 538, 826 N.E.2d 592 (2005), the court found that harm to a physician’s medical practice and
professional reputation was “not the type of harm required to state a claim for willful and
wanton misconduct” under the Hospital Act. The court, however, denied Provena’s motion to
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dismiss Larsen’s retaliation claim, finding, in pertinent part, that (1) the immunity provided by
section 10.2 of the Hospital Act did not preclude that claim and (2) the Whistleblower Act
applied because Provena received state funding in the form of Medicaid payments.
¶4 In May 2014, the trial court certified the following four questions for interlocutory review
pursuant to Illinois Supreme Court Rule 308(a) (eff. Feb. 26, 2010):
“[1.] Is a doctor required to plead actual or deliberate intention to harm his person
[to] state a claim for willful and wanton misconduct under the *** [Hospital Act] ***
and Lo?
[2.] Alternatively, does a doctor state a claim for willful and wanton misconduct
under the *** [Hospital Act] *** and Lo *** by pleading actual or deliberate intention
to harm his professional reputation?
***
[3.] Does plaintiff’s claim for violation of the *** Whistleblower [Act] constitute a
claim for civil damages subject to peer review immunity afforded by the *** [Hospital
Act]?
[4.] Is payment to a hospital under assignment from a Medicaid recipient, pursuant
to the Social Security Act, § 1902(a)(32), ‘funding’ by the State as defined by the ***
[Whistleblower Act]?”
¶5 We answer the first certified question in the affirmative, the remaining three certified
questions in the negative, and remand for further proceedings.
¶6 I. BACKGROUND
¶7 The following facts were gleaned from the supporting record provided pursuant to Illinois
Supreme Court Rule 328 (eff. Feb. 1, 1994).
¶8 In May 2011, Provena–specifically, the Provena Central Illinois Region Board–denied
Larsen’s application to renew his medical staff membership and clinical privileges, which
Provena and its predecessors had renewed essentially biennially for the past 31 years.
¶9 In July 2013, Larsen filed a first amended complaint, alleging that Provena (1) violated the
Whistleblower Act (count I); (2) tortiously interfered with his prospective business advantages
(count II); (3) breached contractual medical-staff bylaws by neither providing a statement of
charges nor conducting a hearing prior to the denial of Larsen’s application (count III); and (4)
violated his fundamental rights (count IV). With the exception of count I, Larsen claimed that
Provena’s denial was “willful and wanton” because it violated contractual bylaws and
tarnished his unblemished reputation as a general surgeon and physician. In count I, Larsen
claimed that Provena denied his application to renew his clinical privileges in retaliation for
reports he made to government agencies that revealed Provena’s violations of various state and
federal laws. In his prayer for relief, Larsen sought (1) declaratory and injunctive relief; (2)
economic, consequential, and punitive damages; and (3) attorney fees.
¶ 10 In August 2013, Provena filed a motion to dismiss Larsen’s complaint under section 2-615
of the Code. Provena claimed that because Larsen did not sufficiently plead willful and wanton
misconduct under section 10.2 of the Hospital Act, Larsen failed to state a cause of action upon
which the trial court could grant relief. Provena also urged the court to dismiss Larsen’s
retaliation claim, asserting that because Larsen failed to allege that Provena received state
funding, he was not a protected employee as defined by the Whistleblower Act.
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¶ 11 In response, Larsen argued that because he alleged harm to his medical practice and
professional reputation as a result of Provena’s denial, which (he asserts) occurred without a
hearing, in violation of the contractual medical-staff bylaws, he sufficiently pleaded willful
and wanton misconduct as defined by section 10.2 of the Hospital Act. Larsen also averred that
he sufficiently pleaded violations of the Whistleblower Act.
¶ 12 Following a December 2013 hearing, the trial court entered a March 19, 2014, order,
dismissing counts II and IV of Larsen’s first amended complaint. (At the December 2013
hearing, Provena informed the court that it was not seeking to dismiss Larsen’s prayer for
injunctive relief as to count III.) Relying on this court’s decision in Lo, the trial court found that
harm to a physician’s medical practice and professional reputation “was not the type of harm
required to state a claim for willful and wanton misconduct” under section 10.2 of the Hospital
Act. The court, however, denied Provena’s motion to dismiss Larsen’s retaliation claim,
finding, in pertinent part, that (1) the immunity provided by section 10.2 of the Hospital Act
did not preclude that claim and (2) the Whistleblower Act applied because Provena received
state funding in the form of Medicaid payments.
¶ 13 That same day, the trial court entered an order pursuant to Rule 308(a), finding the
existence of substantial grounds for differences of opinion on questions of law and that an
immediate appeal of its order may materially advance the termination of the litigation. The
court sua sponte granted (1) Larsen leave to appeal the first two certified questions (case No.
4-14-0255) and (2) Provena leave to appeal the final two certified questions (case No.
4-14-0261). In April 2014, the parties timely filed their respective applications for leave to
appeal pursuant to Illinois Supreme Court Rule 308(b) (eff. Feb. 26, 2010). Later that month,
this court allowed both applications, and, on our own motion, we have consolidated these
cases.
¶ 14 II. ANALYSIS
¶ 15 A. The Standard of Review
¶ 16 “The scope of review in an interlocutory appeal brought under Rule 308 is limited to the
certified question.” Spears v. Association of Illinois Electric Cooperatives, 2013 IL App (4th)
120289, ¶ 15, 986 N.E.2d 216. A reviewing court should restrict its review to certified
questions of law and decline to answer when the ultimate disposition depends upon resolution
of factual predicates. Id. “With rare exceptions, we do not expand the question under review to
answer other, unasked questions.” Giangiulio v. Ingalls Memorial Hospital, 365 Ill. App. 3d
823, 829, 850 N.E.2d 249, 255 (2006). “A certified question pursuant to Rule 308 is reviewed
de novo.” Spears, 2013 IL App (4th) 120289, ¶ 15, 986 N.E.2d 216.
¶ 17 B. Section 10.2 of the Hospital Act
¶ 18 Because a majority of the certified questions posed concern section 10.2 of the Hospital
Act, we provide the language of that statutory provision, as follows:
“Because the candid and conscientious evaluation of clinical practices is essential to
the provision of adequate hospital care, it is the policy of this State to encourage peer
review by health care providers. Therefore, no hospital and no individual who is a
member, agent, or employee of a hospital, hospital medical staff, hospital
administrative staff, or hospital governing board shall be liable for civil damages as a
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result of the acts, omissions, decisions, or any other conduct, except those involving
[willful] or wanton misconduct, of a *** credential committee, peer review committee,
or any other committee or individual whose purpose, directly or indirectly, is *** for
improving patient care within a hospital, or the improving or benefiting of patient care
and treatment, whether within a hospital or not, or for the purpose of professional
discipline including institution of a summary suspension in accordance with Section
10.4 of this Act and the medical staff bylaws. *** For the purposes of this Section,
‘[willful] and wanton misconduct’ means a course of action that shows actual or
deliberate intention to harm or that, if not intentional, shows an utter indifference to or
conscious disregard for a person’s own safety and the safety of others.” (Emphasis
added.) 210 ILCS 85/10.2 (West 2010).
¶ 19 C. The Certified Questions in Case No. 4-14-0255
¶ 20 The trial court certified the following two questions for interlocutory review:
“[1.] Is a doctor required to plead actual or deliberate intention to harm his person
[to] state a claim for willful and wanton misconduct under the *** [Hospital Act] ***
and Lo?
[2.] Alternatively, does a doctor state a claim for willful and wanton misconduct
under the *** [Hospital Act] *** and Lo *** by pleading actual or deliberate intention
to harm his professional reputation?”
¶ 21 1. This Court’s Decision in Lo
¶ 22 In Lo, 356 Ill. App. 3d at 538, 826 N.E.2d at 595, the plaintiff sued the defendant for breach
of contract, alleging that the defendant involuntarily restricted his clinical privileges without a
hearing, thereby violating the contractual agreement between the parties as provided by the
medical-staff bylaws. The defendant later filed a motion to dismiss the plaintiff’s suit under
section 2-619(a)(9) of the Code (735 ILCS 5/2-619(a)(9) (West 2002)), claiming, in pertinent
part, immunity from civil damages under section 10.2 of the Hospital Act. Lo, 356 Ill. App. 3d
at 538-39, 826 N.E.2d at 595. The trial court later granted the defendant’s motion to dismiss.
Id. at 539, 826 N.E.2d at 595.
¶ 23 This court affirmed the trial court’s judgment, noting that section 10.2 of the Hospital Act
provided a statutory definition of the phrase “willful and wanton misconduct” that differed
from the “ordinary definition” of “great carelessness or gross negligence.” Id. at 544-45, 826
N.E.2d at 599-600. We continued our analysis, as follows:
“In this case *** we are dealing not with the ordinary meaning of ‘[willful] and
wanton misconduct’ but with a statutory definition. ‘In construing statutes the ordinary,
usual[,] and commonly accepted definitions of the words employed therein are to be
taken as the correct definitions of such words, unless the statute gives special
definitions to the contrary ***.’ (Emphasis added.) Wahlman v. C. Becker Milling Co.,
279 Ill. 612, 622, 117 N.E. 140, 144 (1917). Plaintiff has alleged no facts, and has
offered no evidence, from which we could reasonably infer that defendant ‘actual[ly]
or deliberate[ly] inten[ded] to harm’ him. See 210 ILCS 85/10.2 (West 2002). His ‘own
safety’ was never at issue in this case. See 210 ILCS 85/10.2 (West 2002). Because
plaintiff’s cause of action does not fit within the specialized definition of ‘[willful] and
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wanton misconduct’ in section 10.2, the statute bars him from recovering damages for
defendant’s breach of contract.” Id. at 545, 826 N.E.2d at 600.
¶ 24 2. This Court’s Response to the Certified Questions
¶ 25 Larsen argues that the trial court’s interpretation of the phrase “willful and wanton
misconduct” disregards the two-part definition contained within section 10.2 of the Hospital
Act. Specifically, Larsen contends that the court incorrectly conflated “the issue of utter
indifference or conscious disregard for ‘a person’s own safety or the safety of others’ with the
issue of actual or deliberate intention ‘to harm,’ making allegations of physical harm required
*** to show willful and wanton misconduct under section 10.2” of the Hospital Act. Larsen
then asserts that the first definition does not require a showing of a specific type of harm
because “the ‘actual’ or ‘deliberate’ intent of the actor is the primary focus.” We disagree.
¶ 26 “Our primary objective in construing a statute is to ascertain and give effect to the
legislative intent, and the surest most reliable indicator of that intent is the plain and ordinary
meaning of the statutory language itself.” People v. Chapman, 2012 IL 111896, ¶ 23, 965
N.E.2d 1119. When the statutory language is clear and unambiguous, this court will apply the
statute without aid of statutory construction. Id. “In determining the plain meaning of the
statutory terms, we consider the statute in its entirety, keeping in mind the subject it addresses
and the apparent intent of the legislature in passing it.” Id.¶ 27 The legislative objective of section 10.2 of the Hospital Act is to “foster effective
self-policing by members of the medical profession in matters unique to that profession and to
thereby promote the legitimate State interest in improving the quality of health care in Illinois.”
(Internal quotation marks omitted.) Szczerbaniuk v. Memorial Hospital for McHenry County,
180 Ill. App. 3d 706, 711, 536 N.E.2d 138, 142 (1989). In pursuit of that goal, section 10.2
places “limitation[s] on the remedies available to physicians aggrieved by a hospital’s
peer-review process.” Frigo v. Silver Cross Hospital & Medical Center, 377 Ill. App. 3d 43,
68, 876 N.E.2d 697, 720 (2007). Specifically, section 10.2 grants immunity from “civil
damages as a result of the acts, omissions, decisions, or any other conduct” of specific
peer-review committees tasked with the goal of improving patient care. 210 ILCS 85/10.2
(West 2010). An exception to the immunity afforded occurs if the aggrieved physician can
show that the peer-review committee at issue engaged in “ ‘[willful] and wanton
misconduct,’ ” defined as (1) “a course of action that shows actual or deliberate intention to
harm” or (2) “if not intentional, shows an utter indifference to or conscious disregard for a
person’s own safety and the safety of others.” Id.¶ 28 Larsen essentially urges this court to construe the statutory definition of willful and wanton
misconduct into two separate parts. Specifically, that the unintentional harm to a “person’s
own safety” is distinct from the intentional “harm,” which Larsen claims encompasses a loss or
diminution of professional reputation. We reject this construction. Instead, we construe section
10.2 of the Hospital Act in harmony with its clearly stated overarching purpose and conclude
that the unintentional harm–that is, the “utter indifference to or conscious disregard for a
person’s own safety and the safety of others” clarifies the type of intentional “harm” the
legislature contemplated. The parsing that Larsen advocates would render meaningless the
immunity intended by section 10.2 of the Hospital Act given the following unavoidable
consequences that flow from a credentialing committee’s denial of a physician’s application
requesting renewal of clinical privileges.
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¶ 29 A hospital credentialing committee is primarily tasked with determining whether
approving a physician’s hospital privileges for an additional term is in the best interest of the
hospital and its patients. To perform this core function, a credentialing committee will
inevitably deny some renewals for valid reasons. Such action cannot be viewed reasonably as
an unintentional act. The committee members, many of whom may well be physicians
themselves, are presumed to know and accept the consequences of such a denial for the
physician whose privileges are not renewed. As Larsen stated in his July 2013 first amended
complaint, the decision not to renew a physician’s clinical privileges requires mandatory
self-reporting to current and potential employers, providers, and insurers. Such reporting
would–at a minimum–negatively impact the physician’s professional reputation and future
income. In other words, a credentialing committee’s decision not to renew a physician’s
privileges necessarily involves reputational harm to that physician. Indeed, we cannot envision
an instance where such a denial would not result in at least a modicum of such harm in the short
term.
¶ 30 Notwithstanding the aforementioned negative consequences, a credentialing committee’s
decision not to renew a physician’s hospital privileges is precisely the determination that
section 10.2 of the Hospital Act protects. If we were to agree with Larsen that the phrase
“actual or deliberate intention to harm” does not require a showing of a specific type of harm,
the immunity afforded Provena and members of the Provena Central Illinois Region Board
would cease immediately upon the denial of clinical privileges, given that such a
determination, as we have described, would (1) be intentional and (2) undoubtedly result in
some reputational harm to the aggrieved physician. Larsen’s stance also conflicts with the
clearly stated legislative intent of section 10.2 of the Hospital Act to facilitate the “candid and
conscientious evaluation of clinical practices” to improve patient care by encouraging “peer
review by health care providers.” Id. Plainly put, if merely denying a physician hospital
privileges could result in civil liability for the medical facility or members of a credentialing
committee, candid reviews would likely cease.
¶ 31 Larsen asserts that under the trial court’s interpretation of Lo, an aggrieved physician
would be precluded from seeking civil damages under any set of facts unless the harm alleged
was physical harm. Larsen’s assertion is correct, but we reject his claim that the court
incorrectly interpreted Lo. As previously noted, in Lo–a case substantially similar to the instant
case–this court held that absent allegations of intentional physical harm or a showing that the
committee at issue consciously disregarded the aggrieved physician’s safety, the immunity
afforded by that section remains intact. Lo, 356 Ill. App. 3d at 545, 826 N.E.2d at 600.
¶ 32 Essentially, Larsen’s argument is premised on his belief that the legislature–in crafting the
willful-and-wanton-misconduct exception–could not have intended that physical harm only
would overcome the immunity otherwise provided, which would never occur as a result of a
credentialing committee’s decision to deny clinical privileges. This court, however, “will not
depart from the plain language of a statute by reading into it exceptions, limitations[,] or
conditions that conflict with the express legislative intent.” Carver v. Sheriff of La Salle
County, 203 Ill. 2d 497, 507, 787 N.E.2d 127, 133-34 (2003). We find support for our
conclusion in Lo in the legislature’s silence since Lo’s publication.
¶ 33 In Szczerbaniuk, 180 Ill. App. 3d at 710-11, 536 N.E.2d at 141, the Second District
concluded that a prior version of section 10.2 of the Hospital Act did not provide immunity for
individuals “acting only pursuant to an informal delegation of authority by an uninformed
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committee.” As we noted in Lo, 356 Ill. App. 3d at 544, 826 N.E.2d at 599, shortly after the
Second District decided Szczerbaniuk, the legislature amended section 10.2 of the Hospital Act
by adding the words “or individual,” which extended immunity to the acts or omissions of any
individual tasked with internal quality control. See Pub. Act 91-448, § 5 (eff. Aug. 6, 1999).
We also note that at the time the legislature amended section 10.2 of the Hospital Act to
include the phrase “or individual,” it further amended the statute by adding the definition of
willful and wanton misconduct that is at issue in this case. Id.
¶ 34 In the almost 10 years since this court’s decision in Lo, the legislature has not seen fit to
further amend section 10.2 of the Hospital Act. The legislature’s silence implies that–at a
minimum–it is not displeased with our conclusion in Lo that an allegation of reputational harm
does not “fit within the specialized definition of ‘[willful] and wanton misconduct’ in section
10.2 [of the Hospital Act].” Lo, 356 Ill. App. 3d at 545, 826 N.E.2d at 600. Given that the
medical profession is well-represented and influential within the legislative halls of the
General Assembly, we would expect that if our interpretation in Lo of section 10.2 of the
Hospital Act were erroneous, as Larsen contends, legislative action to correct that
misinterpretation would have been forthcoming, just as the legislature acted after
Szczerbaniuk. See Provena Health v. Illinois Health Facilities Planning Board, 382 Ill. App.
3d 34, 45, 886 N.E.2d 1054, 1065 (2008) (“The legislature is presumed to know how courts
have interpreted a statute and may amend the statute if it intended a different construction.”).
¶ 35 Accordingly, we adhere to our decision in Lo and answer the second certified question in
the negative. That answer requires our answer to the first certified question to be in the
affirmative.
¶ 36 D. The Certified Questions in Case No. 4-14-0261
¶ 37 1. This Court’s Scope of Review
¶ 38 Prior to considering the third and fourth certified questions presented in case No.
4-14-0261, we first explain our scope of review.
¶ 39 Citing Bright v. Dicke, 166 Ill. 2d 204, 208, 652 N.E.2d 275, 277 (1995), Provena contends
that “this [c]ourt is not strictly limited by the scope of the questions certified for review” and
“may consider the propriety of an underlying decision in the ‘interests of judicial economy and
the need to reach an equitable result.’ ” Relying on its interpretation of Bright, Provena then
disregards the actual question for review certified by the trial court and purports to then present
the following two issues for our review, as follows:
“I. Whether the trial court erred by denying [Provena’s section] 2-615 motion to
dismiss *** Larsen’s allegations of reputational harm because [the court] found that
the *** [Hospital Act’s] immunity provision did not apply to claims brought under the
*** Whistleblower Act.
II. Whether the trial court erred by denying [Provena’s section] 2-615 motion to
dismiss because it found that [Provena’s] acceptance of payments from Medicare
patients makes it a state-funded hospital, subject to the *** Whistleblower Act.”
Contrary to Provena’s claim, Bright does not permit Provena to disregard the questions
certified by the court and instead rewrite those questions as it sees fit. At most, Bright stands
for the proposition that after answering those questions, this court may go beyond the certified
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questions presented and consider the propriety of the trial court’s underlying order. Bright does
not authorize either ignoring or altering the certified questions.
¶ 40 Accordingly, we will consider the certified questions as presented. If–after considering
each certified question–the “interest of judicial economy and the need to reach an equitable
result” so warrant, we will consider the propriety of the trial court’s underlying order.
¶ 41 2. The Pertinent Portions of the Whistleblower Act
¶ 42 Section 15(b) of the Whistleblower Act outlines the following prohibited activity:
“(b) An employer may not retaliate against an employee for disclosing information
to a government or law enforcement agency, where the employee has reasonable cause
to believe that the information discloses a violation of a State or federal law, rule, or
regulation.” 740 ILCS 174/15(b) (West 2010).
¶ 43 Section 5 of the Whistleblower Act defines employee, as follows:
“ ‘Employee’ means any individual who is employed on a full-time, part-time, or
contractual basis by an employer. ‘Employee’ also includes, but is not limited to, a
licensed physician who practices his or her profession, in whole or in part, at a hospital,
nursing home, clinic, or any medical facility that is a health care facility funded, in
whole or in part, by the State.” 740 ILCS 174/5 (West 2010).
¶ 44 Section 30 of the Whistleblower Act, entitled, “Damages,” outlines the following remedies
available to an aggrieved employee:
“If an employer takes any action against an employee in violation of Section 15 ***,
the employee may bring a civil action against the employer for all relief necessary to
make the employee whole ***.” 740 ILCS 174/30 (West 2010).
Section 30 continues by outlining specific remedies available to an aggrieved employee, which
include, but are not limited to, (1) “reinstatement with the same seniority status”; (2) “back
pay, with interest”; and (3) “compensation for any damages sustained as a result of the
violation, including litigation costs, expert witness fees, and reasonable attorney’s fees.” Id.¶ 45 3. The Third Certified Question
¶ 46 The trial court certified the following question for interlocutory review:
“[3.] Does plaintiff’s claim for violation of the *** Whistleblower [Act] constitute
a claim for civil damages subject to peer review immunity afforded by the ***
[Hospital Act]?”
¶ 47 As phrased, the third certified question requires this court to consider the interaction, if
any, between the Hospital Act and the Whistleblower Act. As already discussed, the intent of
section 10.2 of the Hospital Act is to provide immunity from civil liability to hospitals and
certain identified committee members for decisions made in furtherance of the legitimate state
interest in improving the quality of health care in Illinois. In contrast, the purpose of the
Whistleblower Act is to protect statutorily defined employees who report violations of state or
federal laws, rules, or regulations “because the reported wrongful conduct or unsafe condition
affected the heath, safety[,] or welfare of Illinois residents as a whole.” Sutherland v. Norfolk
Southern Ry. Co., 356 Ill. App. 3d 620, 627, 826 N.E.2d 1021, 1027 (2005).
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¶ 48 Provena argues that Larsen’s retaliation claim is barred by section 10.2 of the Hospital Act.
Specifically, Provena contends that because Larsen based his retaliation claim on Provena’s
peer-review determination, which denied Larsen’s application for clinical privileges, Larsen
was required to allege willful and wanton misconduct to maintain his cause of action under the
Whistleblower Act. Provena asserts that to conclude otherwise would essentially create an
additional exception to the immunity afforded by section 10.2 of the Hospital Act. We
disagree.
¶ 49 In January 2004–approximately 4 1/2 years after amending section 10.2 of the Hospital Act
to include a definition of willful and wanton misconduct–the legislature enacted the
Whistleblower Act. See Pub. Act 93-544 (eff. Jan. 1, 2004) (adding 740 ILCS 174/1 to 35).
Section 5 of the Whistleblower Act specifically notes that a physician who practices his or her
profession in a health care facility funded by the state is an “employee” who “may bring a civil
action against the employer for all relief necessary to make the employee whole.” (Emphasis
added.) 740 ILCS 174/5, 30 (West 2010). Thus, by its plain language, the legislature clearly
intended that the Whistleblower Act would apply to physicians who satisfied the statutory
definition of employee. We presume that when enacting new legislation, the legislature
“envisions a consistent body of law” and “is aware of all previous enactments.” Illinois Native
American Bar Ass’n v. University of Illinois, 368 Ill. App. 3d 321, 327-28, 856 N.E.2d 460,
467 (2006). Given their differing purposes and the legislature’s clear expression that the
Whistleblower Act would apply to physician employees as defined therein, we conclude the
Whistleblower Act and Hospital Act are separate and distinct laws.
¶ 50 The Whistleblower Act contains no immunity provision, as does the Hospital Act, and this
court, under the guise of statutory interpretation, cannot simply rewrite the Whistleblower Act
to include such a provision. Our doing so would be particularly improper where the very
immunity provision at issue was subject to legislative scrutiny just 4 1/2 years earlier, when the
legislature amended the immunity provision of the Hospital Act. This sequence of events
compels the conclusion that the absence of this immunity provision in the Whistleblower Act
is no legislative oversight.
¶ 51 We acknowledge that the relief available to an employee under section 30 of the
Whistleblower Act includes damages that would not be recoverable under the Hospital Act
absent willful and wanton misconduct. However, in any supposed conflict between the two
respective acts as a result of a retaliatory claim based on a denial of clinical privileges, the
older act must yield to the more recent legislation. See Village of Chatham v. County of
Sangamon, 216 Ill. 2d 402, 431, 837 N.E.2d 29, 46 (2005) (“[W]hen two statutes appear to be
in conflict, the one which was enacted later should prevail, as a later expression of legislative
intent.”).
¶ 52 Accordingly, we answer the third certified question in the negative.
¶ 53 4. The Fourth Certified Question
¶ 54 Having concluded that Larsen’s retaliation claim was not precluded by the Hospital Act,
we consider the next and last certified question, which concerns Larsen’s status as an employee
under the Whistleblower Act:
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“[4.] Is payment to a hospital under assignment from a Medicaid recipient, pursuant
to the Social Security Act, § 1902(a)(32), ‘funding’ by the State as defined by the ***
[Whistleblower Act]?”
¶ 55 As previously noted, section 5 of the Whistleblower Act defines employee, as follows:
“ ‘Employee’ means any individual who is employed on a full-time, part-time, or
contractual basis by an employer. ‘Employee’ also includes, but is not limited to, a
licensed physician who practices his or her profession, in whole or in part, at a hospital,
nursing home, clinic, or any medical facility that is a health care facility funded, in
whole or in part, by the State.” (Emphasis added.) 740 ILCS 174/5 (West 2010).
Thus, the fourth certified question requires this court to interpret the phrase, “a health care
facility funded, in whole or in part, by the State.”
¶ 56 Section 1396a(a)(32)(A) of the Social Security Act provides, as follows:
“(a) Contents.
A State plan for medical assistance must–
***
(32) provide that no payment under the plan for any care or service provided
to an individual shall be made to anyone other than such individual or the
person or institution providing such care or service, under an assignment or
power of attorney or otherwise; except that–
(A) in the case of any care or service provided by a physician, dentist, or
other individual practitioner, such payment may be made (i) to the
employer of such physician, dentist, or other practitioner if such physician,
dentist, or practitioner is required as a condition of his employment to turn
over his fee for such care or service to his employer, or (ii) (where the care
or service was provided in a hospital, clinic, or other facility) to the facility
in which the care or service was provided if there is a contractual
arrangement between such physician, dentist, or practitioner and such
facility under which such facility submits the bill for such care or service[.]”
42 U.S.C. § 1396a(a)(32)(A) (2006).
¶ 57 “In 1965, Congress enacted title XIX of the Social Security Act (42 U.S.C. §§ 1396 to
1396v (2006)), commonly known as the Medicaid Act.” Tjaden v. State of Illinois, 2013 IL
App (4th) 120768, ¶ 34, 11 N.E.3d 812. “The statute created a cooperative program in which
the federal government reimburses state governments for a portion of the costs to provide
medical assistance to two low-income groups known as ‘the categorically needy’ and ‘the
medically needy.’ ” Id. “State participation in the Medicaid program is voluntary, but if a state
elects to participate, it must comply with the requirements of the Medicaid Act and the
regulations promulgated thereunder.” Biekert v. Maram, 388 Ill. App. 3d 1114, 1119, 905
N.E.2d 357, 362-63 (2009). “At its heart, Medicaid is a taxpayer-funded program intended to
provide medical care to the truly poor and needy ***.” Tjaden, 2013 IL App (4th) 120768,
¶ 35, 11 N.E.3d 812.
¶ 58 Provena essentially argues that Medicaid benefits are not state funds as contemplated by
section 30 of the Whistleblower Act. In their respective briefs to this court, the parties argue
that resolution of the fourth certified question depends on the manner in which Provena
received Medicaid payments–that is, directly from the state or by assignment from the
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Medicaid beneficiary. We do not find this distinction dispositive. Instead, we compare the
terms “fund,” as used in section 5 of the Whistleblower Act, and “payment,” as used in the
Social Security Act. We find this distinction dispositive.
¶ 59 The definition of “fund” is “[t]o furnish money to (an individual, entity, or venture),
[especially] to finance a particular project.” Black’s Law Dictionary 697 (8th ed. 2004).
“Payment” is defined as the “money or other valuable thing so delivered in satisfaction of an
obligation.” Id. at 1165.
¶ 60 As noted, the purpose of the Medicaid program is to defray the cost of providing medical
care to the poor and needy by providing payment in satisfaction or partial satisfaction for the
medical services provided. Payments such as these cannot reasonably be considered funding as
contemplated by the Whistleblower Act. For example, if a person underwent a medical
procedure that was covered by her private medical insurance policy, no reasonable person
would conclude that the insurance company was privately “funding” the hospital by directly or
indirectly tendering payment for the medical service provided. Similarly, a person who pays
for his prescription at the hospital’s pharmacy is not “funding” that entity. In each example, the
payee is making a payment in satisfaction for a service performed. In other words, payment
contemplates an exchange. In this case, a Medicaid payment is for medical services rendered.
We see no meaningful distinction between the aforementioned examples and a payment made
by the state on behalf of a Medicaid beneficiary for medical services rendered.
¶ 61 In contrast, we view the phrase, “funding, in whole or in part, by the State” as used in
section 5 of the Whistleblower Act as a term of art, which contemplates public funding that is
allocated–for example–to financially support a particular program, experimental medical trial,
or project offered by a health care facility. See 105 ILCS 5/14A-30 (West 2010) (explaining
the funding available through the Illinois Board of Education for qualified programs focused
on the education of gifted and talented children). In the examples provided, the funds allocated
do not represent a direct exchange but, rather, finances provided to advance a project, program,
or other laudable endeavor that the state has determined is in the public’s best interest.
¶ 62 Accordingly, we answer the fourth certified question in the negative, noting that a
Medicaid payment–made either directly by the state or by assignment by a Medicaid
beneficiary–is not funding as contemplated by section 5 of the Whistleblower Act.
¶ 63 III. CONCLUSION
¶ 64 For the reasons stated, we answer the first certified question in the affirmative, the
remaining three questions in the negative, and we remand for further proceedings.
¶ 65 Certified questions answered; cause remanded.
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