Valfer v. Evanston Northwestern Healthcare , 2016 IL 119220 ( 2016 )

2016 IL 119220
IN THE
SUPREME COURT
OF
THE STATE OF ILLINOIS
(Docket No. 119220)
STEVEN I. VALFER, M.D., Appellant, v. EVANSTON NORTHWESTERN
HEALTHCARE, n/k/a NorthShore University HealthSystem,
Appellee.
Opinion filed May 19, 2016.
JUSTICE THOMAS delivered the judgment of the court, with opinion.
Chief Justice Garman and Justices Freeman, Kilbride, Karmeier, Burke, and
Theis concurred in the judgment and opinion.
OPINION
¶1 Plaintiff, Steven I. Valfer, M.D., brought an action in Cook County circuit court
seeking civil damages against defendant, Evanston Northwestern Healthcare, n/k/a
NorthShore University HealthSystem (the hospital), based on the revocation of his
privileges to practice at the hospital following a peer review conducted pursuant to
the Illinois Hospital Licensing Act (Licensing Act) (210 ILCS 85/1 et seq. (West
2012)). The hospital filed a motion for summary judgment, arguing it was immune
from damages under the Licensing Act and that it did not violate its bylaws in
connection with deciding not to reappoint plaintiff. The trial court agreed, finding
that the hospital was immune from suit and that it had complied with its bylaws and
had not engaged in any wilful and wanton conduct. The appellate court affirmed.
2015 IL App (1st) 142284. We allowed plaintiff’s petition for leave to appeal (Ill.
S. Ct. R. 315 (eff. Jan. 1, 2015)) and now affirm the appellate court.
¶2 BACKGROUND
¶3 Plaintiff is an obstetrician and gynecologist (OB-GYN) who has been licensed
to practice medicine in Illinois since 1975. In November 2000 and September 2001,
plaintiff was reappointed to the staff at defendant hospital. Relative to his
September 2001 reappointment, plaintiff received a letter from the president of the
hospital stating that plaintiff’s reappointment would terminate May 31, 2002.
¶4 In February 2002, plaintiff applied for reappointment at the hospital. At that
time, Dr. Kenneth Nelson, the division chief of gynecology at the hospital,
reviewed one of plaintiff’s gynecological surgeries and deemed that it did not meet
relevant criteria. Specifically, Dr. Nelson learned plaintiff removed a woman’s
ovaries for treatment of menorrhagia—abnormal menstrual bleeding. Because that
condition is not a recognized indication for the removal of ovaries, plaintiff’s
treatment raised patient safety concerns and led to a meeting between plaintiff and
two other doctors at the hospital—Dr. Nelson and Dr. Richard Silver, who was the
chairman of the OB-GYN department at the time.
¶5 Dr. Nelson and Dr. Silver found plaintiff to be unresponsive to their concerns at
the meeting. As a result, Dr. Nelson conducted an additional review of 21 of
plaintiff’s surgical cases from the previous year and found that at least 50% of the
cases “lack[ed] demonstrable indications for surgical intervention.”
¶6 On June 4, 2002, Dr. Nelson and Dr. Silver once again met with plaintiff, this
time to discuss all the unnecessary surgeries. Following their discussion, plaintiff
voluntarily agreed to refrain from performing gynecological surgery until the
pending issues were resolved. Plaintiff still retained other privileges at the hospital
such as the right to admit patients. Also on June 4, 2002, Dr. Silver sent plaintiff a
letter informing him that he would not recommend plaintiff for reappointment at
the hospital. That same day, Dr. Silver notified the hospital operating room that
plaintiff’s operating privileges were suspended until further notice.
¶7 Dr. Silver explained in his letter to plaintiff that his recommendation against
reappointment was based on patient safety and specifically that there were
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“[m]ultiple surgical cases for which approved indications for the intended
procedures appear to be lacking.” Dr. Silver also explained that if the executive
committee accepted his recommendation against reappointment, plaintiff would be
notified in writing.
¶8 On July 3, 2002, the hospital’s executive committee met to discuss plaintiff’s
potential reappointment to the medical staff. The committee determined that it
would recommend to the hospital’s board of directors that plaintiff not be
reappointed. On July 9, 2002, the president and chief executive officer (CEO) of
the hospital sent plaintiff a certified letter stating that the recommendation to deny
plaintiff’s reappointment had been accepted. The letter set forth the reasons for the
decision and explained plaintiff’s right to request a hearing under the hospital
bylaws and plaintiff’s rights at such a hearing.
¶9 In 2004, the hospital held a hearing on the matter before a hearing committee, at
which plaintiff was represented by counsel and was allowed to present evidence
and examine witnesses. The hearing lasted three days. Plaintiff testified on his own
behalf, and Dr. Nelson and Dr. Hansfield testified against plaintiff. Evidence was
presented that both of the doctors testifying against plaintiff had offices in close
proximity to plaintiff and were competitors of his. On July 21, 2004, the hearing
committee upheld the executive committee’s recommendation against
reappointment.
¶ 10 The president and CEO of the hospital notified plaintiff in writing of the
hearing committee’s decision and reasoning and of plaintiff’s right to appeal to an
appellate review committee. In the meantime, plaintiff continued to retain
privileges that he had not voluntarily relinquished and was able to continue to admit
patients in accordance with the hospital bylaws. 1
¶ 11 Plaintiff requested appellate review, and the appellate review committee upheld
the recommendation against reappointment. The hospital board affirmed that
decision on March 16, 2005, and plaintiff’s nonreappointment became final and
effective on that date.
1
From the time of his application for reappointment in February 2002 until the time his
nonreappointment became final on March 16, 2005, the hospital’s computer credentialing software
indicated that plaintiff was an active staff member at the hospital. Any changes in the computer
software, however, had to go through the medical executive committee. Thus, in response to
inquiries about plaintiff’s credentials in October 2002 and March 2004, the hospital sent out letters
indicating that plaintiff was a member in good standing. This appears to be consistent with the fact
that the decision against reappointment did not become final until March 16, 2005.
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¶ 12 On March 15, 2007, plaintiff filed his initial lawsuit against the hospital seeking
civil damages arising out of the hospital’s decision not to reappoint him.
Thereafter, a lengthy procedural history (largely irrelevant to the issues presented
in this appeal) ensued over the next seven years.
¶ 13 In February 2014, the hospital filed a motion for summary judgment seeking to
dismiss plaintiff’s breach of contract count, 2 which was the sole remaining claim in
the case. In its motion, the hospital argued that it had complied with the applicable
bylaws in deciding not to reappoint plaintiff, and therefore it could not be held
liable for breach of contract. The hospital further argued that, pursuant to section
10.2 of the Licensing Act (210 ILCS 85/10.2 (West 2012)), it was immune from
liability for civil damages and was likewise immune under the federal Health Care
Quality Improvement Act of 1986 (HCQIA) (42 U.S.C. § 11101 et seq. (2012)).
The trial court granted summary judgment in favor of the hospital on all three
grounds.
¶ 14 The trial court first found that there was no genuine issue of material fact about
whether plaintiff was reappointed after May 31, 2002. The court determined
plaintiff was not reappointed after that date based on a number of facts. There were
no documents advising him that he had been reappointed after that date as there had
been for his September 2001 appointment. All of the deposition testimony was
consistent in showing that he had not been reappointed. And plaintiff himself
participated in all of the proceedings and never once challenged the
characterization by the hospital of the hearings and investigations as being part of
the reappointment process. Plaintiff also took advantage of all of the protections of
the bylaws that govern the reappointment process and never invoked the
protections available to doctors under the peer review process. Plaintiff also
acknowledged on a number of occasions that the proceedings dealt with
reappointment. Second, the court found that the immunity set forth in section 10.2
of the Licensing Act applied because the hospital basically put forth unrebutted
evidence that plaintiff was afforded adequate notice and hearing procedures and
that the hospital’s decision upon reviewing plaintiff’s request for reappointment
2
The parties agree that the operative contract between the litigants is the hospital’s medical staff
bylaws, but the parties dispute which provisions of those bylaws govern the process under the
circumstances of this case.
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was based on patient safety concerns. 3 Finally, the court determined that plaintiff
provided insufficient evidence to support his allegations that the hospital’s decision
to discharge him was really a product of one doctor having an economic conflict
with plaintiff and another doctor having moral objections to his practice.
¶ 15 Plaintiff appealed and made the following arguments before the appellate court:
(1) he was “effectively reappointed” on May 31, 2002, because he was allowed to
admit patients to the hospital after that date, and therefore a genuine issue of
material fact exists as to whether the hospital was required to follow the bylaws
applicable to peer review and suspension as opposed to the bylaws applicable to
reappointment that were applied by the hospital in this case; (2) immunity under the
Licensing Act does not apply because the hospital was “wilful and wanton” in
denying him privileges by failing to follow the appropriate bylaws and by allowing
two of his competitors to partake in the peer review process; and (3) immunity
under the HCQIA does not apply because the hospital did not follow the
appropriate bylaws.
¶ 16 The appellate court affirmed the trial court’s grant of summary judgment on the
basis that the hospital was immune from suit under section 10.2 of the Licensing
Act. 2015 IL App (1st) 142284, ¶¶ 33, 35. In so doing, the appellate court
acknowledged that the immunity conferred by the statute contains an exception for
wilful and wanton misconduct. Relying upon Lo v. Provena Covenant Medical
Center, 356 Ill. App. 3d 538 (2005), and Larsen v. Provena Hospitals, 2015 IL App
(4th) 140255, however, the appellate court found that to satisfy the wilful and
wanton standard, a plaintiff must allege some type of physical harm to a person’s
safety or the safety of others. 2015 IL App (1st) 142284, ¶¶ 24, 26-27. Otherwise,
under plaintiff’s interpretation, which merely requires an intention to harm, the
immunity of the Licensing Act would be rendered meaningless because every time
a physician’s privileges are suspended, he likely suffers loss of reputation and
resulting economic harm, which could always be said to have been intended by a
defendant hospital. Id. ¶ 28. The appellate court did not address the other two
grounds upon which the trial court granted summary judgment in favor of the
hospital.
¶ 17 Plaintiff filed a petition for leave to appeal with this court, which we allowed.
3
The trial court agreed with plaintiff’s theory that he could show “wilful and wanton
misconduct” without showing physical harm, but disagreed that there was any evidence of “wilful
and wanton misconduct” so as to raise a genuine issue of material fact on that score.
-5-
¶ 18 ANALYSIS
¶ 19 This court conducts de novo review of a summary judgment ruling. Bruns v.
City of Centralia, 2014 IL 116998, ¶ 13. Moreover, the construction of a statute
presents a question of law, which this court also reviews de novo. Hayashi v.
Illinois Department of Financial & Professional Regulation, 2014 IL 116023, ¶ 16.
¶ 20 Summary judgment is proper where the pleadings, affidavits, depositions,
admissions, and exhibits on file, when viewed in the light most favorable to the
nonmovant, reveal that there is no genuine issue of material fact and the moving
party is entitled to judgment as a matter of law. 735 ILCS 5/2-1005(c) (West 2012).
A party opposing a motion for summary judgment cannot rest on its pleadings if the
other side has supplied uncontradicted facts that would warrant judgment in its
favor (Abrams v. City of Chicago, 211 Ill. 2d 251, 257 (2004)), and unsupported
conclusions, opinions, or speculation are insufficient to raise a genuine issue of
material fact (Outboard Marine Corp. v. Liberty Mutual Insurance Co., 154 Ill. 2d
90, 132 (1992)).
¶ 21 Before this court, plaintiff first argues that the appellate court erred in
construing the Licensing Act to mean that in order to satisfy the “wilful and
wanton” exception to immunity, plaintiff must plead and prove that physical harm
resulted from the hospital’s actions. According to plaintiff, he has adequately
shown “wilful and wanton misconduct” by merely alleging that the hospital did not
follow its bylaws relating to the suspension of his privileges. In response, the
hospital contends that plaintiff’s argument starts from the faulty premise that he
was “effectively reappointed” after May 31, 2002 (the date his appointment
terminated). The hospital contends that there is no record evidence to support
plaintiff’s notion that he was reappointed after that date. Instead the record simply
shows that he was allowed to continue on with admitting privileges after that date
while his application for reappointment was being reviewed under the specter of
the issues being raised about the unnecessary surgeries. In any event, the hospital
maintains that regardless of whether plaintiff was reappointed or not and whether
the appropriate bylaws were followed or not, the appellate court correctly
determined that plaintiff must plead and prove physical harm to establish wilful and
wanton misconduct under the Licensing Act.
-6-
¶ 22 The parties’ arguments present an issue of statutory construction. When
construing a statute, this court’s primary objective is to ascertain and give effect to
the intent of the legislature. Barragan v. Casco Design Corp., 216 Ill. 2d 435, 441
(2005). The best signal of legislative intent is the language employed in the statute,
which must be given its plain and ordinary meaning. Gillespie Community Unit
School District No. 7 v. Wight & Co., 2014 IL 115330, ¶ 31. Words and phrases
should not be considered in isolation, however, and should be viewed in light of
other relevant provisions of the statute. Midstate Siding & Window Co. v. Rogers,
204 Ill. 2d 314, 320 (2003). And this court presumes that the legislature did not
intend absurdity, inconvenience, or injustice. Citizens Opposing Pollution v.
ExxonMobil Coal U.S.A., 2012 IL 111286, ¶ 23. We will also avoid a construction
of a statute that renders any portion of it meaningless. Lake County Grading Co. v.
Village of Antioch, 2014 IL 115805, ¶ 27. Where the statutory language is clear and
unambiguous, it will be given effect without resort to other aids of construction.
Bettis v. Marsaglia, 2014 IL 117050, ¶ 13. But if the meaning of an enactment is
unclear from the statutory language, the court may look beyond the language used
and consider the purpose behind the law and the evils the law was designed to
remedy. Id.
¶ 23 Turning to the statutory language at issue, we note that section 10.2 of the
Licensing Act provides immunity to hospitals in connection with the physician
review process as follows:
Ҥ 10.2. 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 result of the acts, omissions, decisions, or
any other conduct, except those involving wilful or wanton misconduct, of a
medical utilization committee, medical review committee, patient care audit
committee, medical care evaluation committee, quality review committee,
credential committee, peer review committee, or any other committee or
individual whose purpose, directly or indirectly, is internal quality control or
medical study to reduce morbidity or mortality, or 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
***. *** For the purposes of this Section, ‘wilful and wanton misconduct’
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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 2012).
¶ 24 The stated purpose of section 10.2 of the Licensing Act is “to encourage peer
review by health care providers.” Id. As our appellate court has repeatedly noted,
the legislative aim of the statute is to foster self-policing by the medical profession
in matters unique to that profession and to thereby promote the legitimate State
interest in improving the quality of health care. 2015 IL App (1st) 142284, ¶ 23;
Knapp v. Palos Community Hospital, 176 Ill. App. 3d 1012, 1024 (1988);
Rodriguez-Erdman v. Ravenswood Hospital Medical Center, 163 Ill. App. 3d 464,
470 (1987).
¶ 25 Reading section 10.2 as a whole, we find that the appellate court was correct in
determining that the “wilful and wanton” exception is limited to physical harm. We
agree that the only reasonable way to interpret the last sentence of the above-quoted
section defining wilful and wanton misconduct is by finding that the phrase “utter
indifference to or conscious disregard for a person’s own safety and the safety of
others” clarifies the kind of intentional “harm” the legislature had in mind. The last
phrase of the exception’s reference to safety clearly shows an intent that the harm
contemplated is physical. Furthermore, if the legislature had intended to except
from immunity any and all types of intentional harm, such as harm to one’s
reputation or economic well-being, it would surely negate the immunity entirely
and would lead to an absurd result.
¶ 26 Plaintiff contends that “even though a termination of privileges is intentional, it
can be accomplished in conformance with the hospital’s bylaws [such that] the
termination would most likely not be willful and wanton.” But we note that if a
physician cannot show a violation of the hospital bylaws, there is no need to reach
the statute’s immunity or the exception to that immunity because the physician
could not establish a breach of contract in the first instance. On the other hand, if a
physician could satisfy the statute’s exception to immunity simply by establishing a
bylaws violation, the immunity would never apply because, according to plaintiff,
the breach itself would establish wilful and wanton misconduct. Plaintiff is thus
essentially asking this court to render section 10.2 a nullity in contradiction of basic
principles of statutory construction, and therefore we must reject his argument.
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¶ 27 That is not to say that we believe that the language employed in the exception is
flawless. As both parties acknowledge, “wilful and wanton” is a tort concept that
has been incongruously engrafted into a statute that will largely be used to provide
immunity for breach of contract claims. This is reinforced by the reality that Illinois
law views wilful and wanton misconduct “as an aggravated form of negligence,”
i.e., a tort. Krywin v. Chicago Transit Authority, 238 Ill. 2d 215, 235 (2010). A
breach of contract is not considered a tort because intent or the willfulness of the
breach is not relevant (Morrow v. L.A. Goldschmidt Associates, Inc., 112 Ill. 2d 87,
94 (1986)) and a breach of contract presents solely economic losses that are not
normally recoverable in tort actions (In re Chicago Flood Litigation, 176 Ill. 2d
179, 198, 201 (1997)). Thus, because “wilful and wanton” is a tort concept that
applies only to reckless or intentionally tortious conduct that causes physical harm
to a person or property, it has no application to a nontort claim such as a routine
breach of contract action involving a violation of the hospital bylaws. 4
¶ 28 In support of his position that physical harm is not required, plaintiff relies upon
Ziarko v. Soo Line R.R. Co., 161 Ill. 2d 267 (1994), and a comment in the
legislative debate on the 1999 amendment to section 10.2 that adopted the “wilful
and wanton misconduct” language. We find, however, that both matters actually
support the appellate court’s interpretation of the language.
¶ 29 Ziarko involved a truck-train collision that resulted in substantial physical
injury. Id. at 269. This court was called upon to consider the parameters of the term
“willful and wanton conduct” and concluded that the term is “a hybrid between acts
considered negligent and behavior found to be intentionally tortious.” Id. at 275.
Furthermore, even the quote from Ziarko that plaintiff now relies upon shows the
connection between tortious behavior and physical harm and safety:
“Willful and wanton conduct includes that which was performed intentionally.
[Citation.] However, unlike intentionally tortious behavior, conduct
characterized as willful and wanton may be proven where the acts have been
less than intentional—i.e., where there has been ‘a failure, after knowledge of
impending danger, to exercise ordinary care to prevent’ the danger, or a ‘failure
4
See Morrow, 112 Ill. 2d at 95 (There is also a rule against awarding punitive damages for
breach of contract, and the only exception is when the conduct causing the breach is also an
independent tort for which punitive damages are recoverable.).
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to discover the danger through *** carelessness when it could have been
discovered by the exercise of ordinary care.’ [Citation.]” Id. at 274.
¶ 30 Plaintiff points to a comment on the Senate floor when the 1999 amendment to
section 10.2 was added, which indicates that the legislature intended to adopt the
“standard definition” of “wilful and wanton” along the line of Ziarko. We note that
the definition of the term that the legislature actually provided for in the statute
speaks for itself. But we also conclude that, consistent with Ziarko, the standard
definition limits the concept of wilful and wanton to physical harm.
¶ 31 Plaintiff argues that the appellate court’s holding “eviscerates” this court’s
decision in Adkins v. Sarah Bush Lincoln Health Center, 129 Ill. 2d 497 (1989),
which involved the immunity in a different statute, section 2b of the Medical
Practice Act (Ill. Rev. Stat. 1985, ch. 111, ¶ 4406). Adkins held that “there is, in
cases involving private hospital staff privileges, a ‘rule of non-review’ under
which, as a matter of public policy, internal staffing decisions of private hospitals
are not subject, except as hereinafter stated, to judicial review.” Adkins, 129 Ill. 2d
at 506. The court went on to observe that the “judicial reluctance to review these
internal staff decisions reflects the unwillingness of courts to substitute their
judgment for the professional judgment of hospital officials with superior
qualifications to consider and decide such issues.” Id. at 507. The court further
found, however, that “[a]n exception exists [to the rule of non-review] when the
decision involves a revocation, suspension or reduction of existing staff privileges.
In such cases, the hospital’s action is subject to a limited judicial review to
determine whether the decision was made in compliance with the hospital’s
bylaws.” Id. at 506-07. The court went on to note that the physician in that case was
given the basic due process rights of notice and a full opportunity to defend himself
in a hearing. Id. at 510.
¶ 32 We do not find Adkins controlling under the circumstances of the present case.
Here, plaintiff was represented by counsel at all times and was afforded a thorough
course of due process hearings and reviews. Plaintiff never once complained that
the wrong process was followed until he filed his amended complaint in circuit
court. Adkins also involved a different statute, section 2b of the Medical Practice
Act. Moreover, Adkins did not conduct an analysis of the actual language of the
statutory immunity in that case, nor did it consider any arguments similar to the
ones presented in this case based on the statutory language of section 10.2 of the
Licensing Act. Additionally, a year after Adkins was decided, this court expressly
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held that “the exception for willful or wanton misconduct that is contained in
section 2b of the Medical Practice Act was intended to apply only to the immunity
created within that section of the Medical Practice Act, and not to the entirely
separate immunity created by section 10.2 of the Hospital Licensing Act.”
Cardwell v. Rockford Memorial Hospital, 136 Ill. 2d 271, 278 (1990). We also note
that Adkins was decided ten years before the legislature supplied the definition of
“wilful and wanton misconduct” contained in section 10.2 of the Licensing Act in
question here. For all of these reasons, then, Adkins does not militate against the
result we reach in this case.
¶ 33 Plaintiff asserts that the appellate court’s decision gives hospitals absolute
immunity for their staffing decisions and would deprive doctors of access to the
courts in breach of contract cases. Amici curiae in support of plaintiff, the
Association of American Physicians and Surgeons, the Illinois Trial Lawyers
Association, and Dr. Michael Benson, argue in similar fashion that the appellate
court’s decision would open the door to “sham peer review” and would shield
intentional discrimination without any remedies for the physicians who suffer from
such misconduct. We disagree.
¶ 34 Our decision today should not be interpreted as condoning sham peer review.
Section 10.2 of the Licensing Act immunizes a hospital and those involved in its
quality reviews from civil damages only, and then only if the review was
undertaken based on the actual purpose specified by the statute—i.e., to maintain or
improve the quality of health care.
¶ 35 First, we note that the statute does not provide absolute immunity from all legal
challenges to all decisions made by hospital peer review committees. Other
remedies, such as injunctive and declaratory relief, remain available, and this is
consistent with the notion expressed in Adkins that a hospital’s actions are subject
to limited judicial review to determine whether the decision was made in
compliance with the hospital’s bylaws. If a physician has a quarrel with his
treatment under the bylaws, he can bring a timely claim for injunctive relief to
make sure the proper procedures are followed. Also, tort actions that allege
physical harm, such as physical harm resulting from intentional infliction of
emotional distress, would be subject to the “wilful and wanton misconduct”
language of the Licensing Act because physical harm is a part of such claims.
Moreover, the Illinois statute cannot be read to take precedence over federal civil
rights statutes that might be applicable for certain types of misconduct.
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¶ 36 Second, and most importantly, we note that section 10.2 is clear and expressly
states that its immunity is only afforded in a case like the present one where the
purpose of the decision or action on the part of the hospital is “internal quality
control *** or the improving or benefiting of patient care and treatment, whether
within a hospital or not, or for the purpose of professional discipline.” 210 ILCS
85/10.2 (West 2012). In the event that a plaintiff physician alleges well-pleaded
facts—which are not based on mere speculation or unsupported conclusions—to
indicate that the purpose of the discipline was not based on the grounds enunciated
in the statute but was instead a sham, he or she may advance his claim beyond a
motion to dismiss on the pleadings.
¶ 37 We realize that the “wilful and wanton misconduct” exception is silent about
motive and instead only speaks to whether the decision of the hospital was
intentional or not. However, this point does not address whether the general
immunity language of the statute is applicable in the first instance, which requires
that the purpose of the hospital’s decision be for quality health care and not some
other sham purpose. See 210 ILCS 85/10.2 (West 2012).
¶ 38 Here, plaintiff’s claim advanced beyond the pleadings despite the conclusory
nature of his allegations. Instead his claim was only disposed of after a full hearing
on the hospital’s motion for summary judgment. As the trial court correctly noted,
plaintiff alleged that one doctor had “economic cause for doing harm and another
ha[d] moral objections to his practice but [plaintiff] provided insufficient evidence
to raise a genuine issue of material fact to refute the [hospital’s] evidence” on those
matters.
¶ 39 This was clearly the correct result based on this record, and plaintiff makes no
effort to put forth a contrary argument before this court. We find that a case cited by
plaintiff—Levitin v. Northwest Community Hospital, 64 F. Supp. 3d 1107 (N.D. Ill.
2014)—is instructive and shows that the proper result was reached in this case. In
Levitin, the plaintiff alleged a plethora of well-pleaded facts to indicate that the peer
review process in that case was not undertaken in reasonable belief that the
disciplinary action was in furtherance of quality health care but rather to retaliate
against the plaintiff for complaining about another doctor’s abusive behavior and
false complaints. In denying the hospital’s motion to dismiss, the federal district
court in Levitin noted that at this stage in the proceedings, the plaintiff’s factual
allegations were presumed to be true and, if true, would ultimately deprive the
hospital of immunity. Id. at 1121. This was so because the plaintiff had alleged
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plausible grounds “to doubt that [the defendants] acted under the reasonable belief
that their actions were taken in the furtherance of quality health care.” Id. 5 The
court cautioned, however, that the “evidence adduced in discovery and presented
on summary judgment or at trial may cast the case in a different light,” such that
immunity might be found to be applicable. Id.
¶ 40 Similar to Levitin, the hospital’s initial motion to dismiss in the present case
was denied. This case, however, presents the scenario envisioned in Levitin where
the facts adduced on summary judgment cast the case in a different light and
establish that there is no genuine issue of material fact as to the purpose of the
hospital’s decision to not reappoint plaintiff. 6
¶ 41 Plaintiff next argues that as construed by the appellate court, section 10.2 of the
Licensing Act (1) constitutes impermissible special legislation because it grants
hospitals absolute immunity for their staffing decisions and (2) deprives doctors of
the right to access the courts. We find no merit to plaintiff’s arguments.
¶ 42 A statute violates the special legislation clause of the Illinois Constitution only
if it (1) confers on a person, entity, or class of persons or entities a special benefit or
exclusive privilege that is denied to others who are similarly situated and (2) the
classification is arbitrary. Big Sky Excavating, Inc. v. Illinois Bell Telephone Co.,
217 Ill. 2d 221, 236-37 (2005). Plaintiff’s argument starts from the faulty premise
that section 10.2 of the Licensing Act confers absolute immunity on hospitals for
their staffing decisions. Thus, there is no need to consider his argument further,
other than to note that our decision correctly prescribes the limits of the immunity
available under the Licensing Act and there is no special benefit being conferred to
5
As an additional basis for its decision, the court in Levitin found that the allegations also
established that the defendants engaged in wilful and wanton misconduct. For the reasons noted
above, we do not agree with that statement. But we do agree that a hospital cannot claim immunity
for actions that are a sham and which are not actually undertaken in reasonable belief that they are in
furtherance of quality health care. This is because in such a case the hospital’s action would not fall
within the immunity language of the statute in the first place.
6
Mallapudi v. Mercy Hospital & Medical Center, No. 07 C 2053, 2007 WL 4548293, at *9
(N.D. Ill. Dec. 17, 2007), is another case where a federal district court found the plaintiff’s
allegations of a sham purpose at work in his dismissal to be sufficient to survive a motion to dismiss.
But the court noted that the immunity of the Licensing Act may ultimately be found to be applicable
at a later stage in the proceedings. The court also explained that even at the pleading stage, the
plaintiff’s “allegations must plausibly suggest that the plaintiff has a right to relief, raising the
possibility above a speculative level; if they do not, the plaintiff pleads [him]self out of court.”
(Internal quotation marks omitted.) Id. at *4.
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which others similarly situated are not entitled. Nor is the classification the statute
draws in creating limited immunity for hospitals an arbitrary one.
¶ 43 We also note that there is no support for plaintiff’s contention that the Licensing
Act denies physicians access to the courts. Again, we have explained that
physicians may bring injunctive and declaratory actions to force compliance with
hospital bylaws, they may maintain tort actions where physical harm is alleged as
part of the wilful and wanton component, and they may maintain other kinds of
civil damage actions against a hospital where the hospital’s acts or decisions can be
said to be a sham rather than in furtherance of quality health care.
¶ 44 Our resolution of the above-discussed issues renders it unnecessary for us to
address the remaining issues raised by the parties.
¶ 45 CONCLUSION
¶ 46 For the foregoing reasons, we affirm the appellate court’s decision to affirm the
trial court’s order granting summary judgment in favor of the hospital.
¶ 47 Affirmed.
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