Manago v. The County of Cook

2016 IL App (1st) 121365FIFTH DIVISION
June 30, 2016
No. 1-12-1365
) Appeal from the
AKEEM MANAGO, a Deceased Minor By and through ) Circuit Court of
April Pritchett, Mother and Next Friend, ) Cook County
)
Plaintiff and Petitioner-Appellee, )
)
v. )
)
THE COUNTY OF COOK, )
)
Respondent-Appellant ) No. 08 L 13211
)
(April Pritchett, Individually and as Special Administrator )
for the Estate of Akeem Manago, Plaintiff; Chicago )
Housing Authority, a Municipal Corporation, )
and H.J. Russell and Company, )
)
Defendants). ) Honorable
) Thomas L. Hogan,
) Judge Presiding.
PRESIDING JUSTICE REYES delivered the judgment of the court, with opinion
Justice Gordon concurred specially in the judgment, with opinion.
Justice Lampkin dissented, with opinion.
OPINION
¶1 Respondent the County of Cook (County) appeals an order entered by the circuit court of
Cook County striking, dismissing, and extinguishing a hospital lien arising under the Health Care
Services Lien Act (Act) (770 ILCS 23/1 et seq. (West 2004)) for services rendered to plaintiff
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Akeem Manago by the John H. Stroger, Jr., Hospital of Cook County (Hospital). 1 On appeal, the
County contends the circuit court erred in extinguishing the lien, arguing: (1) it was not required
to intervene in plaintiff’s personal injury action against defendants Chicago Housing Authority
(CHA) and H.J. Russell and Company (Russell); (2) a hospital lien may be enforced against a
minor; and (3) the hospital lien may attach to a judgment that does not include an award of
damages for medical expenses. For the reasons set forth in this opinion, because Manago’s
parent, April Pritchett (Pritchett), did not assign her cause of action for medical expenses to the
injured minor plaintiff, the County does not have a lien under the Act. Accordingly, we affirm
the judgment of the circuit court.
¶2 BACKGROUND
¶3 This case arises out of injuries plaintiff sustained on August 5, 2005, while he was a
minor. 2 The Hospital provided care and treatment to plaintiff for these injuries on various dates
between August 6, 2005, through September 28, 2010. The Hospital filed a notice of lien against
plaintiff for unpaid hospital bills on August 10, 2009. Notice of the lien was forwarded to the
plaintiff at his counsel’s office by certified mail. The enforceability of the lien against a
judgment entered by the circuit court in plaintiff’s underlying personal injury lawsuit is the
subject of this appeal.
¶4 The record discloses that on November 26, 2008, plaintiff filed a three-count negligence
complaint against the CHA, Russell, and A.N.B. Elevator Services, Inc. (A.N.B.), through his
1
For the purposes of simplicity, this opinion will refer to the Hospital as the County,
except where otherwise noted. We further note that on January 27, 2015, this court granted April
Pritchett’s motion to suggest the death of the Akeem Manago of record and to appoint her as the
special administrator of the minor’s estate for the purpose of maintaining the present action.
2
The record establishes plaintiff was 12 years old at the time of the occurrence. The
parties do not contest that plaintiff was a minor at the time of his injury and throughout his
treatment.
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mother and next friend, Pritchett, seeking damages for personal injuries plaintiff sustained in an
elevator operated and controlled by Russell and A.N.B. on the CHA premises at 1520 West
Hastings in Chicago on August 5, 2005. Plaintiff alleged he was injured while an invitee on CHA
premises. Plaintiff claimed the defendants carelessly and negligently failed to inspect and
maintain the elevator, which was a direct and proximate cause of plaintiff’s injuries. Plaintiff
specifically alleged he “has become liable for sums of money for medical care and hospital care
and attention in endeavoring to be cured of the injuries caused by said occurrence.”
¶5 On March 9, 2011, plaintiff filed his second amended complaint, 3 a two-count negligence
complaint against the CHA and Russell. The second amended complaint realleged defendants’
general failure to inspect and maintain the elevator, and additionally alleged defendants failed to
inspect the elevator to ensure persons, including the plaintiff, would not have access to the
elevator roof. Plaintiff also asserted the CHA permitted an “attractive nuisance” to exist, placing
minors at risk for harming themselves. Plaintiff further alleged defendants carelessly and
negligently permitted him access to the elevator roof and that plaintiff was injured while the
elevator was in motion. Plaintiff additionally alleged his mother, “April Pritchett[,] has expended
and incurred obligations for medical expenses and care and will in the future expend and incur
such further obligations.”
3
A case information summary included in the record on appeal appears to indicate that
plaintiff filed an amended complaint in 2010, but said pleading does not appear in the record on
appeal. On February 26, 2014, this court ordered the parties to supplement the record with any
missing pleadings. The parties failed to file any pleadings specifically related to the cause before
us (No. 2008 L 13211). The County, however, filed a supplemental record containing complaints
in which plaintiff sued defendant CHA over the same August 5, 2005, incident but under a
different case number (No. 2007 L 62011). The pleadings included in the supplemental record
are: (1) a one-count complaint, filed February 22, 2007; (2) a one-count first-amended complaint,
filed May 16, 2007; (3) an answer filed by defendant CHA on May 21, 2007; (4) another “first
amended complaint,” filed September 27, 2007, containing three counts; and (5) an answer by
both CHA and Russell “to the amended complaint at law,” filed October 28, 2007.
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¶6 The record sets forth a notice of lien dated August 10, 2009, mailed from the County to
plaintiff’s attorney by certified mail, stating the County was asserting a lien upon plaintiff’s
cause of action under the Act for medical and hospital services rendered to plaintiff after the
August 5, 2005 incident. The return receipt for the notice of lien, addressed to the law office of
plaintiff’s attorney, was signed by “D. Pinto.”
¶7 On December 7, 2011, following a bench trial on plaintiff’s personal injury action,
commenced without a court reporter, the circuit court issued an order with A.N.B. no longer
listed as a party in the caption, which lists Akeem Manago “et al.” as the plaintiff. The December
7, 2011, order indicates that following the presentation of the evidence, “[p]laintiffs” requested
damages in the following amounts:
“April Pritchett – $79,572.63 for the medical bills stipulated to by the parties;
Akeem Manago – $704,000 broken down in this fashion – scarring; 350,000; past
pain and suffering – $300,000; and future loss of a normal life – $54,000.” 4
Defendants requested they be found not liable or, in the alternative, plaintiff be found 50%
responsible for his own injuries.
4
The second amended complaint does not contain any claim by April Pritchett for
medical expenses. On April 29, 2014, this court ordered the County to either “file a second
supplemental record containing the complaint upon which this case was tried” or “an explanatory
statement.” In response, the County stated on May 16, 2014, that it “is reasonably, although not
entirely, certain that Case No. 08 L 13211 was tried on the ‘second amended complaint.’ ” Our
review of the record reveals that a count for Pritchett for hospital expenses was considered and
adjudicated at trial. We, however, lack either a transcript or a bystanders report for said trial. In
situations such as this we must resolve factual issues by presuming that the trial court’s rulings
were in conformity with the law and had a sufficient factual basis. Foutch v. O’Bryant, 99 Ill. 2d
389, 391-92 (1984). As the appellant, it was the County’s burden to provide a sufficiently
complete record to support any claim of error. Id. In the absence of a complete record on appeal,
we will resolve any doubts against the appellant and in favor of the validity of the trial court’s
rulings. Id. at 392. Consequently, we will presume (1) the trial court was correct in stating that
Pritchett was a “plaintiff,” and (2) that the trial court was correct in stating that, as a plaintiff,
Pritchett brought a “count” and a “claim” for medical expenses.
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¶8 The court rendered the following findings: (1) that the CHA knew or should have known
through its agents at Russell that minor residents could access the elevator roof while the
elevator was in motion; (2) notwithstanding this actual or constructive notice, neither the CHA
nor Russell inspected the elevator access doors to determine whether the doors were open and
thereby permitted lawfully riding passengers to gain access to the elevator roof; (3) plaintiff,
while lawfully riding the elevator and after having been directed by Pritchett not to ride on the
roof, climbed onto the roof on August 5, 2005, through one of the access panels; (4) plaintiff
suffered severe and permanent injuries as a result of becoming entangled in the elevator’s
operating mechanism; and (5) plaintiff had established a prima facie case against defendants, but
“Plaintiff April Pritchett” failed to do so, because the parties stipulated to the medical bills but
“no evidence was adduced to establish that April Pritchett had any expectation that she had to
pay any of the $79,572.53 back to Stroger Hospital.”
¶9 The court awarded plaintiff: $250,000 for past, present and future scarring he will be
forced to endure for the next 54.1 years; $75,000 for past, present and future pain and suffering
and $75,000 for past, present and future loss of a normal life. The court further indicated plaintiff
was 50% responsible for his injuries and reduced the judgment from $500,000 to $250,000. No
monies were awarded to plaintiff for present or future medical expenses.
¶ 10 Pritchett filed a motion to reconsider, based on the circuit court’s failure to award
damages for the medical expenses. On December 8, 2011, defendants filed a motion to clarify
the order on the grounds the awarded expenses in the order totaled $400,000, not the $500,000
aggregate mentioned in the order. On December 9, 2011, the circuit court issued an order
clarifying the judgment was $400,000, reduced to $200,000, and the court would retain
jurisdiction for the adjudication of any liens.
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¶ 11 On January 25, 2012, the minor plaintiff filed a petition to strike and extinguish the
County’s lien. The petition asserts Pritchett filed a count in the complaint seeking damages for
medical expenses. 5 Plaintiff’s petition to strike and extinguish the lien argues: (1) a medical care
provider has no claim for reimbursement of medical expenses against funds received by a minor
from a tortfeasor pursuant to a judgment or settlement which does not include medical expenses;
and (2) any claim for medical expenses incurred in treating a minor for injuries sustained due to
a tortfeasor’s negligence belongs to the parents, rather than the child. On March 2, 2012, the
County filed its response to plaintiff’s petition, arguing the Act does not allow a lien to be
disallowed or reduced for medical services rendered to a minor, regardless of whether the
minor’s parents have a claim to recover medical expenses from a tortfeasor.
¶ 12 On April 25, 2012, the circuit court held a hearing on plaintiff’s petition. Counsel for
CHA and Russell, in addition to counsel for the County and plaintiff, presented arguments before
the court. At the hearing, the trial judge inquired whether the County had a duty to intervene in
the personal injury litigation to protect its lien. The trial judge also stated that one count of the
complaint involved a claim by Pritchett under the Rights of Married Persons Act (750 ILCS
65/15 (West 2004)), seeking reimbursement of plaintiff’s medical expenses. 6 The circuit court
further inquired whether the County’s counsel had read the December 7, 2011, order, particularly
the ruling that Pritchett failed to establish she was entitled to damages for medical expenses.
Moreover, the trial judge questioned the County’s counsel about the existence of any case law
5
The second amended complaint twice alleges Pritchett expended and incurred
obligations for medical expenses and care, but contains no separate count on this subject and
does not name Pritchett as a plaintiff. The County, however, does not dispute the trial judge’s
characterization of the pleadings.
6
Neither the initial complaint nor the second amended complaint included in the record
on appeal contains such a claim. The County, however, does not dispute the trial judge’s
characterization of the operative pleading on appeal.
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permitting the imposition of the lien against a minor. Counsel for the County responded by
referring to In re Estate of Cooper, 125 Ill. 2d 363 (1988), and In re Estate of Enloe, 109 Ill.
App. 3d 1089 (1982), both of which were cited in the County’s memorandum. The trial judge
stated Cooper involved a settlement, rather than a judgment after a trial. The trial judge also
stated “Enloe is a Fourth District case.” While the trial judge provided other reasons for
extinguishing the lien, he concluded that, under the circumstances presented by this case, the
County had produced no case law permitting it to recover from the plaintiff after not appearing to
protect the lien at trial.
¶ 13 Following the hearing, the circuit court denied plaintiff’s motion to reconsider. The
circuit court, however, granted plaintiff’s motion to strike, dismiss and extinguish the County’s
lien. On May 7, 2012, the circuit court entered an agreed order directing plaintiff’s counsel to
escrow $66,666.67 in an interest-bearing account under plaintiff’s name until further order of the
court. On May 10, 2012, the County filed a timely notice of appeal to this court.
¶ 14 On February 19, 2013, this court accepted the case for consideration on the County’s
brief, due to plaintiff’s failure to file an appellate brief within the time prescribed by Illinois
Supreme Court Rule 343(a) (eff. July 1, 2008). On August 13, 2013, this court issued an opinion
reversing the circuit court and remanding the matter for further proceedings. Manago v. County
of Cook, 2013 IL App (1st) 121365. On September 18, 2013, plaintiff filed a petition for
rehearing. On September 20, 2013, the Illinois Trial Lawyers Association (ITLA, amicus) filed a
motion to file an amicus curiae brief in support of the petition for rehearing. On October 4, 2013,
this court entered orders allowing ITLA to file an amicus curiae brief in support of the petition
for rehearing, granting the petition for rehearing and setting a supplemental briefing schedule.
On January 23, 2014, this court heard oral argument in this matter.
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¶ 15 DISCUSSION
¶ 16 On appeal, the County, on behalf of the Hospital, argues the circuit court erred in
striking, dismissing and extinguishing its statutory lien. The County does not dispute any of the
circuit court’s findings of fact. Where the court is requested to determine the correctness of the
circuit court’s application of law to undisputed facts, our review is de novo. Wills v. Foster, 229
Ill. 2d 393, 399 (2008). “Under the de novo standard of review, the reviewing court does not
need to defer to the trial court’s judgment or reasoning.” Platinum Partners Value Arbitrage
Fund, Ltd. Partnership v. Chicago Board Options Exchange, 2012 IL App (1st) 112903, ¶ 12.
“De novo review is completely independent of the trial court’s decision.” Id.¶ 17 Statutory Interpretation
¶ 18 This case involves an interpretation of the Act and amendments thereto, as well as the
Rights of Married Persons Act. We review de novo the interpretation of a statute as a question of
law. Abruzzo v. City of Park Ridge, 231 Ill. 2d 324, 332 (2008). “Courts presume that the
legislature envisions a consistent body of law when it enacts new legislation.” Lily Lake Road
Defenders v. County of McHenry, 156 Ill. 2d 1, 9 (1993). “[W]here there is an alleged conflict
between two statutes, a court has a duty to construe those statutes in a manner that avoids an
inconsistency and gives effect to both statutes, where such an interpretation is reasonably
possible.” McNamee v. Federated Equipment & Supply Co., 181 Ill. 2d 415, 427 (1998).
“[W]here the passage of a series of legislative acts results in confusion and consequences which
the legislature may not have contemplated, courts must construe the acts in such a way as to
reflect the obvious intent of the legislature and to permit practical application of the statutes.”
People ex rel. Community High School District No. 231 v. Hupe, 2 Ill. 2d 434, 448 (1954).
¶ 19 When interpreting these statutes, and thereby determining and resolving any conflict
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between them, we are aided by the canons of statutory construction. Our primary goal is to
ascertain and give effect to the intention of the legislature. Ries v. City of Chicago, 242 Ill. 2d
205, 215-16 (2011). The language of a statute is the most reliable indicator of the legislature’s
objectives in enacting a particular law. Alvarez v. Pappas, 229 Ill. 2d 217, 228 (2008). If the
plain language used in the statute is clear and unambiguous, we are not at liberty to depart from
its plain meaning. Ries, 242 Ill. 2d at 216. “We construe the statute as a whole and cannot view
words or phrases in isolation but, rather, must consider them in light of other relevant provisions
of the statute.” In re E.B., 231 Ill. 2d 459, 466 (2008). “Moreover, a court will avoid an
interpretation of a statute that would render any portion of it meaningless or void.” McNamee,
181 Ill. 2d at 423.
¶ 20 A court generally “will not utilize extrinsic aids of statutory interpretation unless the
statutory language is unclear or ambiguous.” Brunton v. Kruger, 2015 IL 117663, ¶ 24. “ ‘A
statute is ambiguous if it is capable of being understood by reasonably well-informed persons in
two or more different ways.’ ” Id. (quoting Krohe v. City of Bloomington, 204 Ill. 2d 392, 395-96
(2003)). A court “is not bound by the literal language of a statute that produces a result
inconsistent with clearly expressed legislative intent, or that yields absurd or unjust
consequences not contemplated by the legislature.” In re D.F., 208 Ill. 2d 223, 230 (2003). In
construing a statute, “we presume that the legislature did not intend absurdity, inconvenience or
injustice.” Alvarez, 229 Ill. 2d at 228. A court “will avoid a construction leading to an absurd
result, if possible.” Hubble v. Bi-State Development Agency of the Illinois-Missouri Metropolitan
District, 238 Ill. 2d 262, 283 (2010) (citing City of East St. Louis v. Union Electric Co., 37 Ill. 2d
537, 542 (1967)).
¶ 21 Further, if the statutory language is not clear, an examination of the reason and necessity
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for the law, the evils which the legislature sought to remedy and the purposes intended to be
accomplished is particularly important. Harvel v. City of Johnston City, 146 Ill. 2d 277, 283
(1992). “Where the letter of the statute conflicts with the spirit of it, the spirit will be controlling
when construing the statute’s provisions.” Gill v. Miller, 94 Ill. 2d 52, 56 (1983).
¶ 22 Additionally, the legislature is presumed to be aware of judicial decisions interpreting
legislation. Pielet v. Pielet, 2012 IL 112064, ¶ 48 (citing Kozak v. Retirement Board of the
Firemen’s Annuity & Benefit Fund, 95 Ill. 2d 211, 218 (1983)). “ ‘Where statutes are enacted
after judicial opinions are published, it must be presumed that the legislature acted with
knowledge of the prevailing case law.’ ” Burrell v. Southern Truss, 176 Ill. 2d 171, 176 (1997)
(quoting People v. Hickman, 163 Ill. 2d 250, 262 (1994)). Similarly, the legislature is presumed
to have acted with such knowledge when amending a statute. Morris v. William L. Dawson
Nursing Center, Inc., 187 Ill. 2d 494, 499 (1999). Therefore, when the legislature reenacts a
statute without modification it is assumed to have intended the same effect. Williams v.
Crickman, 81 Ill. 2d 105, 111 (1980); People ex rel. Klaeren v. Village of Lisle, 316 Ill. App. 3d
770, 782 (2000).
¶ 23 With these rules of statutory interpretation in mind, we turn to address the issues the
County raises on appeal.
¶ 24 Intervention and the Health Care Services Lien Act
¶ 25 The County argues it was not required to intervene in the underlying personal injury
action to protect its lien. We agree. The Act provides in relevant part:
“The lien shall include a written notice containing the name and address of the
injured person, the date of the injury, the name and address of the health care
professional or health care provider, and the name of the party alleged to be liable
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to make compensation to the injured person for the injuries received. The lien
notice shall be served on both the injured person and the party against whom the
claim or right of action exists. Notwithstanding any other provision of this Act,
payment in good faith to any person other than the healthcare professional or
healthcare provider claiming or asserting such lien prior to the service of such
notice of lien shall, to the extent of the payment so made, bar or prevent the
creation of an enforceable lien. Service shall be made by registered or certified
mail or in person.” 770 ILCS 23/10(b) (West 2004).
In this case, the County provided notice to plaintiff at his attorney’s office by certified mail. 7
Additionally, plaintiff, by filing a petition to strike and extinguish the lien, demonstrated actual
notice of the lien. Although the record contains no evidence the County served notice on the
tortfeasors, it is apparent the tortfeasors had notice of the lien through the appearance of their
counsel at the hearing on the petition. Accordingly, we conclude the lien is valid for the purpose
of notification. See Cirrincione v. Johnson, 184 Ill. 2d 109, 113-14 (1998). To invalidate the lien
due to technicalities would not only elevate form over substance, but would also be contrary to
the purpose of the statutory lien, which is to lessen the financial burden on those who treat
nonpaying injured individuals. Id.¶ 26 Furthermore, pursuant to statute, “[t]he lien of a health care professional or health care
provider under this Act shall, from and after the time of the service of the lien notice, attach to
any verdict, judgment, award, settlement, or compromise secured by or on behalf of the injured
person.” 770 ILCS 23/20 (West 2004). Consequently, under the Act, “[o]nly when a recovery is
made can the lien come into existence, because absent a provision to the contrary, a lien is
7
In fact, the parties stipulated to the medical bills at trial, but not whether the bills were
reasonable and necessary.
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created only when there is property on hand to which it may attach.” Estate of Cooper, 125 Ill.
2d at 369. Consistent with Estate of Cooper, our supreme court subsequently ruled that, unlike a
subrogee or a member of a class action, a hospital lienholder has no standing to participate in a
plaintiff’s personal injury lawsuit, and cannot bring independent causes of action against the
tortfeasors. Wendling v. Southern Illinois Hospital Services, 242 Ill. 2d 261, 270 (2011). Insofar
as a hospital lienholder has no standing to participate in a plaintiff’s personal injury lawsuit, the
County cannot be required to intervene in such a suit on the Hospital’s behalf. Id. 8
¶ 27 Enforcement of a Health Care Services Lien Against a Minor
¶ 28 The County next argues a hospital lien may be enforced against a minor. The Act
provides in part:
“Every health care professional and health care provider that renders any service
in the treatment, care, or maintenance of an injured person, except services
rendered under the provisions of the Workers’ Compensation Act or the Workers’
Occupational Diseases Act, shall have a lien upon all claims and causes of action
of the injured person for the amount of the health care professional’s or health
care provider’s reasonable charges up to the date of payment of damages to the
injured person. The total amount of all liens under this Act, however, shall not
exceed 40% of the verdict, judgment, award, settlement, or compromise secured
by or on behalf of the injured person on his or her claim or right of action.” 770
ILCS 23/10(a) (West 2004).
The Act, in referring to the “injured person,” does not distinguish between minors and adults. Id.Accordingly, the County contends the plain language of the Act permits a hospital lien to be
8
On rehearing, neither plaintiff nor the amicus has taken issue with this conclusion.
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enforced against a minor.
¶ 29 In contrast, on rehearing plaintiff sets forth a number of arguments as to why a lien under
the Act may not be enforced against a minor. Plaintiff’s central contention is that there can be no
lien against him because there is no underlying debt based on his status as a minor. Plaintiff
notes the Uniform Fraudulent Transfer Act (740 ILCS 160/2(h) (West 2012)) defines “lien” as “a
charge against or an interest in property to secure payment of a debt or performance of an
obligation, and includes a security interest created by agreement, a judicial lien obtained by legal
or equitable process or proceedings, a common-law lien, or a statutory lien.” Plaintiff also notes
the Uniform Commercial Code (810 ILCS 5/2A-103(1)(r) (West 2012)) provides a somewhat
similar definition; that a “lien” is “a charge against or interest in goods to secure payment of a
debt or performance of an obligation, but the term does not include a security interest.”
Plaintiff further observes the elements of an equitable lien are: “ ‘(1) a debt, duty, or obligation
owing by one person to another, and (2) a res to which that obligation attaches.’ ” Lewsader v.
Wal-Mart Stores, Inc., 296 Ill. App. 3d 169, 178 (1998) (quoting Paine/Wetzel Associates, Inc. v.
Gitles, 174 Ill. App. 3d 389, 393 (1988)). We note that this court has held there is no need for a
hospital lien where the underlying debt or obligation has been extinguished. N.C. v. A.W., 305 Ill.
App. 3d 773, 775 (1999).
¶ 30 Plaintiff’s argument regarding the debt overlooks points of statutory and common law.
First, in Estate of Enloe, this court ruled that the clear and mandatory language of the Act creates
such debts and liability of the injured person secured by lien, regardless of any such remedy at
common law. Estate of Enloe, 109 Ill. App. 3d at 1091. This ruling is consistent with our
supreme court’s observation that the Act allows hospitals to provide treatment and thereby enter
into a creditor-debtor relationship. Estate of Cooper, 125 Ill. 2d at 368; Maynard v. Parker, 75
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Ill. 2d 73, 75 (1979). Indeed, one reason the Act exists is because hospitals may “enter into a
creditor-debtor relationship without benefit of the opportunity usually afforded a creditor to
ascertain the prospective debtor’s ability to pay.” Maynard, 75 Ill. 2d at 75.
¶ 31 Second, under the common law, our supreme court has long held a minor or minor’s
estate may incur debt or other obligations by operation of law. See, e.g., Smith v. Smith, 69 Ill.
308, 312 (1873). It is also well established, as a general rule, that a minor or the minor’s estate
may be liable for necessaries furnished to the minor. In re Estate of Johnstone, 64 Ill. App. 2d
447, 449 (1965); Pelham v. Howard Motors, Inc., 20 Ill. App. 2d 528, 529 (1959); see Zazove v.
Minneapolis, St. Paul & Sault Ste. Marie Ry. Co., 218 Ill. App. 534, 538 (1920) (professional
services of an attorney may be a necessary for which an infant is responsible). Indeed, plaintiff’s
brief on rehearing concedes a minor is liable for the cost of necessaries. Plaintiff does not dispute
on appeal that the medical services rendered to him were necessaries although there was no
evidence of this fact presented during the trial. See, e.g., Estate of Woodring v. Liberty Mutual
Fire Insurance Co., 71 Ill. App. 3d 158, 160 (1979). Accordingly, whether by operation of the
Act or the common law, a debt exists in this case. 9
¶ 32 While a minor may incur a debt, there is no basis for the County to seek reimbursement
in this case, due to the operation of what is commonly known as the family expenses statute,
which is a provision of the Rights of Married Persons Act (family expenses statute) (750 ILCS
65/15 (West 2004)). The family expenses statute provides, in relevant part:
“The expenses of the family and of the education of the children shall be
chargeable upon the property of both husband and wife, or of either of them, in
9
Historically, a minor’s liability for necessaries was founded on concepts such as
quantum meruit and quantum valebant. See, e.g., Falconer v. May, Stern & Co., 165 Ill. App.
598, 600 (1911). Therefore, a reasonable fee for services rendered may be considered an unpaid
debt. See Scholtens v. Schneider, 173 Ill. 2d 375, 391 (1996) (legal services).
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favor of creditors therefor, and in relation thereto they may be sued jointly or
separately.” 750 ILCS 65/15(a)(1) (West 2004).
The identical language now codified at section 15(a)(1) has existed since the statute was enacted
in 1874. See North Shore Community Bank & Trust Co. v. Kollar, 304 Ill. App. 3d 838, 842
(1999); Ill. Rev. Stat. 1874, ch. 68, ¶ 15. The purpose of this statute is to protect creditors. See
Proctor Hospital v. Taylor, 279 Ill. App. 3d 624, 627 (1996) (imposing liability against non-
custodial parents for expenses incurred on behalf of their children).
¶ 33 “[T]he term ‘family expense’ has not been, and perhaps cannot be, clearly defined.”
North Shore Community Bank & Trust Co. v. Kollar, 304 Ill. App. 3d at 843 (quoting White v.
Neeland, 114 Ill. App. 3d 174, 175 (1983)). 10 It is well established, however, that under the
family expenses statute, parents are liable for the medical expenses of their minor children.
Graul v. Adrian, 32 Ill. 2d 345, 347 (1965). Consequently, our supreme court has held that a
parent may recover, in a separate action, medical and funeral expenses incurred by the parent for
a child whose death occurs as the result of the wrongful act of a third party. Id.¶ 34 Since the Graul decision, this court has held that, due to the operation of the family
expenses statute, any cause of action to recover for medical expenses is that of the parent and not
of the child. For example, in Bibby v. Meyer, 60 Ill. App. 2d 156, 163 (1965), decided shortly
after Graul, the child’s attempt to recover medical expenses in his tort action was held barred by
a release the mother had signed. In Kennedy v. Kiss, 89 Ill. App. 3d 890, 894 (1980), a case in
which the parents assigned their cause of action to the minor plaintiff, this court held that
because the cause of action for medical expenses lay with the parents, it was essential for the
10
Our supreme court has defined family expenses generally as “expenses for articles
which conduce in a substantial manner to the welfare of the family generally and tend to
maintain its integrity.” Carson Pirie Scott & Co. v. Hyde, 39 Ill. 2d 433, 436 (1968).
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minor plaintiff to both plead and prove the parents were free from contributory negligence. In
Reimers v. Honda Motor Co., 150 Ill. App. 3d 840, 843 (1986), this court held that because a
parent’s right to recover medical expenses arises out of the injury to the minor child, it is
governed by the applicable statutory limitations period for derivative causes of action. Although
the two rights of action are separate and distinct, the parent’s cause of action is frequently
merged with the child’s cause of action into a single lawsuit. Doe v. Montessori School of Lake
Forest, 287 Ill. App. 3d 289, 302 (1997). Within said cause of action, a parent typically seeks
medical expenses under a separate count. See Goldberg v. Ruskin, 113 Ill. 2d 482, 484 (1986);
Primax Recoveries, Inc. v. Atherton, 365 Ill. App. 3d 1007, 1013 (2006).
¶ 35 Furthermore, there is a line of cases generally holding that an insurer may not enforce a
subrogation lien against the recovery received by a minor’s estate. 11 E.g., Estate of Aimone v.
State of Illinois Health Benefit Plan/Equicor, 248 Ill. App. 3d 882, 883-84 (1993); Kelleher v.
Hood, 238 Ill. App. 3d 842, 849 (1992); In re Estate of Hammond, 141 Ill. App. 3d 963, 965
(1986); Estate of Woodring, 71 Ill. App. 3d at 160. These subrogation lien cases are based not
only on the rule that a minor child cannot be a third-party beneficiary of an insurance contract,
but also on the premise that only the parents can recover for the child’s medical expenses.
Primax Recoveries, Inc. v. Atherton, 365 Ill. App. 3d 1007, 1011 (2006). As only a parent can
recover for his or her child’s medical expenses, it follows that the County cannot pursue a lien
against plaintiff under the Act as it is the parent, and not the minor, who is liable for those
expenses. See Graul, 32 Ill. 2d at 347. Accordingly, where the parent has not assigned his or her
cause of action to the minor, regardless of whether or not medical expenses are awarded, under
11
This court has upheld the validity of subrogation liens where the circuit court found the
minor a third-party beneficiary of the relevant insurance policy. See Sosin v. Hayes, 258 Ill. App.
3d 949, 952-53 (1994); In re Estate of Scott, 208 Ill. App. 3d 846, 849-50 (1991).
16
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the Act an award cannot be attached to any judgment obtained by a minor unless the lien is
sought under the family expenses statute. Further, as noted by our supreme court in Graul, the
language of the family expenses statute specifically makes the expenses of the family chargeable
against the parents of the minor. See id.¶ 36 In addition, the amicus argues that the “injured person” identified in section 10(a) of the
Act should not be limited to a minor patient, but may be interpreted to extend to the minor’s
parent or parents. In Claxton v. Grose, 226 Ill. App. 3d 829 (1992), this court ruled that a father
could be considered an injured person entitled to bring suit under section 16 of the Illinois
Animal Control Act (Ill. Rev. Stat. 1989, ch. 8, ¶ 366), even though his son was the person
actually attacked by the defendant’s Doberman pinscher, based in part on the operation of the
family expenses statute. Claxton, 226 Ill. App. 3d at 831-32. The amicus argues that the same
logic compels a similar interpretation of the Act in this case.
¶ 37 We agree that the reasoning in Claxton supports the conclusion that the “injured person”
in section 10(a) of the Act extends to the parents of a minor. See id. In addition, the tension
between the Act and the family expenses statute is best resolved by including parents within the
scope of the term “injured person” in section 10(a) of the Act. Such an interpretation is within
the object, spirit and the meaning of the Act. See Harvel, 146 Ill. 2d at 284. The contrary,
narrower, interpretation of section 10(a) would produce an anomalous or absurd result. See
Stewart v. Industrial Comm’n, 115 Ill. 2d 337, 340 (1987). The broader interpretation avoids an
inconsistency and gives effect to both statutes (McNamee, 181 Ill. 2d at 427), particularly where
the purpose of both statutes is to aid creditors. Given the longstanding rule that a cause of action
to recover for medical expenses is that of the parent and not the child, the judgment that the
health care professional or provider would seek to attach will generally be awarded to a parent,
17
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not the minor. See Graul, 32 Ill. 2d at 347. Furthermore, in cases where damages for medical
expenses are not awarded, or the judgment is insufficient to satisfy a lien, the health care
professional or provider would ultimately seek to recover from the minor’s parent or parents in
any event. Including parents within the definition of an “injured person” in section 10(a) of the
Act thereby assists health care professionals and providers to the extent that it will reduce
duplicative and inefficient proceedings to enforce their liens. Conversely, excluding parents from
the definition would “set[ ] the stage for inequities that the legislature could not have intended
and failed to recognize when it debated and enacted the law.” Burrell, 176 Ill. 2d at 179(Harrison, J., dissenting); see People ex rel. Community High School District No. 231, 2 Ill. 2d at
448. 12
¶ 38 In response to the dissent, we observe that on questions of statutory interpretation, our
primary goal is to interpret and construe statutes so that the intention of the legislature is
ascertained and given effect. Belfield v. Coop, 8 Ill. 2d 293, 306 (1956). All other rules of
statutory construction are subordinate to this cardinal principle. Sylvester v. Industrial Comm’n,
197 Ill. 2d 225, 232 (2001). Thus, we defer not only to the interpretations of higher courts, but
also to the intent of the legislature. Further, we must also defer to precedent under the doctrine of
12
Our initial opinion in this matter relied on dicta in Anderson v. Department of Mental
Health & Developmental Disabilities, 305 Ill. App. 3d 262 (1999), suggesting that removing the
phrase “based on the negligent or wrongful act” from the prior version of the Act “would permit
the lien to be attached to any verdict or judgment recovered by the injured person.” (Internal
quotation marks omitted.) Id. at 266. The Act was amended subsequent to Anderson (see Galvan
v. Northwestern Memorial Hospital, 382 Ill. App. 3d 259, 272 n.3 (2008)), and removed the
phrase “based on the negligent or wrongful act” (compare 770 ILCS 35/2 (West 1996), with 770
ILCS 23/20 (West 2004)). Although the Anderson court may have been correct about the effect
of such an amendment when looking solely at the plain language of the Act, we are mindful that
the Anderson court was not required to address the interaction of the Act and the family expenses
statute. Accordingly, we conclude that the dicta in Anderson is not persuasive authority on this
point of law.
18
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stare decisis. See O’Casek v. Children’s Home & Aid Society of Illinois, 229 Ill. 2d 421, 440
(2008). The challenge a reviewing court faces is that statutory language and existing precedent
narrow the range of possible outcomes, and accordingly does not dictate a single permissible
answer in every case. Where a conflict exists between two statutes, our duty is to construe those
statutes in a manner that avoids an inconsistency and gives effect to both statutes. See McNamee,
181 Ill. 2d at 427. Moreover, statutes relating to the same subject are governed by one spirit and
a single policy, and we must presume that the legislature intended these statutes to be consistent
and harmonious. Uldrych v. VHS of Illinois, Inc., 239 Ill. 2d 532, 540 (2011).
¶ 39 Here, we look at the Act and the family expenses statute in harmony so that the goal of
the legislature can be accomplished. In this instance, the Act and the family expenses statute is
best resolved by including parents within the scope of the term “injured person” in section 10(a)
of the Act. Such an interpretation is within the object, spirit and the meaning of the Act. See
Harvel, 146 Ill. 2d at 284. The contrary, narrower, interpretation of section 10(a) would produce
an anomalous or absurd result. See Stewart v. Industrial Comm’n, 115 Ill. 2d 337, 340 (1987).
The broader, harmonious interpretation avoids an inconsistency and gives effect to both statutes,
which is our primary goal. McNamee, 181 Ill. 2d at 427. This is particularly relevant where the
purpose of both the Act and the family expenses statute is to aid creditors. Therefore, it is clear
that the intent of the legislature was to have both the Act and the family expenses statute work in
harmony.
¶ 40 In support of its position, the dissent cites four cases, including two that are outside of our
jurisdiction and one that is nonbinding on this court, for the proposition that “a parent’s recovery
of [medical] expenses may be estopped in favor of the child where the parent brings the suit as
next friend.” Infra ¶ 65. The crucial distinction in these cases is that the aggrieved parties were
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ultimately awarded the medical expenses they sought (White v. Seitz, 258 Ill. App. 318, 321
(1930), Fox v. Hopkins, 343 Ill. App. 404, 405-06 (1951), and Abbondola v. Kawecki, 29
N.Y.S.2d 530, 531 (N.Y. Sup. Ct. 1941)) or the court stated, as a general proposition of law, that
a parent was estopped from bringing a future suit for medical expenses where the child had
already recovered the medical expenses (Ellington v. Bradford, 86 S.E.2d 925, 927 (N.C. 1955)).
In this case, however, the trial court expressly found that Prichett failed to establish her claim for
medical expenses at trial. Thus, no medical expenses were adjudged. This portion of the trial
court’s findings were never appealed. Accordingly, the cases cited by the dissent are inapposite
to the case at bar.
¶ 41 Estate of Cooper and Estate of Enloe
¶ 42 The County, however, relies on Estate of Cooper and Estate of Enloe. 13 The circuit court
specifically rejected the application of those decisions to this matter. The County’s argument
implicates stare decisis principles. “The doctrine of stare decisis expresses the policy of the
courts to stand by precedents and not to disturb settled points.” Clark v. Children’s Memorial
Hospital, 2011 IL 108656, ¶ 102. Stare decisis requires a court to follow the decision of a
superior court; it does not bind courts to follow the decisions of equal or inferior courts.
O’Casek, 229 Ill. 2d at 440. “Thus, the opinion of one district, division, or panel of the appellate
court is not binding on other districts, divisions, or panels.” Id. Nevertheless, horizontal, district-
to-district stare decisis is “functionally desirable.” Gilbert v. Municipal Officers’ Electoral
Board, 97 Ill. App. 3d 847, 848 (1981). When a rule of law has been settled, contravening no
statute or constitutional principle, such rule ought to be followed absent good cause or
compelling reasons to depart from such rule. Vitro v. Mihelcic, 209 Ill. 2d 76, 82 (2004). “Where
13
The County also cites in passing Wills v. Foster, 229 Ill. 2d 393 (2008), and Maynard v.
Parker, 75 Ill. 2d 73 (1979), which do not involve minor plaintiffs.
20
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a court of review reexamines an issue already ruled upon and arrives at an inapposite decision,
the straight path of stare decisis is affected, as well as the reliance interests of litigants, the
bench, and the bar.” O’Casek, 229 Ill. 2d at 440. For the following reasons, we conclude our
supreme court’s decision in Estate of Cooper is not applicable in this case, and that Estate of
Enloe should not be followed.
¶ 43 The County first relies on Estate of Cooper, which involved the settlement of a personal
injury claim by the estate of a minor. Our supreme court stated that “as a debtor of [the hospital],
the estate is obligated to pay for treatment rendered to [the minor] out of any available
resources.” Estate of Cooper, 125 Ill. 2d at 369. The issues of whether the creation of a hospital
lien was precluded by the injured person’s minor status and the operation of the family expenses
statute, however, were not raised in Estate of Cooper. Rather, the issue decided was the
appropriate time for enforcement of a hospital lien, the existence of which was not disputed, and
whether a lien can be enforced against an annuity. Id. at 368. Thus, we conclude the holding in
Estate of Cooper is not applicable in this appeal. 14
¶ 44 The County also relies upon Estate of Enloe, in which this court rejected the argument
that a minor could not be held liable under a hospital lien statute (Ill. Rev. Stat. 1979, ch. 82,
¶ 97) simply because parents are liable for the medical expenses of their minor children under the
family expenses statute. Estate of Enloe, 109 Ill. App. 3d at 1091-92. The Enloe court observed
that Estate of Woodring, which stated the parents were primarily liable for the minor’s medical
14
The facts in Estate of Cooper are also strikingly different from those presented in this
appeal. The circuit court of Cook County accepted the settlement agreement at issue and
authorized payment contingent upon the adjudication of hospital liens. Estate of Cooper, 125 Ill.
2d at 366. Moreover, this court’s opinion in the case noted that, as part of the settlement with
Allstate Insurance Company, the minor’s parent and guardian agreed to indemnify and hold the
insurer and its insured harmless from any third-party lien upon the proceeds of the compromise.
See In re Estate of Cooper, 156 Ill. App. 3d 270, 271 (1987).
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expenses under the family expenses statute, was concerned with subrogation, which applies only
when a debt was paid for one who was primarily liable. Id. at 1091. In contrast, the primary-
secondary liability distinction in Estate of Enloe was not crucial, because the case involved the
Act. See id. The Enloe court then focused upon the word “chargeable” in the family expenses
statute, reasoning:
“We agree with petitioner that the statute merely provides an alternative
remedy for creditors. Chargeable means ‘capable of being charged to a particular
account or as an expense or liability ***.’ (Webster’s Third New International
Dictionary 377 (1976).) Had the legislature intended for this statute to be the sole
remedy for creditors, the legislature could easily have stated that the expenses
‘shall be charged’ upon the property of the parents. Since the legislature instead
merely stated the expenses shall be capable of being charged to the family’s
property, it follows that this is not an exclusive remedy and therefore it does not
conflict with the clear language of the Hospital Liens Statute.” Id. at 1091-92.
Estate of Enloe was decided by the Fourth District of this court; it has been followed on the point
at issue only once, by the Third District. In re Estate of Norton, 149 Ill. App. 3d 404, 405 (1986).
Conversely, in Reimers, the First District held (based on the family expenses statute) that any
cause of action to recover for medical expenses is that of the parent and not the child. Reimers,
150 Ill. App. 3d at 843. Similarly, Kennedy, which held in part that the cause of action for
medical expenses lay with the parents, is a First District decision. Kennedy, 89 Ill. App. 3d at
894.
¶ 45 Clearly, Reimers, Kennedy, and the other cases cited by plaintiff did not directly consider
the effect of the family expenses statute on the enforceability of a hospital lien. Nevertheless, the
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rule established in those cases is that the cause of action belongs to the parent and not the child.
The rule thus runs contrary to the creation of a lien for medical expenses where an injured minor
has parents. The Enloe court only considered Estate of Woodring and distinguished the case as
addressing primary versus secondary liability in the context of subrogation. Estate of Enloe, 109
Ill. App. 3d at 1091. While we agree that a hospital lienholder under the Act is unlike a subrogee
(see Wendling, 242 Ill. 2d at 270), the Enloe court, however, did not address Bibby or Kennedy,
neither of which involved subrogation. 15 Moreover, the Enloe court did not consider that the
subrogation lien cases are based on the rules that (1) a minor child cannot be a third-party
beneficiary of an insurance contract and (2) only the parents can recover for the child’s medical
expenses. See Primax Recoveries, Inc., 365 Ill. App. 3d at 1011.
¶ 46 We also observe the family expenses statute was amended prior to the decision in Estate
of Enloe and after the decisions in Bibby and Kennedy. See Pub. Act 82-262, § 1 (eff. Jan. 1,
1982). The legislature is therefore presumed to have been aware of these decisions and to have
acted with such awareness when amending the statute. Burrell, 176 Ill. 2d at 176; Pielet, 2012 IL
112064, ¶ 48; Morris, 187 Ill. 2d at 499. The legislature here chose to amend the statute in other
respects, but reenacted the language relevant to this matter intact. Thus, we presume the
legislature intended the family expenses statute be interpreted as this court did in Bibby and
Kennedy. See Williams, 81 Ill. 2d at 111; Klaeren, 316 Ill. App. 3d at 782. 16
¶ 47 In short, Estate of Enloe did not account for the weight of authority, including prior
15
We do not fault the Enloe court on this point, as Bibby and Kennedy may not have been
brought to the court’s attention by the litigants.
16
The relevant portion of the family expenses statute was also reenacted after the decision
in Estate of Enloe. See Pub. Act 86-689, § 1 (eff. Jan. 1, 1990). The question here, however, is
whether the Estate of Enloe decision adequately accounted for the weight of authority and the
presumed endorsement of that case law by the legislature in 1982.
23
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authority, interpreting the family expenses statute or rebut the legislature’s presumed
endorsement of that interpretation. Thus, from the standpoint of stare decisis, the Enloe court did
not provide good cause or compelling reasons to depart from the prior case law bearing on the
issue. See Vitro, 209 Ill. 2d at 82. Moreover, departing from well-established case law would
adversely affect the reliance interests of litigants, the bench, and the bar. See O’Casek, 229 Ill.
2d at 440. For these reasons, we choose to follow the interpretation of the family expenses statute
in Reimers and Kennedy. This interpretation is also consistent with the subrogation lien cases,
which are partially based on the rule established in Bibby and Kennedy. Accordingly, we
conclude in this matter, where Pritchett did not assign her cause of action for medical expenses
to the injured minor plaintiff, no lien exists under the Act. Thus, the circuit court did not err in
extinguishing the purported lien.
¶ 48 While we have determined the County must go through the family expenses statute in
order to recover the medical expenses incurred by plaintiff, we further interpret the language of
the Act to limit the creation of a lien to claims or causes of action seeking medical expenses. As
previously noted, section 10(a) of the Act provides health care providers “shall have a lien upon
all claims and causes of action of the injured person for the amount of the health care
professional’s or health care provider’s reasonable charges up to the date of payment of damages
to the injured person.” 770 ILCS 23/10(a) (West 2004). The phrase “all claims and causes of
action of the injured person” is limited by the phrase “for the amount of the health care
professional’s or health care provider’s reasonable charges up to the date of payment of damages
to the injured person.” Id.; In re E.B., 231 Ill. 2d at 467. The latter phrase does not merely
describe the amount of a lien; it also describes the nature of the claim triggering the creation of
24
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the lien, i.e., claims for reasonable medical charges. 17 We note that in this case, the trial court did
not enter an award of medical expenses. As we interpret the Act to mean that the hospital lien
can only attach to an award of medical expenses, and since the trial court did not award medical
expenses, there can be no lien.
¶ 49 Given our conclusion on this issue, we need not address the remainder of the County’s
arguments on appeal.
¶ 50 CONCLUSION
¶ 51 In sum, we conclude the County’s purported lien was not invalidated for technical
reasons. In addition, the County was not required to intervene in the personal injury lawsuit to
protect its purported lien. The County, however, does not have a lien under the Act where the
parent did not assign her cause of action for medical expenses to the injured minor plaintiff. For
all of the aforementioned reasons, the judgment of the circuit court of Cook County is affirmed.
¶ 52 Affirmed.
¶ 53 JUSTICE GORDON, specially concurring.
¶ 54 I agree with the majority's result, but for additional important reasons, and to provide
guidance to the legal community and legislature in the future, I must write separately.
¶ 55 It is clear under Illinois law that, if the plain language used in a statute is clear and
unambiguous, the appellate court is not at liberty to depart from its plain meaning. Ries, 242 Ill.
2d at 216. The Act which is the subject of this appeal says that Stroger Hospital, which is a
hospital operated by the County of Cook, "shall have a lien upon all claims and causes of action
of the injured person for the amount of the health care *** provider's reasonable charges," not to
17
We observe that “reasonable charges” in this context are generally confined to charges
relating to injuries to the patient. See Gaskill v. Robert E. Sanders Disposal Hauling, 249 Ill.
App. 3d 673, 677 (1993).
25
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"exceed 40% of the verdict [or] judgment." 770 ILCS 23/10(a) (West 2004). The clear and
unambiguous language of the statute attaches its lien to the injured person's loss of normal life,
disability, pain and suffering, scarring, and all other damages because those elements of damages
are the injured person's claims and they are also part of the injured person's cause of action. The
Act does not say that the lien is enforceable only as to the medical recovery by the injured party.
To read this into the Act changes the clear and unambiguous language of the statute.
¶ 56 Section 20 of the Act further tells us that the lien attaches to the entire verdict and
judgment, which again includes the injured person's loss of normal life, disability, pain and
suffering, scarring, and all other damages. 770 ILCS 23/20 (West 2004). Again, there is no
limitation specified to only the medical expenses included in a verdict, judgment, or settlement.
A court of review must construe the statute as a whole and cannot view words or phrases in
isolation but, rather, must consider them in light of other relevant provisions of the statute. In re
E.B., 231 Ill. 2d 459, 466 (2008). The lawyers for the hospital argue that the lien attaches to the
entire verdict because that is what the statute says. I agree, but I find the statute to be a violation
of the public policy in Illinois.
¶ 57 In Illinois, causes of action for personal torts are not assignable. Bernardini v. Home &
Automobile Insurance Co., 64 Ill. App. 2d 465, 467 (1965). In the 1960s, for the first time in the
history of Illinois, medical pay subrogation was placed into automobile insurance policies and in
the Bernardini case, the lower court found that the subrogation of medical payments was void as
against public policy because it was an assignment of a tort. The appellate court reversed, finding
that the medical subrogation claim was not against public policy because its wording limited
recovery in a third party tort action only to the medical expenses and therefore was not an
assignment of a tort. Bernardini, 64 Ill. App. 2d at 466-67. The Bernardini court found that
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subrogation of the medical expenses operated only to secure contribution and indemnity,
whereas an assignment transfers the whole claim. Bernardini, 64 Ill. App. 2d at 468 (citing
Damhesel v. Hardware Dealers Mutual Fire Insurance Co., 60 Ill. App. 2d 279 (1965) and
Remsen v. Midway Liquors, Inc., 30 Ill. App. 2d 132 (1961)). The insurance policy in Bernardini
limited the right to subrogation of the medical expenses only and unless there was a recovery of
medical expenses by the insured against a tortfeasor, there would be no recovery for the
insurance company. Bernardini, 64 Ill. App. 2d at 467-68.
¶ 58 There are two types of subrogation, one is by contract as is found in insurance policies,
and the other is by statute as found in the Act here. Remsen, 30 Ill. App. 2d at 143. The legal
problem that exists in the Act is that the language provides as assignment of the entire claim of
the injured person subject to statutory limitations 18 and that concept is void as against public
policy. Even if legal scholars believe that the Act is not a statutory subrogation, my result would
be the same because the taking of the entire claim of the injured person is still void as against
public policy.
¶ 59 Bernardini is still good law and has been cited in many similar decisions. See In re Estate
of Mallerdino, 20 Ill. App. 3d 331, 336 (1974); Margolin v. Public Mutual Fire Insurance Co., 4
Ill. App. 3d 661, 668 (1972); Dinn Oil Co. v. Hanover Insurance Co., 87 Ill. App. 2d 206, 212
(1967). The fact that the majority reads the Act to include only medical expenses does not cure
this defect in the language of the Act.
18
Section 10 of the Act (770 ILCS 23/10(a) (West 2004)) provides health care providers
with "a lien upon all claims *** of the injured person." Section 10 then limits the amount of lien,
stating: "The total amount of all liens under this Act, however, shall not exceed 40% of the
verdict *** secured by or on behalf of the injured person on his or her claim." 770 ILCS 23/10(a)
(West 2004). Providers then "share proportionate amounts" within this 40% limit. 770 ILCS
23/10(c) (West 2004). However, no "category of *** health care provider (such as hospitals) ***
may receive more than one-third of the verdict." 770 ILCS 23/10(c) (West 2004).
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¶ 60 I realize that Stroger Hospital treats the poor and the indigent and can have great
difficulty in enforcing its liens to the detriment of all of the citizens of Cook County. However, it
is the job of the legislature to pass a law that will protect the hospital that is not against public
policy and existing law. I hope that the legislature will take another look at this statute and
change its wording limiting recovery only to the medical expense portion of any itemized verdict
and judgment. I find no problem for the lien to attach to any settlement or non-itemized verdict.
¶ 61 JUSTICE LAMPKIN, dissenting.
¶ 62 I disagree with the majority’s conclusions that: the County failed to provide a sufficiently
complete record on appeal and this court may presume that the mother of Akeem Manago, the
injured minor, was a plaintiff in this matter (supra ¶ 7 n.4); the County does not have a lien
under the Act because Akeem’s mother did not assign her cause of action for medical expenses
to Akeem (supra ¶¶ 1, 47); the Act limits the creation of liens to causes of action specifically
seeking medical expenses (supra ¶ 48, but see the special concurrence of Justice Gordon, supra
¶¶ 55-56); 19 and enforcement of a lien under the Act on an unemancipated minor’s award
conflicts with the rule that a cause of action to recover medical expenses belongs to the parents
and not the child (supra ¶ 45).
19
The author of the opinion states that “we further interpret the language of the Act to limit the
creation of a lien to claims or causes of action seeking medical expenses” and “we interpret the
Act to mean that the hospital lien can only attach to an award of medical expenses.” (Emphasis
added.) Supra ¶ 48. Nevertheless, this proposition seems to lack majority support because the
author of the special concurrence emphasizes that it is improper to read into the plain language of
the Act the limitation that “the lien is enforceable only as to the medical recovery of the injured
party.” Supra ¶ 55.
28
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¶ 63 I would find that the hospital has a valid lien and Akeem’s mother is estopped from
further claim against the defendant tortfeasors for medical expenses where she had the right to
recover medical expenses incurred by Akeem, brought suit on Akeem’s behalf as next friend,
alleged that medical expenses were incurred as a result of Akeem’s injury, and testified on
Akeem’s behalf, and where plaintiff Akeem did not appeal the trial court’s judgment denying
recovery for the medical expenses that had been stipulated to by the parties at the trial. I would
reverse the trial court’s ruling granting the motion to strike the hospital’s lien, and remand the
cause to the trial court to adjudicate the hospital’s lien against the $200,000 judgment awarded in
Akeem’s personal injury case.
¶ 64 In 2005, plaintiff Akeem sustained personal injuries while riding on top of a moving
elevator when he was a minor and an invitee on the property of a defendant tortfeasor. The
County’s hospital treated Akeem’s injuries, which resulted in a $79,512.53 hospital bill that has
not been paid. Meanwhile, Akeem, by his mother and next friend, sued the defendant tortfeasors
(the property owner, the property management company, and the company hired to provide
elevator maintenance) for damages for Akeem’s personal injuries and reimbursement of his
medical expenses. In 2009, the County served on the parties, pursuant to the Act, the hospital’s
lien notice for its unpaid medical services.
¶ 65 In 2011, the bench trial commenced without a court reporter, and the County did not
participate in or attend that trial. According to the record, Akeem’s mother testified at the bench
trial and the parties stipulated to the admission into evidence of the medical bills she was given
for Akeem’s treatment at the County’s hospital and the amounts of those bills. According to the
trial court’s December 7, 2011 written order, the “parties worked out an arrangement by which
some evidence was adduced through: live testimony, stipulation, and by way of the reading of
29
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that testimony by the Court outside the presence of the lawyers.” Thereafter, the trial court
awarded Akeem, who was 50% responsible for his own injuries, a $200,000 judgment for his
scarring, pain and suffering, and loss of a normal life. However, despite the parties’ stipulation to
the medical bills, the trial court found that “Plaintiffs [sic] adduced no testimony as to who was
responsible to pay for these medical bills,” and concluded that Akeem’s mother had “failed to
establish that she had any expectation that she had to pay any of the $79,512.53 hospital bill back
to [the County’s hospital]. The trial court denied any recovery for medical bills and retained
jurisdiction for purposes of any liens. Plaintiff’s counsel informed the County’s counsel of the
trial court’s ruling.
¶ 66 In January 2012, plaintiff moved the trial court to reconsider its ruling, arguing, inter
alia, that it was error to deny an award for medical expenses because the parties had stipulated to
the introduction into evidence of the itemized medical bills and the law mandates that parents are
liable for the medical expenses of their children. Also in January 2012, plaintiff moved to strike
and extinguish the hospital’s lien, arguing that no lien for medical services attached to Akeem’s
judgment because parents are responsible for payment of their children’s medical expenses and
the trial court did not award Akeem’s mother any damages for Akeem’s medical expenses. The
County filed its response, objecting to plaintiff’s petition to strike and extinguish the hospital’s
lien.
¶ 67 At the hearing on plaintiff’s motion to reconsider and motion to strike the lien, the trial
court faulted the County for not intervening during the trial to present evidence to protect its lien
and complained that “not a single bit of evidence was adduced saying that the mother was
responsible to pay [the medical bills].” The County responded that its lien was properly created
in accordance with the Act, the County had no duty to intervene in the personal injury litigation,
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and the settled law in Illinois provided that a hospital’s lien was enforceable against a minor’s
personal injury judgment.
¶ 68 The trial court denied plaintiff’s motion for reconsideration and granted plaintiff’s motion
to strike and extinguish the hospital’s lien. Thereafter, the trial court issued an agreed order for
plaintiff’s counsel to escrow $66,666.67 in lien funds. The County timely appealed the order
striking and extinguishing the hospital’s lien, but plaintiff did not appeal the denial of his motion
for reconsideration. The County asks this court to reverse the order striking and extinguishing its
lien and order that the hospital be paid the sum of $66,666.66, which is one-third of the $200,000
judgment.
¶ 69 The Act creates a statutory lien that compensates health care professionals or providers
for reasonable charges for any treatment, care or maintenance services rendered to an injured
person. 770 ILCS 23/10 (West 2008). By ensuring that health care professionals and providers
are compensated for their services, statutes like the Act lessen the burden on hospitals and other
medical providers imposed by nonpaying accident cases and induce hospitals to receive or
quickly treat patients injured in accidents without first considering whether those patients will be
able to pay the medical bills incurred. In re Estate of Cooper, 125 Ill. 2d 363, 368-69 (1988); 41
C.J.S. Hospitals § 22 (2016). Even though the Act has remedial features, the application of the
Act in the instant case could be deemed in derogation of the common-law doctrine of
necessaries, under which a parent is liable to provide necessary goods and services for his or her
child (see Hunt v. Thompson, 4 Ill. 179, 180 (1840)); accordingly, the Act should be strictly
construed when determining whether minors come within its operation (see In re W.W., 97 Ill. 2d
53, 57 (1983) (the State is not allowed to recover appeal costs incurred in juvenile adjudications
of guilt)).
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¶ 70 The requisites for the creation of a valid lien under the Act are the rendering of any
services in the treatment of an injured person and service of the notice of a lien in accordance
with the Act. 770 ILCS 23/10 (West 2008). The lien claimant has a continuing obligation under
the Act to permit parties in litigation related to the injuries to examine the injured person’s
records and to furnish statements regarding the injuries and treatment, and the lien shall
immediately become null and void if the lien claimant fails or refuses to give or file a statement
regarding the injuries or treatment. 770 ILCS 23/25 (West 2008). The lien is perfected by proper
service of notice, provided the lien claimant complies with any requests to furnish statements
regarding the injured person’s injuries and treatment, and attaches after service to any recovery
secured by or on behalf of the injured person. 770 ILCS 23/10, 20, 25 (West 2008); In re Estate
of Cooper, 125 Ill. 2d at 369. The plain language of the Act empowers the trial court not to
reduce the lien but rather to determine if the statutory requirements for a valid lien have been met
and, if so, to enforce the lien subject to statutory limits on the amount of recovery. 770 ILCS
23/30 (West 2008); In re Estate of Poole, 26 Ill. 2d 443, 445 (1962). The statutory limits on the
amount of recovery may be waived or reduced only by the lienholder. 770 ILCS 23/10(c) (West
2008).
¶ 71 Notwithstanding the strict construction of the Act in the instant case involving a minor,
the plain and unambiguous language of the Act establishes that the legislature defined the scope
of this lien very broadly. Specifically, the legislature has given the health care professional or
provider “a lien upon all claims and causes of action of the injured person.” (Emphasis added.)
770 ILCS 23/10 (West 2008). Moreover, the lien attaches to a certain percentage of a broad
category of property, i.e., “any verdict, judgment, award, settlement, or compromise secured by
or on behalf of the injured person.” (Emphasis added.) 770 ILCS 23/20 (West 2008).
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Significantly, the Illinois legislature did not include any language in the Act that disallows a
hospital lien or reduces that lien when the medical services have been provided to a minor; if the
legislature had intended such a result, it would have expressly provided language for it in the
statute. Hines v. Department of Public Aid, 221 Ill. 2d 222, 230 (2008) (court “may not annex
new provisions or substitute different ones, or read into the statute exceptions, limitations, or
conditions which the legislature did not express); Meier v. Olivero, 279 Ill. App. 3d 630, 632-33
(1996) (“A legislative enactment that prescribes the conditions essential to the existence and
preservation of a statutory lien may not be disregarded.”).
¶ 72 Clearly, the legislature’s intent was to allow hospital liens on minors’ recoveries from
judgments or settlements for their injuries because the entire Act is devoid of any language
limiting the recovery of minors. In fact, the Act expressly states that only the lienholder can
reduce the lien. 770 ILCS 23/10(c) (West 2008) (“The statutory limitations under this Section
may be waived or otherwise reduced only by the lienholder.”). Furthermore, there is no provision
in the Act limiting the attachment of the lien to a recovery designated as pertaining specifically
to medical expenses, and it is not the province of the courts to inject provisions not found in a
statute. Consequently, I cannot agree with the majority’s position that the hospital’s perfected
lien cannot attach to the $200,000 judgment Akeem obtained against the tortfeasors that caused
his injuries.
¶ 73 The general rule is that liens attach to a recovery for a minor even though the minor could
not contract for the services to create the underlying debt. In re Estate of Cooper, 125 Ill. 2d at
369 (allowing a hospital lien against a minor’s personal injury settlement); In re Estate of
McMillan, 115 Ill. App. 3d 1022 (1983) (trial court erred in reducing the hospital’s lien to less
than one-third of the settlement proceeds collected by the estate of the minor injured in an auto
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accident); In re Estate of Enloe, 109 Ill. App. 3d 1089, 1091 (1982) (the validity of a hospital’s
lien under the Act on the personal injury settlement of a minor was not dependent upon common-
law theories concerning the existence of a valid underlying contract between the infant and the
hospital); cf. Richmond v. Caban, 324 Ill. App. 3d 48, 53-54 (2001) (although a hospital lien may
attach to a minor’s personal injury settlement pursuant to the Act, the hold-harmless clause of the
HMO agreement, which was mandated by statute, provided that the hospital had no recourse
against the minor or the parents aside from two exceptions, so the lien was void unless it was
filed to recover payment for one of those exceptions); N.C. v. A.W., 305 Ill. App. 3d 773, 775
(1999) (a hospital may not assert lien rights in a minor’s estate if the minor’s insurer has already
reimbursed the hospital for the medical services rendered); In re Estate of Phillips, 163 Ill. App.
3d 935, 938 (1987) (hospital’s lien, which was filed after the court already had begun
distributing the proceeds of the minor’s personal injury settlement to medical creditors, was
untimely and thus not perfected); accord Commonwealth of Virginia v. Lee, 387 S.E.2d 770 (Va.
1990); Dade County v. Perez, 237 So. 2d 781 (Fla. Dist. Ct. App. 1970); Application of Charles
S. Wilson Memorial Hospital v. Puskar, 208 N.Y.S.2d 229 (N.Y. Sup. Ct. 1960).
¶ 74 The family expense statute (750 ILCS 65/15 (West 2008)), is an alternative rather than an
exclusive remedy for a hospital, which may still assert a lien under the Act against the minor’s
personal injury settlement or judgment. In re Estate of Enloe, 109 Ill. App. 3d at 1091-92.
Pursuant to the family expense statute, medical expenses incurred on behalf of a minor child are
family expenses and parents are liable for the medical expenses of their minor children. 750
ILCS 65/15(a)(1) (West 2008); Cullotta v. Cullotta, 287 Ill. App. 3d 967, 975 (1997).
Accordingly, any cause of action against a tortfeasor to recover for medical expenses is that of
the parent and not the child. Graul v. Adrian, 32 Ill. 2d 345, 347 (1965). However, where a cause
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of action for personal injuries to a minor child is brought by the child’s parent as next friend on
behalf of the child, the parent may waive the right to recover the money expended for the child in
paying medical expenses and allow the child to recover the same. Fox v. Hopkins, 343 Ill. App.
404, 411 (1951); see also White v. Seitz, 258 Ill. App. 318, 326 (1930), rev’d on other grounds,
342 Ill. 266 (1930). 20 Specifically, the actions of a parent in appearing as next friend in the
lawsuit and testifying on the child’s behalf serve to estop the parent from further claim against
the defendant tortfeasor on account of such payments for medical expenses. Fox, 343 Ill. App. at
411 (father was estopped from recovery for medical expenses where he filed personal injury
action as next friend on behalf of his daughter, alleged that medical expenses were incurred as a
result of the automobile collision, and prosecuted the suit until the trial began); White, 258 Ill.
App. at 326 (father was estopped from further claim against the defendant tortfeasor for medical
expenses where he brought suit on behalf of his minor son as next friend, had the right to waive
his right to recover the medical expenses incurred by the son in an automobile collision, and
appeared as next friend in this suit and testified on his son’s behalf).
¶ 75 Other jurisdictions also take the view that, in addition to formally assigning the right to
recover medical expenses to the child, the parent’s recovery of such expenses may be estopped in
favor of the child where the parent brings the suit as next friend. See Ellington v. Bradford, 86
20
White is an appellate court decision prior to 1935 and thus is not binding authority
because it predates an amendment to the Courts Act that conferred precedential authority to
Illinois Appellate Court decisions. See Graham v. White-Phillips Co., 296 U.S. 27, 31 (1935);
Chicago Title & Trust Co. v. Vance, 175 Ill. App. 3d 600, 606 (1988) (citing Ill. Rev. Stat. 1935,
ch. 37, ¶ 41). Nevertheless, the holding and rationale of White is consistent with Fox, which was
issued after 1935.
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S.E.2d 925, 926-27 (N.C. 1955) (a hospital’s lien may attach to a minor’s recovery when the
parent, as next friend, has brought and prosecuted an action for the minor child and claimed
medical expenses as an element of the damages because that parent is deemed to have waived his
individual right to recover those medical expense and is estopped from asserting them); cf.
Abbondola v. Kawecki, 29 N.Y.S.2d 530, 531 (1941) (where the minor plaintiff did not claim
medical expenses and recovered a judgment for personal injuries, and the father—in his own
action—recovered a judgment for medical expenses incurred, and the hospital had an equitable
lien on the father’s recovery by virtue of an assignment by the father, the hospital could not also
recover its statutory lien for medical expenses against the minor).
¶ 76 According to the record, the caption and text of the second amended complaint establish
that Akeem’s mother brought suit only on behalf of Akeem, a minor, as next friend.
Furthermore, that complaint includes within Akeem’s claim for damages for his injuries the
statement that Akeem’s mother incurred medical expenses on his behalf. Despite this clear
indication in the record concerning the proper identity of the plaintiff in this case, the trial judge
erroneously referred in his written decision to Akeem’s mother as a plaintiff who brought her
own count and claim for medical expenses. Although the bench trial commenced without a court
reporter and the record on appeal does not include a bystander’s report of the trial, the absence of
a transcript or bystander’s report does not raise any doubts concerning the proper parties in this
case, Akeem’s claim for damages for his injuries and reimbursement for medical expenses, or the
validity of the hospital’s perfected lien. Thus, I disagree with the majority’s conclusions that the
County failed to provide a sufficiently complete record to support its claim of error and this court
may presume that Akeem’s mother was an additional plaintiff who brought her own count and
claim for medical expenses. Supra ¶ 7 n.4. The record also establishes that Akeem’s mother
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testified on his behalf, and the parties stipulated to the admission into evidence of the medical
bills she was given for Akeem’s treatment at the hospital and the amounts of those bills. See
Wills v. Foster, 229 Ill. 2d 393, 420 (2008) (by stipulating to the admission into evidence of the
amounts billed by medical providers and failing to offer any objection, the tortfeasor relieved the
injured plaintiff motorist of the burden of establishing the reasonableness of the amounts billed).
¶ 77 Under these circumstances, the County was entitled to enforcement of its lien under the
Act on Akeem’s recovery in his personal injury cause of action. When an injured person recovers
any damages for his injury, the Act permits enforcement of a lien in favor of any health care
professional or provider who treated the injuries for which the damages were recovered.
Ordinarily, Akeem, as a minor plaintiff, would not be permitted to claim medical expenses in an
action against the tortfeasors because the liability for a minor’s medical expenses is the liability
of the parent. However, because the Act provides a rather extraordinary remedy in derogation of
the common law, it is only in certain circumstances that the recovery of a minor would be subject
to a hospital’s lien, such as when, for some reason, a parent cannot or will not claim those
expenses from one who has tortiously injured the child. See Fox, 343 Ill. App. at 411; White, 258
Ill. App. at 326; Ellington, 86 S.E.2d at 926-27. Here, the hospital’s lien may attach to Akeem’s
recovery because his mother is estopped from claiming those medical expenses against the
tortfeasors where she brought the suit on behalf of Akeem as next friend, alleged the medical
expenses were incurred as a result of the tortfeasors’ negligence, and testified on Akeem’s
behalf. Id. Moreover, Akeem has failed to appeal the trial court’s erroneous denial of relief for
the stipulated medical expenses.
¶ 78 Because the Act allows a hospital lienholder to recover unpaid medical expenses from all
claims the injured patient has against the tortfeasors, it would be illogical to conclude that a
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perfected hospital lien should not be applied against the proceeds of the minor injured plaintiff’s
personal injury judgment. The majority’s interpretation of the Act leaves hospitals at the mercy
of the parents or guardians who might or might not, as they saw fit, assert a cause of action for
medical expenses. See Charles S. Wilson Memorial Hospital, 208 N.Y.S.2d at 231. Moreover,
the hospital’s perfected statutory lien cannot be eliminated simply by the trial court’s erroneous
denial of an award to the plaintiff for stipulated medical expenses and the plaintiff’s subsequent
failure to appeal that erroneous ruling. Under the circumstances of this case, it would be
unconscionable to permit Akeem to receive free medical care for his injuries and recover
damages from the tortfeasors for those injuries without any setoff for the medical expenses
directly related to those injuries. To do so would violate the explicit provisions of the Act,
deprive a nonprofit, public hospital of much needed funding, and force the hospital to expend
further resources to attempt to recover the medical expenses from the parent.
¶ 79 For the foregoing reasons, I respectfully dissent from the majority’s judgment affirming
the judgment of the circuit court.
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