APPEAL FROM THE CIRCUIT COURT OF COOK COUNTY. THE HONORABLE LESTER FOREMAN, JUDGE PRESIDING
Released for Publication April 19, 1994. Petition for Leave to Appeal Denied June 2, 1994. As Corrected July 29, 1994.
Gordon, McNULTY, Cousins, Jr.
The opinion of the court was delivered by: Gordon
JUSTICE GORDON delivered the opinion of the court:
Plaintiffs appeal the decision of the circuit court of Cook County dismissing their class action complaint for declaratory and injunctive relief against the defendants, Illinois Department of Public Health and its director, John Lumpkin, M.D. (State defendants); Richard M. Daley, mayor of Chicago, the Chicago Board of Health and its president, Whitney Addington, M.D., and the Chicago Department of Health (City defendants); and the Cook County Board of Commissioners as the Cook County Board of Health (incorrectly sued as the Cook County Board of Commissioners) and the County of Cook (incorrectly sued as the Bureau of Health Services) (County defendants). The complaint alleges that certain actions and inactions of defendants regarding efforts to restrict and suppress the spread of tuberculosis (TB) in Chicago violated section 2 of the Department of Public Health Act (DPHA) (20 ILCS 2305/2 (West 1992)), entitled "Powers and duties" which concerns both State and local public health authorities. That provision states in pertinent part:
"The State Department of Public Health has general supervision of the interest of the health and lives of the people of the State. * * * The Department may adopt, promulgate, repeal and amend rules and regulations and make such sanitary investigations and inspections as it may from time to time deem necessary for the preservation and improvement of the public health * * *.
All local boards of health, health authorities and officers, police officers, sheriffs and all other officers and employees of the state or any locality shall enforce the rules and regulations so adopted.
The Department of Public Health shall investigate the causes of dangerously contagious or infectious diseases, especially when existing in epidemic form, and take means to restrict and suppress the same, and whenever such disease becomes, or threatens to become epidemic, in any locality and the local board of health or local authorities neglect or refuse to enforce efficient measures for its restriction or suppression or to act with sufficient promptness or efficiency, or whenever the local board of health or local authorities neglect or refuse to promptly enforce efficient measures for the restriction or suppression of dangerously contagious or infectious diseases, the Department of Public Health may enforce such measures as it deems necessary to protect the public health, and all necessary expenses so incurred shall be paid by the locality for which services are rendered.
As used in the Act, 'locality' means any governmental agency which exercises power pertaining to public health in an area less than the State."
20 ILCS 2305/2 (West 1992).
The complaint further alleges that the County defendants have also violated section 5-25013(A)(7) of the Counties Code (55 ILCS 5/5-25013(A)(7)(West 1992)) which states that a board of health shall "within its jurisdiction, and professional and technical competence, investigate the existence of any contagious or infectious disease and adopt measures, not inconsistent with the regulations of the State Department of Public Health, to arrest the progress of the same." 55 ILCS 5/5-25013(A)(7)(West 1992).
According to the complaint, TB is an acute or chronic infectious pulmonary disease characterized by "fever, chills, night sweats, malaise, weight loss, coughing, the accumulation of sputum, chest pain and difficulty in breathing." The complaint states that, although the disease is fatal within five years in approximately 50% of the cases which go untreated, most TB patients are treatable and "highly curable" where there is early diagnosis and treatment. Plaintiffs aver that TB can be detected (1) by administering a relatively inexpensive skin test and measuring the skin reaction 48 to 72 hours later and (2) where skin test results are positive, by taking a chest xray to determine if the patient has active TB.
The complaint further states that six to twelve months of preventive therapy may be needed for persons who have positive skin test results but do not have active TB, while those with active TB usually receive a multiple drug treatment regimen for six to nine months. In some active cases, "directly observed therapy" (DOT) is indicated, i.e., medication is administered under the direct supervision of a health care worker. Where the treatment regimen is not completed or drugs are prescribed improperly, certain strains of TB become resistant to the standard treatment drugs.
According to the complaint, tuberculosis is caused mainly by inhalation of airborne particles containing bacteria, resulting in a substantially higher risk of infection among those persons in close contact with infected persons. Plaintiffs allege that tuberculosis is a "dangerously contagious disease" as that term is defined in the DPHA and a "contagious and infectious disease" under the terms of the Counties Code. They further allege that tuberculosis exists in epidemic proportions in certain areas of Chicago and among the homeless in Chicago and that a tuberculosis epidemic is threatened in Chicago, as a whole, and in Cook County.
The complaint alleges that there were 751 confirmed active TB cases in Chicago in 1991 and 793 cases in 1992, amounting to 60% ofall reported cases in Illinois; that the annual incidence of new TB cases in Chicago rose 22% over the period 1987-1992; that the percentage of Chicago inhabitants with TB is four times that for the rest of Cook County and six times that for the rest of the State; that in 1991 there were active TB cases in 17 Chicago public schools.
Plaintiffs also allege that, while the TB rate in Chicago as a whole is 28.5 cases per 100,000, the rate among Chicago's increasing homeless population is 90 cases per 100,000 and that the neighborhoods with the highest number of reported TB cases in 1991 and 1992 were among the poorest neighborhoods with the greatest number of homeless persons, including Chicago's Uptown, Austin, Grand Boulevard, Near West Side, North Lawndale, New City and West Englewood areas. Plaintiffs aver that the incidence of TB is substantially higher among the poor because poor housing, insufficient health care, and poor nutrition are contributing factors to the spread of the disease. It is alleged that homeless persons are at particular increased risk because the likelihood of contracting TB is greater in cramped, poorly ventilated living or sleeping quarters, a condition allegedly existing in many shelters for the homeless.
Plaintiffs allege that the State defendants have violated section 2 of the DPHA, (20 ILCS 2305/2 (West 1993)), in that they have (1) failed to investigate the causes of, and to take means to suppress and restrict, TB in Chicago, except that they have compiled data provided by the City defendants and they have provided limited technical assistance to the Chicago Department of Health; (2) failed to ascertain whether the City defendants and the County defendants have taken efficient measures to restrict and suppress TB in Chicago; and (3) failed to ensure implementation of an effective public awareness campaign, an effective program for screening populations at risk for TB, an effective program for appropriate treatment to TB sufferers, or an effective system for tracking or reporting TB cases.
The allegations against the City defendants are that they have violated the same statute by failing to enforce efficient measures to restrict and suppress TB in Chicago. Specifically, the complaint alleges that the City defendants have (1) failed to implement an effective public awareness campaign regarding TB; (2) failed to implement an effective program for TB screening and diagnosis among populations at high risk of infection, in that the City defendants have not met their own screening and diagnosis goals and have not conducted regular screening in homeless shelters or Chicago public schools; (3) failed to provide preventive therapy or ensure completion of such medically indicated therapy for some persons; (4) failed to provide adequate alternative housing for a sufficient numberof homeless persons with active TB; (5) failed to implement an effective treatment program for persons with active TB; and (6) failed to implement an effective case reporting and tracking system. Plaintiffs state in their brief that this failure to enforce efficient measures to restrict TB includes failure to enforce State public health regulations which adopt the TB Guidelines of the Center for Disease Control. For example, the regulations require availability of health education materials to schools and information on disease trends to health care providers, appropriate inpatient, outpatient and home care services as defined by the American Thoracic Society, and follow up for at least 90% of persons in close contact with active TB patients. (See 77 Ill. Admin. Code § 615.350 (1990).) The complaint, however, does not explicitly allege violations of State regulations in particular.
The plaintiffs' claims against the County defendants primarily pertain to conduct at two facilities located in Chicago and operated by Cook County: Cook County Hospital, which serves residents of Cook County, including Chicagoans, and Cermak Health Services, which provides medical services to Cook County Jail inmates. Specifically, plaintiffs charge that, in violation of section 2 of the DPHA and section 5-25013 of the Counties Code, an insufficient number of isolation rooms is available at Cook County Hospital or Cermak Health Services, the number of TB field workers is insufficient to provide necessary patient follow-up and supervised therapy for patients at those facilities, and no screening program exists among county employees working at Cook County Jail where there is a high incidence of TB. Plaintiffs also claim that the County defendants have failed to take necessary measures within Chicago which are required to prevent the spread of a TB epidemic to suburban Cook County.
In May 1993, the named plaintiffs filed a two count complaint on behalf of themselves and a class consisting of "all persons in Chicago, Illinois who, on or after January 1, 1991, have been, are or will be 'homeless' as defined in 42 U.S.C. § 11302(2)." Of the named plaintiffs, two are alleged to have contracted TB, while the others are alleged to be at an increased risk of contracting the disease because of defendants' failure to provide efficient measures to restrict TB in Chicago.
One of the class representatives is a homeless Chicago man who was diagnosed with TB at a private hospital in 1990. The complaint alleges that, although he received medication from the private hospital and later from Cook County Hospital, he did not receive proper medical follow up from the Chicago Department of Health or Cook County Hospital, resulting in his TB becoming resistant to twodrugs commonly used in treatment. According to the complaint, although he currently receives weekly treatment from a Chicago Department of Health nurse, he is in need of a stable living situation for the duration of his therapy.
Also named as class representatives are three Chicago women and their minor children, all of whom are homeless and reside in homeless shelters in Chicago. They allege that the shelters are often overcrowded and poorly ventilated, sometimes with all residents either sleeping or eating in one room. The children attend Chicago public schools. These plaintiffs allege that, because of defendants' actions and inactions, particularly as they affect the homeless and children in Chicago public schools, they are at a ...